I agree with Phil for the need to distinguish between the kinds of actions that constitute "interference by the US". For example, criminal charges against a ICANN employee for embezzlement heard in a US court would not constitute interference by the US. However, interference in policy-making functions or compelling changes to the DNS root zone would indeed constitute interference by the US. There is need to create a proper definition of "interference by the US" in this regard. However, I'm glad that Phil finally does agree that interference by the US is a possibility! The reactions to such interference could be step wise or escalatory. In my opinion, changing jurisdictions should indeed be a possible response but only in the worst case or as the last step of the escalatory ladder in case preceding steps fail. Such a response must be preceded by other measures that do not require change in jurisdiction. However, this escalatory ladder of options must publicly make it explicitly clear that change in jurisdiction is indeed a valid option in case the US continues to interfere! On Thu, Jun 23, 2016 at 1:09 AM, Phil Corwin <psc@vlaw-dc.com> wrote:

So long as we have a common understanding of what would constitute “interference by the U.S. government” (of which there has been little to none since ICANN’s inception, with the possible exception of the delay in .xxx delegation to the root). I presume you are advocating deciding upon a process to address such an occurrence, rather than making a decision now about an alternate jurisdiction for a situation that may never arise, or occur decades from now.

I’ll start that discussion by stating that it would likely include interference in ICANN’s policymaking process (outside of advocacy within the GAC) or trying to block or compel a change in the root zone, through methods that are inconsistent with the Bylaws.

I don’t think it should include private litigation brought against ICANN and heard in state or federal court; or law enforcement actions, such as bringing an antitrust action if there is an allegation of illicit pricing decisions, or criminal charges against an ICANN employee for embezzlement, etc.

*Philip S. Corwin, Founding Principal*

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*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Mueller, Milton L *Sent:* Wednesday, June 22, 2016 3:15 PM *To:* Guru Acharya; Roelof Meijer *Cc:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] premature jurisdiction debates

In the reflexive approach, you would ask "what are the institutional mechanisms or procedures to ensure that jurisdiction issue can be addressed in an adverse situation where the US jurisdiction is longer tenable, however rare it may it?" In the absolute rarest of rare cases that the US legislature or judiciary try to interfere with community decisions (the black swan scenario), how would ICANN ensure that this interference is contained/minimised? What are the institutional mechanisms or procedures for addressing the situation where the US (or any other) jurisdiction is no longer hospitable/ideal for the ICANN policymaking or IANA functions? These are the questions that we should be asking in the WS2 on jurisdiction.

MM: I think this is a good point. Even advocates of US jurisdiction or those who, like me, think there is just no better alternative and that the disruption and risks caused by a change are not worth the uncertain improvements, can easily agree that there should be procedures or plans for how to respond to interference by the U.S. government.

Dr. Milton L. Mueller

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Georgia Institute of Technology

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Em 22 de jun de 2016, à(s) 16:39:000, Phil Corwin <psc@vlaw-dc.com> escreveu:

So long as we have a common understanding of what would constitute “interference by the U.S. government” (of which there has been little to none since ICANN’s inception, with the possible exception of the delay in .xxx delegation to the root). I presume you are advocating deciding upon a process to address such an occurrence, rather than making a decision now about an alternate jurisdiction for a situation that may never arise, or occur decades from now.

I’ll start that discussion by stating that it would likely include interference in ICANN’s policymaking process (outside of advocacy within the GAC) or trying to block or compel a change in the root zone, through methods that are inconsistent with the Bylaws.

I don’t think it should include private litigation brought against ICANN and heard in state or federal court; or law enforcement actions, such as bringing an antitrust action if there is an allegation of illicit pricing decisions, or criminal charges against an ICANN employee for embezzlement, etc.

There is already litigation in California and federal courts that would compel changes in the root zone, like the litigation against the ccTLDs of Syria and Iran, or the current .africa litigation... so this interference of the US legal system within ICANN policy making process is already happening in some cases or imminent in others. Rubens

Agree with Greg. I’m not familiar with the details of the Syria litigation, but the one involving Iran was brought under a US law that allows for seizure of foreign assets for the benefit of the victims (or families) of state-sponsored terrorism. The district court found against the plaintiff and the lawsuit has not been supported by the US Government (I believe it is on appeal). The .africa dispute involves ICANN but is primarily a dispute between two private parties seeking that gTLD, and looks to be nearing conclusion. While the type and outcome of such litigation will vary by national jurisdiction, lawsuits of this type are possible so long as ICANN is domiciled in a nations-state. I would hope there is general acceptance that ICANN should be subject to some body of law (or bodies, as Greg points out for its non-US offices) and not exist in a law-free zone. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: Greg Shatan [mailto:gregshatanipc@gmail.com] Sent: Wednesday, June 22, 2016 4:30 PM To: Rubens Kuhl Cc: Phil Corwin; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] premature jurisdiction debates Lawsuits in US courts are not "interference of the United States," unless the United States is the plaintiff. In the US, courts are limited to hearing disputes between private parties. The US courts do not (as in some jurisdictions) have any proactive, prosecutorial or investigative powers. (In limited circumstances, in the context of an actual litigation, the court can appoint experts, but that's about as far as that goes.) The cases Rubens cites are disputes between private parties or between a private party and ICANN. The US court is the forum for those disputes. This is not "interference of the United States." If ICANN were located in another jurisdiction, that jurisdiction's courts would be hearing these disputes. Notably, ICANN is subject to being sued in other countries where it has offices, so there are already alternatives if plaintiffs want to find a different venue in which to seek redress. While this is a possibility, I believe all plaintiffs that have sued ICANN have done so in the US. This may say something about the appeal of the US as a jurisdiction for resolving disputes. Greg On Wed, Jun 22, 2016 at 4:13 PM, Rubens Kuhl <rubensk@nic.br<mailto:rubensk@nic.br>> wrote: Em 22 de jun de 2016, à(s) 16:39:000, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> escreveu: So long as we have a common understanding of what would constitute “interference by the U.S. government” (of which there has been little to none since ICANN’s inception, with the possible exception of the delay in .xxx delegation to the root). I presume you are advocating deciding upon a process to address such an occurrence, rather than making a decision now about an alternate jurisdiction for a situation that may never arise, or occur decades from now. I’ll start that discussion by stating that it would likely include interference in ICANN’s policymaking process (outside of advocacy within the GAC) or trying to block or compel a change in the root zone, through methods that are inconsistent with the Bylaws. I don’t think it should include private litigation brought against ICANN and heard in state or federal court; or law enforcement actions, such as bringing an antitrust action if there is an allegation of illicit pricing decisions, or criminal charges against an ICANN employee for embezzlement, etc. There is already litigation in California and federal courts that would compel changes in the root zone, like the litigation against the ccTLDs of Syria and Iran, or the current .africa litigation... so this interference of the US legal system within ICANN policy making process is already happening in some cases or imminent in others. Rubens _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7497 / Virus Database: 4613/12467 - Release Date: 06/21/16

Greg is correct. But ICANN also can be sued even in places where it does not have offices, if its actions are deemed to have sufficient effects in such jurisdictions. France, for example, has become notorious for allowing suits against foreign companies based on their internet services accessible in France -- but France is far from alone, and indeed our jurisdictional principles in the US maintain this same concept. Mike Rodenbaugh RODENBAUGH LAW tel/fax: +1.415.738.8087 http://rodenbaugh.com On Wed, Jun 22, 2016 at 1:30 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:

Lawsuits in US courts are not "interference of the United States," unless the United States is the plaintiff. In the US, courts are limited to hearing disputes between private parties. The US courts do not (as in some jurisdictions) have any proactive, prosecutorial or investigative powers. (In limited circumstances, in the context of an actual litigation, the court can appoint experts, but that's about as far as that goes.)

The cases Rubens cites are disputes between private parties or between a private party and ICANN. The US court is the forum for those disputes. This is not "interference of the United States."

If ICANN were located in another jurisdiction, that jurisdiction's courts would be hearing these disputes. Notably, ICANN is subject to being sued in other countries where it has offices, so there are already alternatives if plaintiffs want to find a different venue in which to seek redress. While this is a possibility, I believe all plaintiffs that have sued ICANN have done so in the US. This may say something about the appeal of the US as a jurisdiction for resolving disputes.

Greg

On Wed, Jun 22, 2016 at 4:13 PM, Rubens Kuhl <rubensk@nic.br> wrote:

...

Em 22 de jun de 2016, à(s) 16:39:000, Phil Corwin <psc@vlaw-dc.com> escreveu:

So long as we have a common understanding of what would constitute “interference by the U.S. government” (of which there has been little to none since ICANN’s inception, with the possible exception of the delay in .xxx delegation to the root). I presume you are advocating deciding upon a process to address such an occurrence, rather than making a decision now about an alternate jurisdiction for a situation that may never arise, or occur decades from now.

I’ll start that discussion by stating that it would likely include interference in ICANN’s policymaking process (outside of advocacy within the GAC) or trying to block or compel a change in the root zone, through methods that are inconsistent with the Bylaws.

I don’t think it should include private litigation brought against ICANN and heard in state or federal court; or law enforcement actions, such as bringing an antitrust action if there is an allegation of illicit pricing decisions, or criminal charges against an ICANN employee for embezzlement, etc.

There is already litigation in California and federal courts that would compel changes in the root zone, like the litigation against the ccTLDs of Syria and Iran, or the current .africa litigation... so this interference of the US legal system within ICANN policy making process is already happening in some cases or imminent in others.

Rubens

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On Thursday 23 June 2016 02:00 AM, Greg Shatan wrote:

Lawsuits in US courts are not "interference of the United States," unless the United States is the plaintiff. In the US, courts are limited to hearing disputes between private parties.

Courts do not enforce plaintiff’s will, *they enforce the law of the US*. A plaintiff's appeal is just the trigger or the proximate cause. This is quite basic. Not sure why we are discussing such basic factual stuff, and are confused about them. Just because they help a case for sticking to US jurisdiction!? Bec if somehow law can be proved to be neutral, technical, kind of thing, then one can pursue the argument that it doesnt matter which one is employed. Law is something that comes from the 'will of the people' of a particular nation and is therefore legitimately specific to it, and is illegitimate to apply to others. Tweaking the famous call from US independence struggle "no taxation without representation" to "no legislation without representation". Taxation is after also a law, and its enforcement. If freedom and self- representation was important to the US centuries ago, and hopefully still is, please give some consideration to the rest of the world too. A humble appeal. A comment below on another regularly expressed confusion ...

The US courts do not (as in some jurisdictions) have any proactive, prosecutorial or investigative powers. (In limited circumstances, in the context of an actual litigation, the court can appoint experts, but that's about as far as that goes.)

The cases Rubens cites are disputes between private parties or between a private party and ICANN. The US court is the forum for those disputes. This is not "interference of the United States."

If ICANN were located in another jurisdiction, that jurisdiction's courts would be hearing these disputes. Notably, ICANN is subject to being sued in other countries where it has offices,

It is only useful to sue an organisation in a country whose judicial authorities can enforce their decisions over that organisation, as US courts can over ICANN as a US registered body. It is vain to and meaningless to sue it elsewhere. Most courts outside would even refuse to take on the case pointing to the pointlessness of it.... BTW, if it was the same about suing it wherever ICANN was, why then not let it be in a non US location... Why is US and the USians so keen to keep it in the US, so much so that the jurisdiction issue even suddenly disappears from the agenda of the workstream 2, only to make an reappearance bec Brazil gov is too strong a party to be treated lightly :) parminder

so there are already alternatives if plaintiffs want to find a different venue in which to seek redress. While this is a possibility, I believe all plaintiffs that have sued ICANN have done so in the US. This may say something about the appeal of the US as a jurisdiction for resolving disputes.

Greg

On Wed, Jun 22, 2016 at 4:13 PM, Rubens Kuhl <rubensk@nic.br <mailto:rubensk@nic.br>> wrote:

...

Em 22 de jun de 2016, à(s) 16:39:000, Phil Corwin <psc@vlaw-dc.com <mailto:psc@vlaw-dc.com>> escreveu:

So long as we have a common understanding of what would constitute “interference by the U.S. government” (of which there has been little to none since ICANN’s inception, with the possible exception of the delay in .xxx delegation to the root). I presume you are advocating deciding upon a process to address such an occurrence, rather than making a decision now about an alternate jurisdiction for a situation that may never arise, or occur decades from now.

I’ll start that discussion by stating that it would likely include interference in ICANN’s policymaking process (outside of advocacy within the GAC) or trying to block or compel a change in the root zone, through methods that are inconsistent with the Bylaws.

I don’t think it should include private litigation brought against ICANN and heard in state or federal court; or law enforcement actions, such as bringing an antitrust action if there is an allegation of illicit pricing decisions, or criminal charges against an ICANN employee for embezzlement, etc.

There is already litigation in California and federal courts that would compel changes in the root zone, like the litigation against the ccTLDs of Syria and Iran, or the current .africa litigation... so this interference of the US legal system within ICANN policy making process is already happening in some cases or imminent in others.

Rubens

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On Saturday 25 June 2016 01:40 AM, Paul Rosenzweig wrote:

“Courts do not enforce plaintiff’s will, *they enforce the law of the US*. A plaintiff's appeal is just the trigger or the proximate cause. This is quite basic. Not sure why we are discussing such basic factual stuff, and are confused about them.” (Parminder)

I guess we discuss them because some people are in fact confused about them. This is a good example – US courts (like many others around the globe) often apply the laws of foreign jurisdictions and not the laws of the United States to disputes.

The main job of US courts is to apply US law. US private law would maintain that if two parties enter into a contract, they must observe the condition of the contract, as far as it is lawful (per the US law) and within the overall prior application of public law to their relationship. Now, it is possible that foreign laws may be sub parts of that contractual arrangement, but any such thing is highly subordinate to the application of relevant US laws, its public laws as well as laws and canons of fairness, process etc vis a vis private law. I am not a lawyer, and I can see that you are. But even for me, the hierarchy and the clear distinction are evident as just political common sense. It is completely wrong to suggest that depending on what the parties may have pre-decided foreign laws could take precedence over US laws in the mind and acts of a US court.

So the basic answer is that the courts adjudicate the laws as directed … by statute or by the parties.

Public law of the US would apply as a prior category to any issue.

Here in the US, for example, we often apply English law; we apply admiralty law of nations; and I have personally participated as a representative in a dispute in which the principal question involved the laws of Germany. We apply these laws to disputes because the contract between the parties so directs. If ICANN said in its registry contracts (for example) that the suit would be heard in US courts but that the law of Switzerland would apply the US courts would honor that designation.

As elements of a contract between the two parties - which can in any case be written by the two party as they wish - *as long as it is consistent and within the US law*, right. And as said, US public law fully applies. Can ICANN and a registry put in its contract that Indian intellectual property law will apply to the elements and objects of their contract and not US? Of course not.

ICANN indeed is free to designate ANY venue in the globe and ANY applicable substantive law it wishes for its contractual disputes and the US courts would enforce those contracts. Despite your contention otherwise, the only aspect of US law that cannot be contractually derogated from because of ICANN’s incorporation in California is the California law regarding the formation and operation of corporations.

See my IP law example. Can ICANN, together with the contracting registry, decide to immune itself and a gTLD from US Intellectual property law ? Most DNS interferences in the US take place because of IP related motivations. It will be great if such a thing can be done. ICANN must really look into it, and choose a developing country IP jurisdiction for all its contracts, and thus gTLDs, which jurisdictions are the lightest and least obtrusive IP wise. Your arguments continue to only think of private law, and I think even in that area they do not hold. But do realise that most current gTLD/ ccTLD disputes in the US are under public law -- .xxx under competition law and .ir under terrorism related laws. Are you saying that at the stage of the contract ICANN could have immunised itself from these US laws by choosing some other country’s laws as applicable to the particular contracts and their subject, the gTLD or ccTLD? parminder

Paul

Paul

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*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *parminder *Sent:* Friday, June 24, 2016 11:55 AM *To:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] premature jurisdiction debates

On Thursday 23 June 2016 02:00 AM, Greg Shatan wrote:

Lawsuits in US courts are not "interference of the United States," unless the United States is the plaintiff. In the US, courts are limited to hearing disputes between private parties.

Courts do not enforce plaintiff’s will, *they enforce the law of the US*. A plaintiff's appeal is just the trigger or the proximate cause. This is quite basic. Not sure why we are discussing such basic factual stuff, and are confused about them. Just because they help a case for sticking to US jurisdiction!? Bec if somehow law can be proved to be neutral, technical, kind of thing, then one can pursue the argument that it doesnt matter which one is employed.

Law is something that comes from the 'will of the people' of a particular nation and is therefore legitimately specific to it, and is illegitimate to apply to others. Tweaking the famous call from US independence struggle "no taxation without representation" to "no legislation without representation". Taxation is after also a law, and its enforcement. If freedom and self- representation was important to the US centuries ago, and hopefully still is, please give some consideration to the rest of the world too. A humble appeal.

A comment below on another regularly expressed confusion ...

The US courts do not (as in some jurisdictions) have any proactive, prosecutorial or investigative powers. (In limited circumstances, in the context of an actual litigation, the court can appoint experts, but that's about as far as that goes.)

The cases Rubens cites are disputes between private parties or between a private party and ICANN. The US court is the forum for those disputes. This is not "interference of the United States."

If ICANN were located in another jurisdiction, that jurisdiction's courts would be hearing these disputes. Notably, ICANN is subject to being sued in other countries where it has offices,

It is only useful to sue an organisation in a country whose judicial authorities can enforce their decisions over that organisation, as US courts can over ICANN as a US registered body. It is vain to and meaningless to sue it elsewhere. Most courts outside would even refuse to take on the case pointing to the pointlessness of it....

BTW, if it was the same about suing it wherever ICANN was, why then not let it be in a non US location... Why is US and the USians so keen to keep it in the US, so much so that the jurisdiction issue even suddenly disappears from the agenda of the workstream 2, only to make an reappearance bec Brazil gov is too strong a party to be treated lightly :)

parminder

so there are already alternatives if plaintiffs want to find a different venue in which to seek redress. While this is a possibility, I believe all plaintiffs that have sued ICANN have done so in the US. This may say something about the appeal of the US as a jurisdiction for resolving disputes.

Greg

On Wed, Jun 22, 2016 at 4:13 PM, Rubens Kuhl <rubensk@nic.br <mailto:rubensk@nic.br>> wrote:

Em 22 de jun de 2016, à(s) 16:39:000, Phil Corwin <psc@vlaw-dc.com <mailto:psc@vlaw-dc.com>> escreveu:

So long as we have a common understanding of what would constitute “interference by the U.S. government” (of which there has been little to none since ICANN’s inception, with the possible exception of the delay in .xxx delegation to the root). I presume you are advocating deciding upon a process to address such an occurrence, rather than making a decision now about an alternate jurisdiction for a situation that may never arise, or occur decades from now.

I’ll start that discussion by stating that it would likely include interference in ICANN’s policymaking process (outside of advocacy within the GAC) or trying to block or compel a change in the root zone, through methods that are inconsistent with the Bylaws.

I don’t think it should include private litigation brought against ICANN and heard in state or federal court; or law enforcement actions, such as bringing an antitrust action if there is an allegation of illicit pricing decisions, or criminal charges against an ICANN employee for embezzlement, etc.

There is already litigation in California and federal courts that would compel changes in the root zone, like the litigation against the ccTLDs of Syria and Iran, or the current .africa litigation... so this interference of the US legal system within ICANN policy making process is already happening in some cases or imminent in others.

Rubens

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On Saturday 25 June 2016 07:36 PM, Paul Rosenzweig wrote:

Sorry Parminder, but this is just not accurate. If I enter into a contract that says “Indian intellectual property law will apply to the elements and objects of their contract and not US?” the US courts will apply Indian law.

Thanks Paul. This is very interesting. Let me see if we are speaking about the same thing. Do you mean that (1) Rojadirecta, is a Spanish sports video streaming service, whose business model was found perfectly legitimate by Spanish courts but whose website was seized by the US Homeland Security's Immigration and Customs Enforcement (ICE) division <https://www.techdirt.com/articles/20110201/10252412910/homeland-security-sei...> on copyright violation grounds. Now, lets say rojadirecta applies to ICANN for a closed or private use gTLD .rojadirecta, can ICANN and rojadirecta agree that Spanish copyrights law alone will apply to this new gTLD, and not US laws, which after all makes sense bec rojadirecta is a Spanish company with its primary business there? And if they do so agree and put in the contract, the mentioned US agency will not be able to seize the gTLD citing US copyrights law violation, and if they do seize it, US courts will reverse the decision on the grounds that US IP law does not apply to the gTLD? I very much doubt it could that way, but extremely interested to hear your professional views on this. (2) Similarly, if .ir ccTLD holders had put in a contract with ICANN that on .ir only Iranian laws, of this and this kind, will apply, and not US law, we would not even have the current litigation around .ir that we have? (Then certainly all ccTLDs should get ICANN to make such a contract with them!)

Maybe it is different in India, where I guess you are a lawyer – but not here in the US.

Oh no, I am no lawyer, as I said in my last email. In fact I have no kind of legal training at all. parminder

Paul

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*From:*parminder [mailto:parminder@itforchange.net] *Sent:* Saturday, June 25, 2016 6:56 AM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] premature jurisdiction debates

On Saturday 25 June 2016 01:40 AM, Paul Rosenzweig wrote:

“Courts do not enforce plaintiff’s will, *they enforce the law of the US*. A plaintiff's appeal is just the trigger or the proximate cause. This is quite basic. Not sure why we are discussing such basic factual stuff, and are confused about them.” (Parminder)

I guess we discuss them because some people are in fact confused about them. This is a good example – US courts (like many others around the globe) often apply the laws of foreign jurisdictions and not the laws of the United States to disputes.

The main job of US courts is to apply US law. US private law would maintain that if two parties enter into a contract, they must observe the condition of the contract, as far as it is lawful (per the US law) and within the overall prior application of public law to their relationship. Now, it is possible that foreign laws may be sub parts of that contractual arrangement, but any such thing is highly subordinate to the application of relevant US laws, its public laws as well as laws and canons of fairness, process etc vis a vis private law. I am not a lawyer, and I can see that you are. But even for me, the hierarchy and the clear distinction are evident as just political common sense. It is completely wrong to suggest that depending on what the parties may have pre-decided foreign laws could take precedence over US laws in the mind and acts of a US court.

So the basic answer is that the courts adjudicate the laws as directed … by statute or by the parties.

Public law of the US would apply as a prior category to any issue.

Here in the US, for example, we often apply English law; we apply admiralty law of nations; and I have personally participated as a representative in a dispute in which the principal question involved the laws of Germany. We apply these laws to disputes because the contract between the parties so directs. If ICANN said in its registry contracts (for example) that the suit would be heard in US courts but that the law of Switzerland would apply the US courts would honor that designation.

As elements of a contract between the two parties - which can in any case be written by the two party as they wish - *as long as it is consistent and within the US law*, right. And as said, US public law fully applies. Can ICANN and a registry put in its contract that Indian intellectual property law will apply to the elements and objects of their contract and not US? Of course not.

ICANN indeed is free to designate ANY venue in the globe and ANY applicable substantive law it wishes for its contractual disputes and the US courts would enforce those contracts. Despite your contention otherwise, the only aspect of US law that cannot be contractually derogated from because of ICANN’s incorporation in California is the California law regarding the formation and operation of corporations.

See my IP law example. Can ICANN, together with the contracting registry, decide to immune itself and a gTLD from US Intellectual property law ? Most DNS interferences in the US take place because of IP related motivations. It will be great if such a thing can be done. ICANN must really look into it, and choose a developing country IP jurisdiction for all its contracts, and thus gTLDs, which jurisdictions are the lightest and least obtrusive IP wise.

Your arguments continue to only think of private law, and I think even in that area they do not hold. But do realise that most current gTLD/ ccTLD disputes in the US are under public law -- .xxx under competition law and .ir under terrorism related laws. Are you saying that at the stage of the contract ICANN could have immunised itself from these US laws by choosing some other country’s laws as applicable to the particular contracts and their subject, the gTLD or ccTLD?

parminder

Paul

Paul

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*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *parminder *Sent:* Friday, June 24, 2016 11:55 AM *To:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] premature jurisdiction debates

On Thursday 23 June 2016 02:00 AM, Greg Shatan wrote:

Lawsuits in US courts are not "interference of the United States," unless the United States is the plaintiff. In the US, courts are limited to hearing disputes between private parties.

Courts do not enforce plaintiff’s will, *they enforce the law of the US*. A plaintiff's appeal is just the trigger or the proximate cause. This is quite basic. Not sure why we are discussing such basic factual stuff, and are confused about them. Just because they help a case for sticking to US jurisdiction!? Bec if somehow law can be proved to be neutral, technical, kind of thing, then one can pursue the argument that it doesnt matter which one is employed.

Law is something that comes from the 'will of the people' of a particular nation and is therefore legitimately specific to it, and is illegitimate to apply to others. Tweaking the famous call from US independence struggle "no taxation without representation" to "no legislation without representation". Taxation is after also a law, and its enforcement. If freedom and self- representation was important to the US centuries ago, and hopefully still is, please give some consideration to the rest of the world too. A humble appeal.

A comment below on another regularly expressed confusion ...

The US courts do not (as in some jurisdictions) have any proactive, prosecutorial or investigative powers. (In limited circumstances, in the context of an actual litigation, the court can appoint experts, but that's about as far as that goes.)

The cases Rubens cites are disputes between private parties or between a private party and ICANN. The US court is the forum for those disputes. This is not "interference of the United States."

If ICANN were located in another jurisdiction, that jurisdiction's courts would be hearing these disputes. Notably, ICANN is subject to being sued in other countries where it has offices,

It is only useful to sue an organisation in a country whose judicial authorities can enforce their decisions over that organisation, as US courts can over ICANN as a US registered body. It is vain to and meaningless to sue it elsewhere. Most courts outside would even refuse to take on the case pointing to the pointlessness of it....

BTW, if it was the same about suing it wherever ICANN was, why then not let it be in a non US location... Why is US and the USians so keen to keep it in the US, so much so that the jurisdiction issue even suddenly disappears from the agenda of the workstream 2, only to make an reappearance bec Brazil gov is too strong a party to be treated lightly :)

parminder

so there are already alternatives if plaintiffs want to find a different venue in which to seek redress. While this is a possibility, I believe all plaintiffs that have sued ICANN have done so in the US. This may say something about the appeal of the US as a jurisdiction for resolving disputes.

Greg

On Wed, Jun 22, 2016 at 4:13 PM, Rubens Kuhl <rubensk@nic.br <mailto:rubensk@nic.br>> wrote:

Em 22 de jun de 2016, à(s) 16:39:000, Phil Corwin <psc@vlaw-dc.com <mailto:psc@vlaw-dc.com>> escreveu:

So long as we have a common understanding of what would constitute “interference by the U.S. government” (of which there has been little to none since ICANN’s inception, with the possible exception of the delay in .xxx delegation to the root). I presume you are advocating deciding upon a process to address such an occurrence, rather than making a decision now about an alternate jurisdiction for a situation that may never arise, or occur decades from now.

I’ll start that discussion by stating that it would likely include interference in ICANN’s policymaking process (outside of advocacy within the GAC) or trying to block or compel a change in the root zone, through methods that are inconsistent with the Bylaws.

I don’t think it should include private litigation brought against ICANN and heard in state or federal court; or law enforcement actions, such as bringing an antitrust action if there is an allegation of illicit pricing decisions, or criminal charges against an ICANN employee for embezzlement, etc.

There is already litigation in California and federal courts that would compel changes in the root zone, like the litigation against the ccTLDs of Syria and Iran, or the current .africa litigation... so this interference of the US legal system within ICANN policy making process is already happening in some cases or imminent in others.

Rubens

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On Saturday 25 June 2016 09:55 PM, Alberto Soto wrote:

What would result if this text, replacing US law by: Italian laws? or Belgium laws? Or …laws?

There is something called international law..... Like we are an international community working on an international issue, there is also international law. best, parminder

Kind regards

Alberto Soto

*De:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *En nombre de *parminder *Enviado el:* sábado, 25 de junio de 2016 12:04 p.m. *Para:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; accountability-cross-community@icann.org *Asunto:* Re: [CCWG-ACCT] premature jurisdiction debates

On Saturday 25 June 2016 07:36 PM, Paul Rosenzweig wrote:

Sorry Parminder, but this is just not accurate. If I enter into a contract that says “Indian intellectual property law will apply to the elements and objects of their contract and not US?” the US courts will apply Indian law.

Thanks Paul. This is very interesting.

Let me see if we are speaking about the same thing. Do you mean that

(1) Rojadirecta, is a Spanish sports video streaming service, whose business model was found perfectly legitimate by Spanish courts but whose website was seized by the US Homeland Security's Immigration and Customs Enforcement (ICE) division <https://www.techdirt.com/articles/20110201/10252412910/homeland-security-sei...> on copyright violation grounds. Now, lets say rojadirecta applies to ICANN for a closed or private use gTLD .rojadirecta, can ICANN and rojadirecta agree that Spanish copyrights law alone will apply to this new gTLD, and not US laws, which after all makes sense bec rojadirecta is a Spanish company with its primary business there? And if they do so agree and put in the contract, the mentioned US agency will not be able to seize the gTLD citing US copyrights law violation, and if they do seize it, US courts will reverse the decision on the grounds that US IP law does not apply to the gTLD? I very much doubt it could that way, but extremely interested to hear your professional views on this.

(2) Similarly, if .ir ccTLD holders had put in a contract with ICANN that on .ir only Iranian laws, of this and this kind, will apply, and not US law, we would not even have the current litigation around .ir that we have? (Then certainly all ccTLDs should get ICANN to make such a contract with them!)

Maybe it is different in India, where I guess you are a lawyer – but not here in the US.

Oh no, I am no lawyer, as I said in my last email. In fact I have no kind of legal training at all.

parminder

Paul

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*From:*parminder [mailto:parminder@itforchange.net] *Sent:* Saturday, June 25, 2016 6:56 AM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> <mailto:paul.rosenzweig@redbranchconsulting.com>; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] premature jurisdiction debates

On Saturday 25 June 2016 01:40 AM, Paul Rosenzweig wrote:

“Courts do not enforce plaintiff’s will, *they enforce the law of the US*. A plaintiff's appeal is just the trigger or the proximate cause. This is quite basic. Not sure why we are discussing such basic factual stuff, and are confused about them.” (Parminder)

I guess we discuss them because some people are in fact confused about them. This is a good example – US courts (like many others around the globe) often apply the laws of foreign jurisdictions and not the laws of the United States to disputes.

The main job of US courts is to apply US law. US private law would maintain that if two parties enter into a contract, they must observe the condition of the contract, as far as it is lawful (per the US law) and within the overall prior application of public law to their relationship. Now, it is possible that foreign laws may be sub parts of that contractual arrangement, but any such thing is highly subordinate to the application of relevant US laws, its public laws as well as laws and canons of fairness, process etc vis a vis private law. I am not a lawyer, and I can see that you are. But even for me, the hierarchy and the clear distinction are evident as just political common sense. It is completely wrong to suggest that depending on what the parties may have pre-decided foreign laws could take precedence over US laws in the mind and acts of a US court.

So the basic answer is that the courts adjudicate the laws as directed … by statute or by the parties.

Public law of the US would apply as a prior category to any issue.

Here in the US, for example, we often apply English law; we apply admiralty law of nations; and I have personally participated as a representative in a dispute in which the principal question involved the laws of Germany. We apply these laws to disputes because the contract between the parties so directs. If ICANN said in its registry contracts (for example) that the suit would be heard in US courts but that the law of Switzerland would apply the US courts would honor that designation.

As elements of a contract between the two parties - which can in any case be written by the two party as they wish - *as long as it is consistent and within the US law*, right. And as said, US public law fully applies. Can ICANN and a registry put in its contract that Indian intellectual property law will apply to the elements and objects of their contract and not US? Of course not.

ICANN indeed is free to designate ANY venue in the globe and ANY applicable substantive law it wishes for its contractual disputes and the US courts would enforce those contracts. Despite your contention otherwise, the only aspect of US law that cannot be contractually derogated from because of ICANN’s incorporation in California is the California law regarding the formation and operation of corporations.

See my IP law example. Can ICANN, together with the contracting registry, decide to immune itself and a gTLD from US Intellectual property law ? Most DNS interferences in the US take place because of IP related motivations. It will be great if such a thing can be done. ICANN must really look into it, and choose a developing country IP jurisdiction for all its contracts, and thus gTLDs, which jurisdictions are the lightest and least obtrusive IP wise.

Your arguments continue to only think of private law, and I think even in that area they do not hold. But do realise that most current gTLD/ ccTLD disputes in the US are under public law -- .xxx under competition law and .ir under terrorism related laws. Are you saying that at the stage of the contract ICANN could have immunised itself from these US laws by choosing some other country’s laws as applicable to the particular contracts and their subject, the gTLD or ccTLD?

parminder

Paul

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*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *parminder *Sent:* Friday, June 24, 2016 11:55 AM *To:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] premature jurisdiction debates

On Thursday 23 June 2016 02:00 AM, Greg Shatan wrote:

Lawsuits in US courts are not "interference of the United States," unless the United States is the plaintiff. In the US, courts are limited to hearing disputes between private parties.

Courts do not enforce plaintiff’s will, *they enforce the law of the US*. A plaintiff's appeal is just the trigger or the proximate cause. This is quite basic. Not sure why we are discussing such basic factual stuff, and are confused about them. Just because they help a case for sticking to US jurisdiction!? Bec if somehow law can be proved to be neutral, technical, kind of thing, then one can pursue the argument that it doesnt matter which one is employed.

Law is something that comes from the 'will of the people' of a particular nation and is therefore legitimately specific to it, and is illegitimate to apply to others. Tweaking the famous call from US independence struggle "no taxation without representation" to "no legislation without representation". Taxation is after also a law, and its enforcement. If freedom and self- representation was important to the US centuries ago, and hopefully still is, please give some consideration to the rest of the world too. A humble appeal.

A comment below on another regularly expressed confusion ...

The US courts do not (as in some jurisdictions) have any proactive, prosecutorial or investigative powers. (In limited circumstances, in the context of an actual litigation, the court can appoint experts, but that's about as far as that goes.)

The cases Rubens cites are disputes between private parties or between a private party and ICANN. The US court is the forum for those disputes. This is not "interference of the United States."

If ICANN were located in another jurisdiction, that jurisdiction's courts would be hearing these disputes. Notably, ICANN is subject to being sued in other countries where it has offices,

It is only useful to sue an organisation in a country whose judicial authorities can enforce their decisions over that organisation, as US courts can over ICANN as a US registered body. It is vain to and meaningless to sue it elsewhere. Most courts outside would even refuse to take on the case pointing to the pointlessness of it....

BTW, if it was the same about suing it wherever ICANN was, why then not let it be in a non US location... Why is US and the USians so keen to keep it in the US, so much so that the jurisdiction issue even suddenly disappears from the agenda of the workstream 2, only to make an reappearance bec Brazil gov is too strong a party to be treated lightly :)

parminder

so there are already alternatives if plaintiffs want to find a different venue in which to seek redress. While this is a possibility, I believe all plaintiffs that have sued ICANN have done so in the US. This may say something about the appeal of the US as a jurisdiction for resolving disputes.

Greg

On Wed, Jun 22, 2016 at 4:13 PM, Rubens Kuhl <rubensk@nic.br <mailto:rubensk@nic.br>> wrote:

Em 22 de jun de 2016, à(s) 16:39:000, Phil Corwin <psc@vlaw-dc.com <mailto:psc@vlaw-dc.com>> escreveu:

So long as we have a common understanding of what would constitute “interference by the U.S. government” (of which there has been little to none since ICANN’s inception, with the possible exception of the delay in .xxx delegation to the root). I presume you are advocating deciding upon a process to address such an occurrence, rather than making a decision now about an alternate jurisdiction for a situation that may never arise, or occur decades from now.

I’ll start that discussion by stating that it would likely include interference in ICANN’s policymaking process (outside of advocacy within the GAC) or trying to block or compel a change in the root zone, through methods that are inconsistent with the Bylaws.

I don’t think it should include private litigation brought against ICANN and heard in state or federal court; or law enforcement actions, such as bringing an antitrust action if there is an allegation of illicit pricing decisions, or criminal charges against an ICANN employee for embezzlement, etc.

There is already litigation in California and federal courts that would compel changes in the root zone, like the litigation against the ccTLDs of Syria and Iran, or the current .africa litigation... so this interference of the US legal system within ICANN policy making process is already happening in some cases or imminent in others.

Rubens

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And is generally declaratory in nature. There is if course international private law but ICANN already operates under that. And international criminal law. Which is irrelevant to us. Par minder, you may have seen how I challenged another lawyer on this list when he made an unjustified assumption recently. We say: "what is your authority for that proposition?" It's what a judge might say. It means "tell me the rule of law on which you rely " If as non lawyer you want to join in .. And lawyers do welcome rational submission .. You should nonetheless expect to be asked this question a LOT. Sent from my iPhone

On 26 Jun 2016, at 10:00, Dr Eberhard W Lisse <el@lisse.NA> wrote:

Unless I am mistaken, International Law regulates relations between states and nations and requires treaties between such states/nations.

el

...

On 2016-06-26 07:24 , parminder wrote:

...

On Saturday 25 June 2016 09:55 PM, Alberto Soto wrote:

What would result if this text, replacing US law by: Italian laws? or Belgium laws? Or …laws?

There is something called international law..... Like we are an international community working on an international issue, there is also international law. best, parminder [...]

On Sunday 26 June 2016 01:57 PM, Nigel Roberts wrote:

And is generally declaratory in nature.

Generally, but not always. Look at the investor-to-state dispute settlements system, which provides enforceable means to protect investors' (individual legal entities and not states) rights. EU recently proposed a new Investment Court System <http://europa.eu/rapid/press-release_IP-15-5651_en.htm> for two trade treaties that it is involved in. The same proposal also seeks movement towards an International Investment Court in the future. Note both that this is not declaratory but enforceable international law, and that it involves the rights and claims of individual entities and not states. No reason why a similar treaty based court cannot be established for DNS related disputes, issuing enforceable judgements. Internet is primarily global, not becuase of a technical necessity but as a collective value (on the other hand, trade and investment, the subject of about international enforcible law, are only secondarily international). We chose Internet to be global. We could have, and still can, make it national state based. Every country gets a ccTLD, and all domains names are on them, and necessarily have a .in, .us, .de, etc at the end. Like every geographical addresses ends in a country name. There will be no global level domain name policy left to be dealt with in that case. But we did not do it, becuase we value a 'primarily global' Internet. But to have one, in a legitimate way, we need to be ready to make the necessary innovations in global/international law as well. We cannot have a global Internet without effective global/international law. Basically, we cannot have have a global Internet run by US laws. Period.

There is if course international private law but ICANN already operates under that.

And international criminal law. Which is irrelevant to us.

Par minder, you may have seen how I challenged another lawyer on this list when he made an unjustified assumption recently.

We say: "what is your authority for that proposition?"

It's what a judge might say.

It means "tell me the rule of law on which you rely "

If as non lawyer you want to join in .. And lawyers do welcome rational submission ..

You should nonetheless expect to be asked this question a LOT.

As I have done above, always happy to answer all questions. Meanwhile, in good lawyerly tradition :) , why you too also not answer some of my questions that are key to framing this debate. Like (1) What is ICANN's plan to do if it gets adverse US court judgements in .xxx and .africa cases (even .ir is still in the courts)? Is there no plan at all, which would be absolutely inappropriate for a responsible organisation. Is the plan to just accept the judgements, and make necessary policy/ operational changes? If so, the world needs to know NOW, when jurisdiction is being discussed, and not realise later when the event happens, the enormity of US courts dictating global DNS policy. To repeat, ICANN must right away put forward its plan and position in this regard, which is an absolutely important, actually necessary, thing to know for those discussing the jurisdiction question as part of work stream 2. (2) These above are existing cases, now with 100s of new gTLDs issued to every kind of organisation and for every kind of activity, you are going to get so many more cases in the US courts of the above kind. What do you plan vis a vis them? Also, please see the hypothetical case in my last email, if rojadirecta takes .rojadirecta as a closed gTLD, and after some time, as they did once earlier through its US based registry, US authorities want to seize the .rojadirecta, which can now only be done at the root file level, and for that sends a order to ICANN, what would ICANN do? Again, necessary to know while we are in middle of jurisdiction decision. If ICANN officially (highly preferred), or otherwise at least the lawyers here involved on the 'keep US jurisdiction' side of the discussion, can respond to these questions, it would form a good basis to move forward. I am sure lawyers will also oblige the non lawyers, as I answered your questions promptly :) parminder

Sent from my iPhone

...

On 26 Jun 2016, at 10:00, Dr Eberhard W Lisse <el@lisse.NA> wrote:

Unless I am mistaken, International Law regulates relations between states and nations and requires treaties between such states/nations.

el

...

On 2016-06-26 07:24 , parminder wrote:

...

On Saturday 25 June 2016 09:55 PM, Alberto Soto wrote:

What would result if this text, replacing US law by: Italian laws? or Belgium laws? Or …laws? There is something called international law..... Like we are an international community working on an international issue, there is also international law. best, parminder [...]

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There is no international corporate law. Therefore there is no means by which ICANN can be organized as a non-profit entity under international law but for a treaty arrangement such as that for the Red Cross. How long would that take, what would that cost, and what is the justification? Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design." -- Branch Rickey From:wolfgang.kleinwaechter@medienkomm.uni-halle.de Sent:June 26, 2016 12:27 PM To:parminder@itforchange.net; asoto@ibero-americano.org; paul.rosenzweig@redbranchconsulting.com; accountability-cross-community@icann.org Subject:Re: [CCWG-ACCT] premature jurisdiction debates P: There is something called international law..... Like we are an international community working on an international issue, there is also international law. W: I am always perplexed that we have the same discussion again and again. The subject of international law is the state, represented by its government. Governments negotiate treaties. The primary source of international law is the Charter of the United Nations. The seven principles there - including sovereign equality of states - are seen as jus cogens. The rules for treaties are laid down in the the Vienna Convention on the Law of Treaties. Governments can delegate some rights - via an international treaty - to an intergovernmental organisation, as UNESCO, ITU and others.Such organizations become a subject sui generis under international law and can negotiate treaties with their host countries. Governments can also create international courts - as the International court of justice in The Hague or the Rome Statute. But in case of a conflict, the conflicting parties are governments, not private legal or natural persons. This is rather different from what we have with ICANN. ICANN is a non-for profit private corporations which operates n the public interest. In its Articles of Incorporation ICANN makes clear that in operates within the framework of international law. That means ICANN respect the national sovereignty of states, does not interfere into internal affairs of other countries etc. But ICANN is not a subject under international law. Governments participate in ICANN in an advisory role. The role is specified in the bylaws. If Parminder proposes an intergovernmental organizations for the governance of the Internet (or an intergovernmental framework convention for the domain name system) he should say so. Theoretically this is an option. Governments are free to negotiate anything as long as they find negotiation partners. It took 25 years to negotiate the 3rd Law of th Sea Convention. It took more than 20 years to negotiate the Rome Treaty. An the negotiations for a treaty on climate change started in the early 1990s. At this stage I do not see any intention of governments to enter into a new intergovernmental codification conference to negotiate an Internet treaty. BTW, individuals can start a case against private corporations if those corporations violate their rights they have in the country where they live. The case Schrems vs. Facebook is a good example. Facebook is incorporated in the US but does business in Europe. The European Court of Justice decided that Facebook has to respect the rights of privacy of Mr. Schrems, a citizen of Austria. Hope this helps to end this useless debate. Wolfgang _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Par minder, I see a distinction which you may not, but it might help clarify the points at debate. I see two layers here, for want of a better term. One is the actual work of ICANN's policy making, contract development and so on. That's being done in a fashion supported by a corporation (ICANN the legal entity). The legal environment in which ICANN the corporation exists is California, USA. The first, the set of activities that ICANN actually does, are location agnostic. They could happen anywhere, in any jurisdiction. As long as that jurisdiction allowed the legal entity to organise itself as it saw fit, more or less, it'd be fine. The second, the legal environment, has to be somewhere. I take it from Wolfgang's comments and my own understanding, and actually from this email from you, that there's no "International Law" environment that could take the place of a national jurisdiction in which ICANN could base itself, unless such an international legal basis was created. For me, personally, the important point is that ICANN related decisions are made within the ICANN system. I am not fussed about the jurisdiction in which the corporation exists as a practical matter so long as that overall point is maintained. Since it would take years or decades to establish an international law basis under which ICANN could operate, even if it was at all possible, there needs to be *some* jurisdiction used. California seems fit for purpose in the sense that it has been able to accommodate the WS1 and Stewardship Transition frameworks agreed by the community. The costs of doing all that again to move jurisdiction should, I think, only be entertained if there other currently undisclosed problems with CA, and benefits in another jurisdiction, that outweigh the costs of change. It's not clear to me that there are such advantages available anywhere given the flexibility of the CA framework. Doesn't mean they don't exist tho, just that I don't see them :-) If this is a matter of politics per se, then I guess I just don't identify with that as significant. ICANN could be incorporated as a non profit in New Zealand, or India, or the United States -- I really don't mind. As long as the rule of law was clear, the courts were available and competent, and the rules allowed the organisation to be what it needs to be -- why does the particular nationality of the entity in its legal reality matter? best Jordan I think the following points are uncontroversial On 26 June 2016 at 12:16, parminder <parminder@itforchange.net> wrote:

On Sunday 26 June 2016 03:27 PM, Phil Corwin wrote:

There is no international corporate law. Therefore there is no means by which ICANN can be organized as a non-profit entity under international law but for a treaty arrangement such as that for the Red Cross.

Yes, it will be incorporated under special international law created for that purpose.

How long would that take,

First we have to just decide to do it (that is all to be done at this stage - which can be done within weeks or a few months of discussion), then let it take the needed time as long as everyone is working in good faith... It can even be done in 6-12 months, a simple basic text that incorporates existing ICANN functions and processes. There is a clear incentive for those who wants things changed vis a vis US jurisdiction to go through the process fast, and for those preferring the status quo to keep the text short and as far as possible making an exact replica of present ICANN at the international level. Once we agree on these principles, things can move really fast. In the interim, of course the status quo of US jurisdiction remains, and so there is no loss.

what would that cost,

what kind of costs?

and what is the justification?

This brings us to the square one of this discussion, while I thought you/ we were moving forward. The simplest statement of the justification is: a global Internet cannot be run by US law [no legislation (or adjudication) without representation]. For implications of this justification, you may try to answer the questions that I just asked Nigel (and had earlier also asked you).

parminder

Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell

Twitter: @VlawDC

"Luck is the residue of design." -- Branch Rickey *From:*wolfgang.kleinwaechter@medienkomm.uni-halle.de *Sent:*June 26, 2016 12:27 PM *To:*parminder@itforchange.net; asoto@ibero-americano.org; paul.rosenzweig@redbranchconsulting.com; accountability-cross-community@icann.org *Subject:*Re: [CCWG-ACCT] premature jurisdiction debates

P: There is something called international law..... Like we are an international community working on an international issue, there is also international law.

W: I am always perplexed that we have the same discussion again and again. The subject of international law is the state, represented by its government. Governments negotiate treaties. The primary source of international law is the Charter of the United Nations. The seven principles there - including sovereign equality of states - are seen as jus cogens. The rules for treaties are laid down in the the Vienna Convention on the Law of Treaties. Governments can delegate some rights - via an international treaty - to an intergovernmental organisation, as UNESCO, ITU and others.Such organizations become a subject sui generis under international law and can negotiate treaties with their host countries. Governments can also create international courts - as the International court of justice in The Hague or the Rome Statute. But in case of a conflict, the conflicting parties are governments, not private legal or natural persons.

This is rather different from what we have with ICANN. ICANN is a non-for profit private corporations which operates n the public interest. In its Articles of Incorporation ICANN makes clear that in operates within the framework of international law. That means ICANN respect the national sovereignty of states, does not interfere into internal affairs of other countries etc. But ICANN is not a subject under international law. Governments participate in ICANN in an advisory role. The role is specified in the bylaws.

If Parminder proposes an intergovernmental organizations for the governance of the Internet (or an intergovernmental framework convention for the domain name system) he should say so. Theoretically this is an option. Governments are free to negotiate anything as long as they find negotiation partners. It took 25 years to negotiate the 3rd Law of th Sea Convention. It took more than 20 years to negotiate the Rome Treaty. An the negotiations for a treaty on climate change started in the early 1990s. At this stage I do not see any intention of governments to enter into a new intergovernmental codification conference to negotiate an Internet treaty.

BTW, individuals can start a case against private corporations if those corporations violate their rights they have in the country where they live. The case Schrems vs. Facebook is a good example. Facebook is incorporated in the US but does business in Europe. The European Court of Justice decided that Facebook has to respect the rights of privacy of Mr. Schrems, a citizen of Austria.

Hope this helps to end this useless debate.

Wolfgang _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

-- Jordan Carter Wellington, New Zealand +64 21 442 649 jordan@jordancarter.org.nz

On Sunday 26 June 2016 06:08 PM, parminder wrote:

Jordan

You construct law as something fully technical when it actually is basically political, that is the major difference between your approach and mine. What is the fact can however been seen in actual implications. Even the laws of incorporation that enables a non profit to organise and operate (for which there are admittedly little inter-jurisdiction differences) still mean that any incorporated organisation is full subject to every one of the thousands of public laws, about whom there are never any options. As you can see, most key domain name cases that ICANN is involved in pertain to public laws, and I have been making elaborate comments on that part. I asked a few questions to Nigel, very specific ones which would clarify the implications of the jurisdiction issue. Neither he or anyone else seems to be willing to respond to them. Maybe you can try. The implications of the jursidiction question wil come through very clearly...

Sorry, forgot to re state the questions. This also goes with the approach proposed by Pedro that we look first at scenarios and their implications on ICANN substantive policy remits. (1) What is ICANN's plan to do if it gets adverse US court judgements in .xxx and .africa cases (even .ir is still in the courts)? Is there no plan at all, which would be absolutely inappropriate for a responsible organisation. Is the plan to just accept the judgements, and make necessary policy/ operational changes? If so, the world needs to know NOW, when jurisdiction is being discussed, and not realise later when the event happens, the enormity of US courts dictating global DNS policy. To repeat, ICANN must right away put forward its plan and position in this regard, which is an absolutely important, actually necessary, thing to know for those discussing the jurisdiction question as part of work stream 2. (2) These above are existing cases, now with 100s of new gTLDs issued to every kind of organisation and for every kind of activity, you are going to get so many more cases in the US courts of the above kind. What do you plan vis a vis them? Also, please see the hypothetical case in my last email, if rojadirecta takes .rojadirecta as a closed gTLD, and after some time, as they did once earlier through its US based registry, US authorities want to seize the .rojadirecta, which can now only be done at the root file level, and for that sends a order to ICANN, what would ICANN do? Again, necessary to know while we are in middle of jurisdiction decision. Responses to these scenarios and their stated implications will be appreciated.. parminder

best, parminder

On Sunday 26 June 2016 04:31 PM, Jordan Carter wrote:

...

Par minder,

I see a distinction which you may not, but it might help clarify the points at debate.

I see two layers here, for want of a better term. One is the actual work of ICANN's policy making, contract development and so on. That's being done in a fashion supported by a corporation (ICANN the legal entity).

The legal environment in which ICANN the corporation exists is California, USA.

The first, the set of activities that ICANN actually does, are location agnostic. They could happen anywhere, in any jurisdiction. As long as that jurisdiction allowed the legal entity to organise itself as it saw fit, more or less, it'd be fine.

The second, the legal environment, has to be somewhere. I take it from Wolfgang's comments and my own understanding, and actually from this email from you, that there's no "International Law" environment that could take the place of a national jurisdiction in which ICANN could base itself, unless such an international legal basis was created.

For me, personally, the important point is that ICANN related decisions are made within the ICANN system. I am not fussed about the jurisdiction in which the corporation exists as a practical matter so long as that overall point is maintained.

Since it would take years or decades to establish an international law basis under which ICANN could operate, even if it was at all possible, there needs to be *some* jurisdiction used.

California seems fit for purpose in the sense that it has been able to accommodate the WS1 and Stewardship Transition frameworks agreed by the community. The costs of doing all that again to move jurisdiction should, I think, only be entertained if there other currently undisclosed problems with CA, and benefits in another jurisdiction, that outweigh the costs of change.

It's not clear to me that there are such advantages available anywhere given the flexibility of the CA framework. Doesn't mean they don't exist tho, just that I don't see them :-)

If this is a matter of politics per se, then I guess I just don't identify with that as significant. ICANN could be incorporated as a non profit in New Zealand, or India, or the United States -- I really don't mind. As long as the rule of law was clear, the courts were available and competent, and the rules allowed the organisation to be what it needs to be -- why does the particular nationality of the entity in its legal reality matter?

best Jordan

I think the following points are uncontroversial

On 26 June 2016 at 12:16, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:

On Sunday 26 June 2016 03:27 PM, Phil Corwin wrote:

...

There is no international corporate law. Therefore there is no means by which ICANN can be organized as a non-profit entity under international law but for a treaty arrangement such as that for the Red Cross.

Yes, it will be incorporated under special international law created for that purpose.

...

How long would that take,

First we have to just decide to do it (that is all to be done at this stage - which can be done within weeks or a few months of discussion), then let it take the needed time as long as everyone is working in good faith... It can even be done in 6-12 months, a simple basic text that incorporates existing ICANN functions and processes. There is a clear incentive for those who wants things changed vis a vis US jurisdiction to go through the process fast, and for those preferring the status quo to keep the text short and as far as possible making an exact replica of present ICANN at the international level. Once we agree on these principles, things can move really fast. In the interim, of course the status quo of US jurisdiction remains, and so there is no loss.

...

what would that cost,

what kind of costs?

...

and what is the justification?

This brings us to the square one of this discussion, while I thought you/ we were moving forward. The simplest statement of the justification is: a global Internet cannot be run by US law [no legislation (or adjudication) without representation]. For implications of this justification, you may try to answer the questions that I just asked Nigel (and had earlier also asked you).

parminder

...

Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell

Twitter: @VlawDC

"Luck is the residue of design." -- Branch Rickey *From:*wolfgang.kleinwaechter@medienkomm.uni-halle.de *Sent:*June 26, 2016 12:27 PM *To:*parminder@itforchange.net; asoto@ibero-americano.org <mailto:asoto@ibero-americano.org>; paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:*Re: [CCWG-ACCT] premature jurisdiction debates

P: There is something called international law..... Like we are an international community working on an international issue, there is also international law.

W: I am always perplexed that we have the same discussion again and again. The subject of international law is the state, represented by its government. Governments negotiate treaties. The primary source of international law is the Charter of the United Nations. The seven principles there - including sovereign equality of states - are seen as jus cogens. The rules for treaties are laid down in the the Vienna Convention on the Law of Treaties. Governments can delegate some rights - via an international treaty - to an intergovernmental organisation, as UNESCO, ITU and others.Such organizations become a subject sui generis under international law and can negotiate treaties with their host countries. Governments can also create international courts - as the International court of justice in The Hague or the Rome Statute. But in case of a conflict, the conflicting parties are governments, not private legal or natural persons.

This is rather different from what we have with ICANN. ICANN is a non-for profit private corporations which operates n the public interest. In its Articles of Incorporation ICANN makes clear that in operates within the framework of international law. That means ICANN respect the national sovereignty of states, does not interfere into internal affairs of other countries etc. But ICANN is not a subject under international law. Governments participate in ICANN in an advisory role. The role is specified in the bylaws.

If Parminder proposes an intergovernmental organizations for the governance of the Internet (or an intergovernmental framework convention for the domain name system) he should say so. Theoretically this is an option. Governments are free to negotiate anything as long as they find negotiation partners. It took 25 years to negotiate the 3rd Law of th Sea Convention. It took more than 20 years to negotiate the Rome Treaty. An the negotiations for a treaty on climate change started in the early 1990s. At this stage I do not see any intention of governments to enter into a new intergovernmental codification conference to negotiate an Internet treaty.

BTW, individuals can start a case against private corporations if those corporations violate their rights they have in the country where they live. The case Schrems vs. Facebook is a good example. Facebook is incorporated in the US but does business in Europe. The European Court of Justice decided that Facebook has to respect the rights of privacy of Mr. Schrems, a citizen of Austria.

Hope this helps to end this useless debate.

Wolfgang _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

-- Jordan Carter Wellington, New Zealand

+64 21 442 649 jordan@jordancarter.org.nz <mailto:jordan@jordancarter.org.nz>

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

On Sunday 26 June 2016 07:08 PM, Nigel Roberts wrote:

Parminde

If you believe that the law is largely political, then you are professing that you do not believe in the Rule of Law.

This is an absolute stunner! I really do not know what you understand with 'political' which surprises me even more since you have had a long career in the government. Were in your country the law of the 'rule of law' made by by anyone other than that political parliament!? Law comes from a due process out of a political community, which then is bound by it. Or, are in your views society's laws like the laws of physics, a given natural reality - which would then make then 'technical' and not 'political'.

And that sets your views at odds with the multistakeholderism which most of us have been building for 20 years.

If multistakeholderism is about depoliticing laws and rules of our collective governance, I stand in full opposition to it. depoliticisation is de-democratization, making laws as some kind of natural reality, which is but a convenient cover to impose the will of the elite over the society. This is not the place to go into political-democratic theoty discourses, but your claims, and a similar subsequent one by Andrew, does surprise me a lot.

You do not have to be a lawyer to participate constructively, but you do have believe in rule by laws (rules), NOT rule by men (people).

Rile of law as replacing rule of men was meant as replacing arbitrary rule of feudal lords and other feudal authorities in the feudal age. This is however the first time I am hearing that the term 'political' is synonymous with that kind of feudal power structure. The Brexit and the ensuing political rumblings/events in your country arent political?! I am sure Nigel you are going to revise a comment you seem to be made in unthinking haste.

Therefore ICANN needs to be in a jurisdiction which is under the rule of law,

Well, in fact, I do now-a-days hear comments that directly or indirectly place rule of law in opposition to democracy and politics... I have a well developed explanation of this post-democratic phenomenon, but that some time else. Meanwhile I do see with interest, if regret, the issue of ICANN jurisdiction being placed in this post-democratic matrix. But then, there is simply no way to defend continued unilateral US jurisdiction on ICANN in any kind of democratic way.... BTW, Nigil ,I do note that you did not care to respond to the two direct questions I posted to you about the problems with current jurisdiction status of ICANN, even though I answered all your questions. Do you intend to ? parminder

where access to remedies does not have high barriers political influence on the judiciary is at a minimum.

California's not where I suggested it be, back in 1998.

But it will do.

On 26/06/16 14:01, parminder wrote:

...

On Sunday 26 June 2016 06:08 PM, parminder wrote:

...

Jordan

You construct law as something fully technical when it actually is basically political, that is the major difference between your approach and mine.

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Parminder, On Sunday, 26 June 2016, parminder <parminder@itforchange.net> wrote:

On Sunday 26 June 2016 06:08 PM, parminder wrote:

Jordan

You construct law as something fully technical when it actually is basically political, that is the major difference between your approach and mine.

Wrong. Law is power, in its essence, nothing more and nothing less. I

don't know any way to see it differently. Please don't make assumptions about my approach — we have barely exchanged anything on this or any other topic. In this arena tho, I don't see the public or founding law under which Icann is established as being very relevant.

What is the fact can however been seen in actual implications. Even the laws of incorporation that enables a non profit to organise and operate (for which there are admittedly little inter-jurisdiction differences) still mean that any incorporated organisation is full subject to every one of the thousands of public laws, about whom there are never any options.

Undoubtedly. When you choose a jurisdiction you don't choose only those laws you want.

As you can see, most key domain name cases that ICANN is involved in pertain to public laws, and I have been making elaborate comments on that part. I asked a few questions to Nigel, very specific ones which would clarify the implications of the jurisdiction issue. Neither he or anyone else seems to be willing to respond to them. Maybe you can try. The implications of the jursidiction question wil come through very clearly...

It is worth saying I am not and have never been a lawyer. :-)

Sorry, forgot to re state the questions. This also goes with the approach proposed by Pedro that we look first at scenarios and their implications on ICANN substantive policy remits.

(1) What is ICANN's plan to do if it gets adverse US court judgements in .xxx and .africa cases (even .ir is still in the courts)?

What do you mean by adverse? The courts I assume would rule against Icann if it failed to follow its own process effectively but would not seek to impose their judgement on substantive questions. But, see above about not being a lawyer.

Is there no plan at all, which would be absolutely inappropriate for a responsible organisation. Is the plan to just accept the judgements, and make necessary policy/ operational changes? If so, the world needs to know NOW, when jurisdiction is being discussed, and not realise later when the event happens, the enormity of US courts dictating global DNS policy. To repeat, ICANN must right away put forward its plan and position in this regard, which is an absolutely important, actually necessary, thing to know for those discussing the jurisdiction question as part of work stream 2.

This isn't a question per se. But whatever the jurisdiction, the only party responsible for making sure Icann policy frameworks are well written and legally robust, and that Icann follows them, is Icann. To the extent it fails in those things it invites courts of any sort to be involved.

(2) These above are existing cases, now with 100s of new gTLDs issued to every kind of organisation and for every kind of activity, you are going to get so many more cases in the US courts of the above kind. What do you plan vis a vis them?

I would hope ICANN's plan is to have clear policy and processes and to follow them. That is all it can do. It is irrelevant what jurisdiction applies - no matter where Icann was founded or established, the courts could still be involved.

Also, please see the hypothetical case in my last email, if rojadirecta takes .rojadirecta as a closed gTLD, and after some time, as they did once earlier through its US based registry, US authorities want to seize the .rojadirecta, which can now only be done at the root file level, and for that sends a order to ICANN, what would ICANN do? Again, necessary to know while we are in middle of jurisdiction decision

I don't know. I'm not a gtld person per se. Has the US ever successfully 'siezed' a TLD? Wouldn't the relevant registry keep operating anyway and the technical community simply 'route around the damage' if Icann or the root zone operator complied with US attempts? Jordan

Responses to these scenarios and their stated implications will be appreciated.. parminder

best, parminder

On Sunday 26 June 2016 04:31 PM, Jordan Carter wrote:

Par minder,

I see a distinction which you may not, but it might help clarify the points at debate.

I see two layers here, for want of a better term. One is the actual work of ICANN's policy making, contract development and so on. That's being done in a fashion supported by a corporation (ICANN the legal entity).

The legal environment in which ICANN the corporation exists is California, USA.

The first, the set of activities that ICANN actually does, are location agnostic. They could happen anywhere, in any jurisdiction. As long as that jurisdiction allowed the legal entity to organise itself as it saw fit, more or less, it'd be fine.

The second, the legal environment, has to be somewhere. I take it from Wolfgang's comments and my own understanding, and actually from this email from you, that there's no "International Law" environment that could take the place of a national jurisdiction in which ICANN could base itself, unless such an international legal basis was created.

For me, personally, the important point is that ICANN related decisions are made within the ICANN system. I am not fussed about the jurisdiction in which the corporation exists as a practical matter so long as that overall point is maintained.

Since it would take years or decades to establish an international law basis under which ICANN could operate, even if it was at all possible, there needs to be *some* jurisdiction used.

California seems fit for purpose in the sense that it has been able to accommodate the WS1 and Stewardship Transition frameworks agreed by the community. The costs of doing all that again to move jurisdiction should, I think, only be entertained if there other currently undisclosed problems with CA, and benefits in another jurisdiction, that outweigh the costs of change.

It's not clear to me that there are such advantages available anywhere given the flexibility of the CA framework. Doesn't mean they don't exist tho, just that I don't see them :-)

If this is a matter of politics per se, then I guess I just don't identify with that as significant. ICANN could be incorporated as a non profit in New Zealand, or India, or the United States -- I really don't mind. As long as the rule of law was clear, the courts were available and competent, and the rules allowed the organisation to be what it needs to be -- why does the particular nationality of the entity in its legal reality matter?

best Jordan

I think the following points are uncontroversial

On 26 June 2016 at 12:16, parminder <parminder@itforchange.net <javascript:_e(%7B%7D,'cvml','parminder@itforchange.net');>> wrote:

...

On Sunday 26 June 2016 03:27 PM, Phil Corwin wrote:

There is no international corporate law. Therefore there is no means by which ICANN can be organized as a non-profit entity under international law but for a treaty arrangement such as that for the Red Cross.

Yes, it will be incorporated under special international law created for that purpose.

How long would that take,

First we have to just decide to do it (that is all to be done at this stage - which can be done within weeks or a few months of discussion), then let it take the needed time as long as everyone is working in good faith... It can even be done in 6-12 months, a simple basic text that incorporates existing ICANN functions and processes. There is a clear incentive for those who wants things changed vis a vis US jurisdiction to go through the process fast, and for those preferring the status quo to keep the text short and as far as possible making an exact replica of present ICANN at the international level. Once we agree on these principles, things can move really fast. In the interim, of course the status quo of US jurisdiction remains, and so there is no loss.

what would that cost,

what kind of costs?

and what is the justification?

This brings us to the square one of this discussion, while I thought you/ we were moving forward. The simplest statement of the justification is: a global Internet cannot be run by US law [no legislation (or adjudication) without representation]. For implications of this justification, you may try to answer the questions that I just asked Nigel (and had earlier also asked you).

parminder

Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell

Twitter: @VlawDC

"Luck is the residue of design." -- Branch Rickey *From:* <javascript:_e(%7B%7D,'cvml','wolfgang.kleinwaechter@medienkomm.uni-halle.de');> wolfgang.kleinwaechter@medienkomm.uni-halle.de <javascript:_e(%7B%7D,'cvml','wolfgang.kleinwaechter@medienkomm.uni-halle.de');> *Sent:*June 26, 2016 12:27 PM *To:* <javascript:_e(%7B%7D,'cvml','parminder@itforchange.net');> parminder@itforchange.net <javascript:_e(%7B%7D,'cvml','parminder@itforchange.net');>; <javascript:_e(%7B%7D,'cvml','asoto@ibero-americano.org');> asoto@ibero-americano.org <javascript:_e(%7B%7D,'cvml','asoto@ibero-americano.org');>; paul.rosenzweig@redbranchconsulting.com <javascript:_e(%7B%7D,'cvml','paul.rosenzweig@redbranchconsulting.com');>; accountability-cross-community@icann.org <javascript:_e(%7B%7D,'cvml','accountability-cross-community@icann.org');> *Subject:*Re: [CCWG-ACCT] premature jurisdiction debates

P: There is something called international law..... Like we are an international community working on an international issue, there is also international law.

W: I am always perplexed that we have the same discussion again and again. The subject of international law is the state, represented by its government. Governments negotiate treaties. The primary source of international law is the Charter of the United Nations. The seven principles there - including sovereign equality of states - are seen as jus cogens. The rules for treaties are laid down in the the Vienna Convention on the Law of Treaties. Governments can delegate some rights - via an international treaty - to an intergovernmental organisation, as UNESCO, ITU and others.Such organizations become a subject sui generis under international law and can negotiate treaties with their host countries. Governments can also create international courts - as the International court of justice in The Hague or the Rome Statute. But in case of a conflict, the conflicting parties are governments, not private legal or natural persons.

This is rather different from what we have with ICANN. ICANN is a non-for profit private corporations which operates n the public interest. In its Articles of Incorporation ICANN makes clear that in operates within the framework of international law. That means ICANN respect the national sovereignty of states, does not interfere into internal affairs of other countries etc. But ICANN is not a subject under international law. Governments participate in ICANN in an advisory role. The role is specified in the bylaws.

If Parminder proposes an intergovernmental organizations for the governance of the Internet (or an intergovernmental framework convention for the domain name system) he should say so. Theoretically this is an option. Governments are free to negotiate anything as long as they find negotiation partners. It took 25 years to negotiate the 3rd Law of th Sea Convention. It took more than 20 years to negotiate the Rome Treaty. An the negotiations for a treaty on climate change started in the early 1990s. At this stage I do not see any intention of governments to enter into a new intergovernmental codification conference to negotiate an Internet treaty.

BTW, individuals can start a case against private corporations if those corporations violate their rights they have in the country where they live. The case Schrems vs. Facebook is a good example. Facebook is incorporated in the US but does business in Europe. The European Court of Justice decided that Facebook has to respect the rights of privacy of Mr. Schrems, a citizen of Austria.

Hope this helps to end this useless debate.

Wolfgang _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <javascript:_e(%7B%7D,'cvml','Accountability-Cross-Community@icann.org');> https://mm.icann.org/mailman/listinfo/accountability-cross-community

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-- Jordan Carter Wellington, New Zealand

+64 21 442 649 jordan@jordancarter.org.nz <javascript:_e(%7B%7D,'cvml','jordan@jordancarter.org.nz');>

_______________________________________________ Accountability-Cross-Community mailing listAccountability-Cross-Community@icann.org <javascript:_e(%7B%7D,'cvml','Accountability-Cross-Community@icann.org');>https://mm.icann.org/mailman/listinfo/accountability-cross-community

-- Jordan Carter Wellington, New Zealand +64 21 442 649 jordan@jordancarter.org.nz

Hi, On Sun, Jun 26, 2016 at 06:08:41PM +0530, parminder wrote:

You construct law as something fully technical when it actually is basically political

This claim is a false dichotomy, and is therefore a fallacious premise in the argument. Anything that follows from it therefore fails on the basis of this faulty premise. I do think there's something that is basically political here, however, and that is the emphasis on jurisdiction over attention to the detail of how the accountability system that's already been delivered will work in practice. That would be considerably more useful, in my opinion. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com

The following are my inferences from today's lightening talks on jurisdiction: 1) There will clearly be a concerted effort to incorporate a principle stating that "WS2 can not undo WS1". Since WS1 is embedded in California Law, any discussion on jurisdiction of incorporation in WS2 will effectively be foreclosed. Unfortunately, this ignores the fact that when the bucket list for WS1 and WS2 was created, it was never implied that WS2 is less important than WS1, or that in case of conflict between WS1 and WS2, the decisions of WS1 would prevail. The only distinction at that time was that WS1 will help achieve WS2 after the transition. I believe any change in that would violate to the conditions put forth at that juncture. 2) Jurisdiction will be recognised as a multi-layered issue not just limited to place of incorporation. The following layers will be discussed: Layer 1: Jurisdiction of incorporation & operations, including - tax system, human resources, etc. Layer 2: Jurisdiction of physical presence Layer 3: Jurisdiction about contractual relationships: governing law for contracts with registrars and registries and ability to sue and be sued Layer 4: Jurisdiction to sue and be sued for action & inaction of Staff, and for redress and review of Board Decisions, IRP, and other Accountability and Transparency issues, including AoC Layer 5: relation with the national jurisdictions for particular domestic issues (ccTLD´s managers, protected names either for International Institutions or Country and other geographic names, national security, etc.), privacy, freedom of expression Interference by non-US state actors will also be included in the discussion with respect to Layers 3 to 5. The chairs were categorical in their understanding that Layer 1 on jurisdiction of incorporation has already been decided in WS1 and any change in it will upset WS1. Thus, in the upcoming discussions, all layers will be discussed except for Layer 1 which is the jurisdiction of incorporation. This is ironical because the entire political context for the IANA transition is based on Layer 1 of jurisdiction. On Sun, Jun 26, 2016 at 3:46 PM, parminder <parminder@itforchange.net> wrote:

On Sunday 26 June 2016 03:27 PM, Phil Corwin wrote:

There is no international corporate law. Therefore there is no means by which ICANN can be organized as a non-profit entity under international law but for a treaty arrangement such as that for the Red Cross.

Yes, it will be incorporated under special international law created for that purpose.

How long would that take,

First we have to just decide to do it (that is all to be done at this stage - which can be done within weeks or a few months of discussion), then let it take the needed time as long as everyone is working in good faith... It can even be done in 6-12 months, a simple basic text that incorporates existing ICANN functions and processes. There is a clear incentive for those who wants things changed vis a vis US jurisdiction to go through the process fast, and for those preferring the status quo to keep the text short and as far as possible making an exact replica of present ICANN at the international level. Once we agree on these principles, things can move really fast. In the interim, of course the status quo of US jurisdiction remains, and so there is no loss.

what would that cost,

what kind of costs?

and what is the justification?

This brings us to the square one of this discussion, while I thought you/ we were moving forward. The simplest statement of the justification is: a global Internet cannot be run by US law [no legislation (or adjudication) without representation]. For implications of this justification, you may try to answer the questions that I just asked Nigel (and had earlier also asked you).

parminder

Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell

Twitter: @VlawDC

"Luck is the residue of design." -- Branch Rickey *From:*wolfgang.kleinwaechter@medienkomm.uni-halle.de *Sent:*June 26, 2016 12:27 PM *To:*parminder@itforchange.net; asoto@ibero-americano.org; paul.rosenzweig@redbranchconsulting.com; accountability-cross-community@icann.org *Subject:*Re: [CCWG-ACCT] premature jurisdiction debates

P: There is something called international law..... Like we are an international community working on an international issue, there is also international law.

W: I am always perplexed that we have the same discussion again and again. The subject of international law is the state, represented by its government. Governments negotiate treaties. The primary source of international law is the Charter of the United Nations. The seven principles there - including sovereign equality of states - are seen as jus cogens. The rules for treaties are laid down in the the Vienna Convention on the Law of Treaties. Governments can delegate some rights - via an international treaty - to an intergovernmental organisation, as UNESCO, ITU and others.Such organizations become a subject sui generis under international law and can negotiate treaties with their host countries. Governments can also create international courts - as the International court of justice in The Hague or the Rome Statute. But in case of a conflict, the conflicting parties are governments, not private legal or natural persons.

This is rather different from what we have with ICANN. ICANN is a non-for profit private corporations which operates n the public interest. In its Articles of Incorporation ICANN makes clear that in operates within the framework of international law. That means ICANN respect the national sovereignty of states, does not interfere into internal affairs of other countries etc. But ICANN is not a subject under international law. Governments participate in ICANN in an advisory role. The role is specified in the bylaws.

If Parminder proposes an intergovernmental organizations for the governance of the Internet (or an intergovernmental framework convention for the domain name system) he should say so. Theoretically this is an option. Governments are free to negotiate anything as long as they find negotiation partners. It took 25 years to negotiate the 3rd Law of th Sea Convention. It took more than 20 years to negotiate the Rome Treaty. An the negotiations for a treaty on climate change started in the early 1990s. At this stage I do not see any intention of governments to enter into a new intergovernmental codification conference to negotiate an Internet treaty.

BTW, individuals can start a case against private corporations if those corporations violate their rights they have in the country where they live. The case Schrems vs. Facebook is a good example. Facebook is incorporated in the US but does business in Europe. The European Court of Justice decided that Facebook has to respect the rights of privacy of Mr. Schrems, a citizen of Austria.

Hope this helps to end this useless debate.

Wolfgang _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

I agree with your approach Pedro. I found the approach you presented today during the lightening talks to be most appropriate especially in comparison to the narrow construction of the debate proposed by the chairs in their reflections after Phil's talk. On Sun, Jun 26, 2016 at 6:11 PM, Pedro Ivo Ferraz da Silva < pedro.ivo@itamaraty.gov.br> wrote:

Dear Guru,

My suggestion is that we tackle the issue of jurisdiction from a perspective slightly different than the one you presented below.

Since in our report we have clearly indicated that our main broad concern is about the "Influence that ICANN’s existing jurisdiction may have on the actual operation of policies and accountability mechanisms", we should examine all the scenarios through which ICANN's operations may be affected by the jurisdiction(s) it is subject to (e.g. government sanctions, labour law, governing law for contracts, etc) and evaluate to what extent those "obligations" may exercise undue interference in ICANN's global policy-based operations.

This initial assessment is key so that we can have a clear idea of (i) all the different facets of jurisdiction and (ii) which of those facets really matter when it comes to enhancing ICANN's responsibility as an entity with a global remit (which involves - to the extent possible - not being subject to unilaterally imposed obligations defined outside the global multistakeholder community).

That being said, I wouldn't assume from the start that any subject is off the table. We just need to bear in mind that we have a new accountability system set up and that we need to check to what extent this "new ICANN" is able to cope with the jurisdiction-related issues to be identified in WS2. Then, we should look for possible alternatives to improve this "new ICANN". In this exercise, it is fundamental not to anticipate any result.

Regards,

Pedro

------------------------------ *De:* accountability-cross-community-bounces@icann.org [ accountability-cross-community-bounces@icann.org] em nome de Guru Acharya [gurcharya@gmail.com] *Enviado:* domingo, 26 de junho de 2016 8:15 *Para:* Accountability Cross Community *Assunto:* Re: [CCWG-ACCT] premature jurisdiction debates

The following are my inferences from today's lightening talks on jurisdiction:

1) There will clearly be a concerted effort to incorporate a principle stating that "WS2 can not undo WS1". Since WS1 is embedded in California Law, any discussion on jurisdiction of incorporation in WS2 will effectively be foreclosed. Unfortunately, this ignores the fact that when the bucket list for WS1 and WS2 was created, it was never implied that WS2 is less important than WS1, or that in case of conflict between WS1 and WS2, the decisions of WS1 would prevail. The only distinction at that time was that WS1 will help achieve WS2 after the transition. I believe any change in that would violate to the conditions put forth at that juncture.

2) Jurisdiction will be recognised as a multi-layered issue not just limited to place of incorporation. The following layers will be discussed:

Layer 1: Jurisdiction of incorporation & operations, including - tax system, human resources, etc. Layer 2: Jurisdiction of physical presence Layer 3: Jurisdiction about contractual relationships: governing law for contracts with registrars and registries and ability to sue and be sued Layer 4: Jurisdiction to sue and be sued for action & inaction of Staff, and for redress and review of Board Decisions, IRP, and other Accountability and Transparency issues, including AoC Layer 5: relation with the national jurisdictions for particular domestic issues (ccTLD´s managers, protected names either for International Institutions or Country and other geographic names, national security, etc.), privacy, freedom of expression

Interference by non-US state actors will also be included in the discussion with respect to Layers 3 to 5.

The chairs were categorical in their understanding that Layer 1 on jurisdiction of incorporation has already been decided in WS1 and any change in it will upset WS1. Thus, in the upcoming discussions, all layers will be discussed except for Layer 1 which is the jurisdiction of incorporation. This is ironical because the entire political context for the IANA transition is based on Layer 1 of jurisdiction.

On Sun, Jun 26, 2016 at 3:46 PM, parminder <parminder@itforchange.net> wrote:

...

On Sunday 26 June 2016 03:27 PM, Phil Corwin wrote:

There is no international corporate law. Therefore there is no means by which ICANN can be organized as a non-profit entity under international law but for a treaty arrangement such as that for the Red Cross.

Yes, it will be incorporated under special international law created for that purpose.

How long would that take,

First we have to just decide to do it (that is all to be done at this stage - which can be done within weeks or a few months of discussion), then let it take the needed time as long as everyone is working in good faith... It can even be done in 6-12 months, a simple basic text that incorporates existing ICANN functions and processes. There is a clear incentive for those who wants things changed vis a vis US jurisdiction to go through the process fast, and for those preferring the status quo to keep the text short and as far as possible making an exact replica of present ICANN at the international level. Once we agree on these principles, things can move really fast. In the interim, of course the status quo of US jurisdiction remains, and so there is no loss.

what would that cost,

what kind of costs?

and what is the justification?

This brings us to the square one of this discussion, while I thought you/ we were moving forward. The simplest statement of the justification is: a global Internet cannot be run by US law [no legislation (or adjudication) without representation]. For implications of this justification, you may try to answer the questions that I just asked Nigel (and had earlier also asked you).

parminder

Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell

Twitter: @VlawDC

"Luck is the residue of design." -- Branch Rickey *From:*wolfgang.kleinwaechter@medienkomm.uni-halle.de *Sent:*June 26, 2016 12:27 PM *To:*parminder@itforchange.net; asoto@ibero-americano.org; paul.rosenzweig@redbranchconsulting.com; accountability-cross-community@icann.org *Subject:*Re: [CCWG-ACCT] premature jurisdiction debates

P: There is something called international law..... Like we are an international community working on an international issue, there is also international law.

W: I am always perplexed that we have the same discussion again and again. The subject of international law is the state, represented by its government. Governments negotiate treaties. The primary source of international law is the Charter of the United Nations. The seven principles there - including sovereign equality of states - are seen as jus cogens. The rules for treaties are laid down in the the Vienna Convention on the Law of Treaties. Governments can delegate some rights - via an international treaty - to an intergovernmental organisation, as UNESCO, ITU and others.Such organizations become a subject sui generis under international law and can negotiate treaties with their host countries. Governments can also create international courts - as the International court of justice in The Hague or the Rome Statute. But in case of a conflict, the conflicting parties are governments, not private legal or natural persons.

This is rather different from what we have with ICANN. ICANN is a non-for profit private corporations which operates n the public interest. In its Articles of Incorporation ICANN makes clear that in operates within the framework of international law. That means ICANN respect the national sovereignty of states, does not interfere into internal affairs of other countries etc. But ICANN is not a subject under international law. Governments participate in ICANN in an advisory role. The role is specified in the bylaws.

If Parminder proposes an intergovernmental organizations for the governance of the Internet (or an intergovernmental framework convention for the domain name system) he should say so. Theoretically this is an option. Governments are free to negotiate anything as long as they find negotiation partners. It took 25 years to negotiate the 3rd Law of th Sea Convention. It took more than 20 years to negotiate the Rome Treaty. An the negotiations for a treaty on climate change started in the early 1990s. At this stage I do not see any intention of governments to enter into a new intergovernmental codification conference to negotiate an Internet treaty.

BTW, individuals can start a case against private corporations if those corporations violate their rights they have in the country where they live. The case Schrems vs. Facebook is a good example. Facebook is incorporated in the US but does business in Europe. The European Court of Justice decided that Facebook has to respect the rights of privacy of Mr. Schrems, a citizen of Austria.

Hope this helps to end this useless debate.

Wolfgang _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Hi Paul, In order to classify as an alternative, my understanding (as I mentioned during the Q&A session after my lightning talk) is that any solution needs to solve the problems identified in the current set up. Otherwise it isn't an alternative. And please note that I am not necessarily talking about problems related to the jurisdiction of ICANN's place of incorporation, but problems related to all different aspects of jurisdiction (what those are, it is up to the subgroup, and later the CCWG, to discuss). Regards, Pedro ________________________________ De: Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com] Enviado: segunda-feira, 27 de junho de 2016 10:13 Para: Pedro Ivo Ferraz da Silva; 'Guru Acharya'; 'Accountability Cross Community' Assunto: RE: [CCWG-ACCT] RES: premature jurisdiction debates I would respectfully disagree Pedro – the question is not about ICANN’s existing jurisdiction alone. It must be about any alternative as well – and that alternative needs to be a concrete proposed one (e.g. move ICANN to Turkey, or Egypt) and not about some theoretical construct that has no basis in realistic appraisals. If you want to have more than one alternative I’m fine with that – but you can’t just ask the question of “what are the problems we might encounter where we are” without also asking “and will that change if we change?” Cheers Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Pedro Ivo Ferraz da Silva Sent: Sunday, June 26, 2016 8:42 AM To: Guru Acharya <gurcharya@gmail.com>; Accountability Cross Community <accountability-cross-community@icann.org> Subject: [CCWG-ACCT] RES: premature jurisdiction debates Dear Guru, My suggestion is that we tackle the issue of jurisdiction from a perspective slightly different than the one you presented below. Since in our report we have clearly indicated that our main broad concern is about the "Influence that ICANN’s existing jurisdiction may have on the actual operation of policies and accountability mechanisms", we should examine all the scenarios through which ICANN's operations may be affected by the jurisdiction(s) it is subject to (e.g. government sanctions, labour law, governing law for contracts, etc) and evaluate to what extent those "obligations" may exercise undue interference in ICANN's global policy-based operations. This initial assessment is key so that we can have a clear idea of (i) all the different facets of jurisdiction and (ii) which of those facets really matter when it comes to enhancing ICANN's responsibility as an entity with a global remit (which involves - to the extent possible - not being subject to unilaterally imposed obligations defined outside the global multistakeholder community). That being said, I wouldn't assume from the start that any subject is off the table. We just need to bear in mind that we have a new accountability system set up and that we need to check to what extent this "new ICANN" is able to cope with the jurisdiction-related issues to be identified in WS2. Then, we should look for possible alternatives to improve this "new ICANN". In this exercise, it is fundamental not to anticipate any result. Regards, Pedro ________________________________ De: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org] em nome de Guru Acharya [gurcharya@gmail.com] Enviado: domingo, 26 de junho de 2016 8:15 Para: Accountability Cross Community Assunto: Re: [CCWG-ACCT] premature jurisdiction debates The following are my inferences from today's lightening talks on jurisdiction: 1) There will clearly be a concerted effort to incorporate a principle stating that "WS2 can not undo WS1". Since WS1 is embedded in California Law, any discussion on jurisdiction of incorporation in WS2 will effectively be foreclosed. Unfortunately, this ignores the fact that when the bucket list for WS1 and WS2 was created, it was never implied that WS2 is less important than WS1, or that in case of conflict between WS1 and WS2, the decisions of WS1 would prevail. The only distinction at that time was that WS1 will help achieve WS2 after the transition. I believe any change in that would violate to the conditions put forth at that juncture. 2) Jurisdiction will be recognised as a multi-layered issue not just limited to place of incorporation. The following layers will be discussed: Layer 1: Jurisdiction of incorporation & operations, including - tax system, human resources, etc. Layer 2: Jurisdiction of physical presence Layer 3: Jurisdiction about contractual relationships: governing law for contracts with registrars and registries and ability to sue and be sued Layer 4: Jurisdiction to sue and be sued for action & inaction of Staff, and for redress and review of Board Decisions, IRP, and other Accountability and Transparency issues, including AoC Layer 5: relation with the national jurisdictions for particular domestic issues (ccTLD´s managers, protected names either for International Institutions or Country and other geographic names, national security, etc.), privacy, freedom of expression Interference by non-US state actors will also be included in the discussion with respect to Layers 3 to 5. The chairs were categorical in their understanding that Layer 1 on jurisdiction of incorporation has already been decided in WS1 and any change in it will upset WS1. Thus, in the upcoming discussions, all layers will be discussed except for Layer 1 which is the jurisdiction of incorporation. This is ironical because the entire political context for the IANA transition is based on Layer 1 of jurisdiction. On Sun, Jun 26, 2016 at 3:46 PM, parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>> wrote: On Sunday 26 June 2016 03:27 PM, Phil Corwin wrote: There is no international corporate law. Therefore there is no means by which ICANN can be organized as a non-profit entity under international law but for a treaty arrangement such as that for the Red Cross. Yes, it will be incorporated under special international law created for that purpose. How long would that take, First we have to just decide to do it (that is all to be done at this stage - which can be done within weeks or a few months of discussion), then let it take the needed time as long as everyone is working in good faith... It can even be done in 6-12 months, a simple basic text that incorporates existing ICANN functions and processes. There is a clear incentive for those who wants things changed vis a vis US jurisdiction to go through the process fast, and for those preferring the status quo to keep the text short and as far as possible making an exact replica of present ICANN at the international level. Once we agree on these principles, things can move really fast. In the interim, of course the status quo of US jurisdiction remains, and so there is no loss. what would that cost, what kind of costs? and what is the justification? This brings us to the square one of this discussion, while I thought you/ we were moving forward. The simplest statement of the justification is: a global Internet cannot be run by US law [no legislation (or adjudication) without representation]. For implications of this justification, you may try to answer the questions that I just asked Nigel (and had earlier also asked you). parminder Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design." -- Branch Rickey From:wolfgang.kleinwaechter@medienkomm.uni-halle.de<mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> Sent:June 26, 2016 12:27 PM To:parminder@itforchange.net<mailto:parminder@itforchange.net>; asoto@ibero-americano.org<mailto:asoto@ibero-americano.org>; paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject:Re: [CCWG-ACCT] premature jurisdiction debates P: There is something called international law..... Like we are an international community working on an international issue, there is also international law. W: I am always perplexed that we have the same discussion again and again. The subject of international law is the state, represented by its government. Governments negotiate treaties. The primary source of international law is the Charter of the United Nations. The seven principles there - including sovereign equality of states - are seen as jus cogens. The rules for treaties are laid down in the the Vienna Convention on the Law of Treaties. Governments can delegate some rights - via an international treaty - to an intergovernmental organisation, as UNESCO, ITU and others.Such organizations become a subject sui generis under international law and can negotiate treaties with their host countries. Governments can also create international courts - as the International court of justice in The Hague or the Rome Statute. But in case of a conflict, the conflicting parties are governments, not private legal or natural persons. This is rather different from what we have with ICANN. ICANN is a non-for profit private corporations which operates n the public interest. In its Articles of Incorporation ICANN makes clear that in operates within the framework of international law. That means ICANN respect the national sovereignty of states, does not interfere into internal affairs of other countries etc. But ICANN is not a subject under international law. Governments participate in ICANN in an advisory role. The role is specified in the bylaws. If Parminder proposes an intergovernmental organizations for the governance of the Internet (or an intergovernmental framework convention for the domain name system) he should say so. Theoretically this is an option. Governments are free to negotiate anything as long as they find negotiation partners. It took 25 years to negotiate the 3rd Law of th Sea Convention. It took more than 20 years to negotiate the Rome Treaty. An the negotiations for a treaty on climate change started in the early 1990s. At this stage I do not see any intention of governments to enter into a new intergovernmental codification conference to negotiate an Internet treaty. BTW, individuals can start a case against private corporations if those corporations violate their rights they have in the country where they live. The case Schrems vs. Facebook is a good example. Facebook is incorporated in the US but does business in Europe. The European Court of Justice decided that Facebook has to respect the rights of privacy of Mr. Schrems, a citizen of Austria. Hope this helps to end this useless debate. Wolfgang _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

Paul, I think we can agree that considering a solution as a feasible alternative includes making sure that it doesn't bring in additional and greater problems than the current one. Pedro ________________________________ De: Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com] Enviado: segunda-feira, 27 de junho de 2016 10:44 Para: Pedro Ivo Ferraz da Silva; 'Guru Acharya'; 'Accountability Cross Community' Assunto: RE: [CCWG-ACCT] RES: premature jurisdiction debates I’m sorry I wasn’t at the talk Pedro so we could have chatted – but I disagree with the premise. At least in part because the alternate jurisdiction (on whatever scale you want to measure it) might “solve” whatever problems you identify but also bring with it other problems of greater, lesser, or different degrees. It is in my view completely unworkable to say, hypothetically, “the labor laws of the US are a problem that can be solved by moving to XXX” without also saying at the same time that “moving to XXX will, however, bring with it significant banking restrictions” …. (again just an example). By attempting to identify “problems” in the first instance through a single lens you are, in my view, trying to put your thumb on the scale. I can find problems everywhere I look – the only real question is the balance of the trade offs and you can’t answer that by ignore the trade offs. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: Pedro Ivo Ferraz da Silva [mailto:pedro.ivo@itamaraty.gov.br] Sent: Monday, June 27, 2016 9:34 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; 'Guru Acharya' <gurcharya@gmail.com>; 'Accountability Cross Community' <accountability-cross-community@icann.org> Subject: RES: [CCWG-ACCT] RES: premature jurisdiction debates Hi Paul, In order to classify as an alternative, my understanding (as I mentioned during the Q&A session after my lightning talk) is that any solution needs to solve the problems identified in the current set up. Otherwise it isn't an alternative. And please note that I am not necessarily talking about problems related to the jurisdiction of ICANN's place of incorporation, but problems related to all different aspects of jurisdiction (what those are, it is up to the subgroup, and later the CCWG, to discuss). Regards, Pedro ________________________________ De: Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com] Enviado: segunda-feira, 27 de junho de 2016 10:13 Para: Pedro Ivo Ferraz da Silva; 'Guru Acharya'; 'Accountability Cross Community' Assunto: RE: [CCWG-ACCT] RES: premature jurisdiction debates I would respectfully disagree Pedro – the question is not about ICANN’s existing jurisdiction alone. It must be about any alternative as well – and that alternative needs to be a concrete proposed one (e.g. move ICANN to Turkey, or Egypt) and not about some theoretical construct that has no basis in realistic appraisals. If you want to have more than one alternative I’m fine with that – but you can’t just ask the question of “what are the problems we might encounter where we are” without also asking “and will that change if we change?” Cheers Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Pedro Ivo Ferraz da Silva Sent: Sunday, June 26, 2016 8:42 AM To: Guru Acharya <gurcharya@gmail.com<mailto:gurcharya@gmail.com>>; Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] RES: premature jurisdiction debates Dear Guru, My suggestion is that we tackle the issue of jurisdiction from a perspective slightly different than the one you presented below. Since in our report we have clearly indicated that our main broad concern is about the "Influence that ICANN’s existing jurisdiction may have on the actual operation of policies and accountability mechanisms", we should examine all the scenarios through which ICANN's operations may be affected by the jurisdiction(s) it is subject to (e.g. government sanctions, labour law, governing law for contracts, etc) and evaluate to what extent those "obligations" may exercise undue interference in ICANN's global policy-based operations. This initial assessment is key so that we can have a clear idea of (i) all the different facets of jurisdiction and (ii) which of those facets really matter when it comes to enhancing ICANN's responsibility as an entity with a global remit (which involves - to the extent possible - not being subject to unilaterally imposed obligations defined outside the global multistakeholder community). That being said, I wouldn't assume from the start that any subject is off the table. We just need to bear in mind that we have a new accountability system set up and that we need to check to what extent this "new ICANN" is able to cope with the jurisdiction-related issues to be identified in WS2. Then, we should look for possible alternatives to improve this "new ICANN". In this exercise, it is fundamental not to anticipate any result. Regards, Pedro ________________________________ De: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org] em nome de Guru Acharya [gurcharya@gmail.com] Enviado: domingo, 26 de junho de 2016 8:15 Para: Accountability Cross Community Assunto: Re: [CCWG-ACCT] premature jurisdiction debates The following are my inferences from today's lightening talks on jurisdiction: 1) There will clearly be a concerted effort to incorporate a principle stating that "WS2 can not undo WS1". Since WS1 is embedded in California Law, any discussion on jurisdiction of incorporation in WS2 will effectively be foreclosed. Unfortunately, this ignores the fact that when the bucket list for WS1 and WS2 was created, it was never implied that WS2 is less important than WS1, or that in case of conflict between WS1 and WS2, the decisions of WS1 would prevail. The only distinction at that time was that WS1 will help achieve WS2 after the transition. I believe any change in that would violate to the conditions put forth at that juncture. 2) Jurisdiction will be recognised as a multi-layered issue not just limited to place of incorporation. The following layers will be discussed: Layer 1: Jurisdiction of incorporation & operations, including - tax system, human resources, etc. Layer 2: Jurisdiction of physical presence Layer 3: Jurisdiction about contractual relationships: governing law for contracts with registrars and registries and ability to sue and be sued Layer 4: Jurisdiction to sue and be sued for action & inaction of Staff, and for redress and review of Board Decisions, IRP, and other Accountability and Transparency issues, including AoC Layer 5: relation with the national jurisdictions for particular domestic issues (ccTLD´s managers, protected names either for International Institutions or Country and other geographic names, national security, etc.), privacy, freedom of expression Interference by non-US state actors will also be included in the discussion with respect to Layers 3 to 5. The chairs were categorical in their understanding that Layer 1 on jurisdiction of incorporation has already been decided in WS1 and any change in it will upset WS1. Thus, in the upcoming discussions, all layers will be discussed except for Layer 1 which is the jurisdiction of incorporation. This is ironical because the entire political context for the IANA transition is based on Layer 1 of jurisdiction. On Sun, Jun 26, 2016 at 3:46 PM, parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>> wrote: On Sunday 26 June 2016 03:27 PM, Phil Corwin wrote: There is no international corporate law. Therefore there is no means by which ICANN can be organized as a non-profit entity under international law but for a treaty arrangement such as that for the Red Cross. Yes, it will be incorporated under special international law created for that purpose. How long would that take, First we have to just decide to do it (that is all to be done at this stage - which can be done within weeks or a few months of discussion), then let it take the needed time as long as everyone is working in good faith... It can even be done in 6-12 months, a simple basic text that incorporates existing ICANN functions and processes. There is a clear incentive for those who wants things changed vis a vis US jurisdiction to go through the process fast, and for those preferring the status quo to keep the text short and as far as possible making an exact replica of present ICANN at the international level. Once we agree on these principles, things can move really fast. In the interim, of course the status quo of US jurisdiction remains, and so there is no loss. what would that cost, what kind of costs? and what is the justification? This brings us to the square one of this discussion, while I thought you/ we were moving forward. The simplest statement of the justification is: a global Internet cannot be run by US law [no legislation (or adjudication) without representation]. For implications of this justification, you may try to answer the questions that I just asked Nigel (and had earlier also asked you). parminder Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design." -- Branch Rickey From:wolfgang.kleinwaechter@medienkomm.uni-halle.de<mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> Sent:June 26, 2016 12:27 PM To:parminder@itforchange.net<mailto:parminder@itforchange.net>; asoto@ibero-americano.org<mailto:asoto@ibero-americano.org>; paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject:Re: [CCWG-ACCT] premature jurisdiction debates P: There is something called international law..... Like we are an international community working on an international issue, there is also international law. W: I am always perplexed that we have the same discussion again and again. The subject of international law is the state, represented by its government. Governments negotiate treaties. The primary source of international law is the Charter of the United Nations. The seven principles there - including sovereign equality of states - are seen as jus cogens. The rules for treaties are laid down in the the Vienna Convention on the Law of Treaties. Governments can delegate some rights - via an international treaty - to an intergovernmental organisation, as UNESCO, ITU and others.Such organizations become a subject sui generis under international law and can negotiate treaties with their host countries. Governments can also create international courts - as the International court of justice in The Hague or the Rome Statute. But in case of a conflict, the conflicting parties are governments, not private legal or natural persons. This is rather different from what we have with ICANN. ICANN is a non-for profit private corporations which operates n the public interest. In its Articles of Incorporation ICANN makes clear that in operates within the framework of international law. That means ICANN respect the national sovereignty of states, does not interfere into internal affairs of other countries etc. But ICANN is not a subject under international law. Governments participate in ICANN in an advisory role. The role is specified in the bylaws. If Parminder proposes an intergovernmental organizations for the governance of the Internet (or an intergovernmental framework convention for the domain name system) he should say so. Theoretically this is an option. Governments are free to negotiate anything as long as they find negotiation partners. It took 25 years to negotiate the 3rd Law of th Sea Convention. It took more than 20 years to negotiate the Rome Treaty. An the negotiations for a treaty on climate change started in the early 1990s. At this stage I do not see any intention of governments to enter into a new intergovernmental codification conference to negotiate an Internet treaty. BTW, individuals can start a case against private corporations if those corporations violate their rights they have in the country where they live. The case Schrems vs. Facebook is a good example. Facebook is incorporated in the US but does business in Europe. The European Court of Justice decided that Facebook has to respect the rights of privacy of Mr. Schrems, a citizen of Austria. Hope this helps to end this useless debate. Wolfgang _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

On Monday 27 June 2016 06:43 PM, Paul Rosenzweig wrote:

I would respectfully disagree Pedro – the question is not about ICANN’s existing jurisdiction alone. It must be about any alternative as well – and that alternative needs to be a concrete proposed one (e.g. move ICANN to Turkey, or Egypt) and not about some theoretical construct that has no basis in realistic appraisals. If you want to have more than one alternative I’m fine with that – but you can’t just ask the question of “what are the problems we might encounter where we are” without also asking “and will that change if we change?”

I agree with you Paul. Full implications of both 'where we are' and 'what is proposed' should be considered at the same time. But still making a start with fully understanding and accepting the implications of 'where we are' remains important. Let there be no denial of those implications. Once we accept them, it is ok to say, yes this may be a problem, but show me a better solution. If we cannot refuse to bring out the implications of 'what may be proposed', much less can we refuse to accept all implications of 'where we are'. The problem is that there is a huge amount of denial wrt the issues with the current arrangement. I posed those two questions that I did a few times now, and there are others. I am happy to hear your professional lawyerly view on it, and also of our appointment legal advisor - bringing out the full implications of the scenarios that have been posted. Why cant we do that? Fine if one can show that the situations posed in my questions can be dealt with without any actual 'interference' of US jurisdiction in ICANN's global policy functions. I am even fine if people say, well, if the courts so decide, ICANN will indeed have to change its policy decisions (or if US customs insist on seizing a gTLD like 'rojadirecta, from my example, ICANN will indeed have to comply) but then this situation is no worse than what would obtain in any other proposed solution. Or, even if a proposed solution solves this specific problem, it brings this and this bigger problems, and the trade off is negative. That would be being fair to both sides. And a proper consideration of an issue that we are now mandated to consider. parminder

Cheers

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>

O: +1 (202) 547-0660

M: +1 (202) 329-9650

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www.redbranchconsulting.com <http://www.redbranchconsulting.com/>

My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ __

*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Pedro Ivo Ferraz da Silva *Sent:* Sunday, June 26, 2016 8:42 AM *To:* Guru Acharya <gurcharya@gmail.com>; Accountability Cross Community <accountability-cross-community@icann.org> *Subject:* [CCWG-ACCT] RES: premature jurisdiction debates

Dear Guru,

My suggestion is that we tackle the issue of jurisdiction from a perspective slightly different than the one you presented below.

Since in our report we have clearly indicated that our main broad concern is about the "Influence that ICANN’s existing jurisdiction may have on the actual operation of policies and accountability mechanisms", we should examine all the scenarios through which ICANN's operations may be affected by the jurisdiction(s) it is subject to (e.g. government sanctions, labour law, governing law for contracts, etc) and evaluate to what extent those "obligations" may exercise undue interference in ICANN's global policy-based operations.

This initial assessment is key so that we can have a clear idea of (i) all the different facets of jurisdiction and (ii) which of those facets really matter when it comes to enhancing ICANN's responsibility as an entity with a global remit (which involves - to the extent possible - not being subject to unilaterally imposed obligations defined outside the global multistakeholder community).

That being said, I wouldn't assume from the start that any subject is off the table. We just need to bear in mind that we have a new accountability system set up and that we need to check to what extent this "new ICANN" is able to cope with the jurisdiction-related issues to be identified in WS2. Then, we should look for possible alternatives to improve this "new ICANN".

In this exercise, it is fundamental not to anticipate any result.

Regards,

Pedro

------------------------------------------------------------------------

*De:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [accountability-cross-community-bounces@icann.org] em nome de Guru Acharya [gurcharya@gmail.com] *Enviado:* domingo, 26 de junho de 2016 8:15 *Para:* Accountability Cross Community *Assunto:* Re: [CCWG-ACCT] premature jurisdiction debates

The following are my inferences from today's lightening talks on jurisdiction:

1) There will clearly be a concerted effort to incorporate a principle stating that "WS2 can not undo WS1". Since WS1 is embedded in California Law, any discussion on jurisdiction of incorporation in WS2 will effectively be foreclosed. Unfortunately, this ignores the fact that when the bucket list for WS1 and WS2 was created, it was never implied that WS2 is less important than WS1, or that in case of conflict between WS1 and WS2, the decisions of WS1 would prevail. The only distinction at that time was that WS1 will help achieve WS2 after the transition. I believe any change in that would violate to the conditions put forth at that juncture.

2) Jurisdiction will be recognised as a multi-layered issue not just limited to place of incorporation. The following layers will be discussed:

Layer 1: Jurisdiction of incorporation & operations, including - tax system, human resources, etc.

Layer 2: Jurisdiction of physical presence

Layer 3: Jurisdiction about contractual relationships: governing law for contracts with registrars and registries and ability to sue and be sued

Layer 4: Jurisdiction to sue and be sued for action & inaction of Staff, and for redress and review of Board Decisions, IRP, and other Accountability and Transparency issues, including AoC

Layer 5: relation with the national jurisdictions for particular domestic issues (ccTLD´s managers, protected names either for International Institutions or Country and other geographic names, national security, etc.), privacy, freedom of expression

Interference by non-US state actors will also be included in the discussion with respect to Layers 3 to 5.

The chairs were categorical in their understanding that Layer 1 on jurisdiction of incorporation has already been decided in WS1 and any change in it will upset WS1. Thus, in the upcoming discussions, all layers will be discussed except for Layer 1 which is the jurisdiction of incorporation. This is ironical because the entire political context for the IANA transition is based on Layer 1 of jurisdiction.

On Sun, Jun 26, 2016 at 3:46 PM, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:

On Sunday 26 June 2016 03:27 PM, Phil Corwin wrote:

There is no international corporate law. Therefore there is no means by which ICANN can be organized as a non-profit entity under international law but for a treaty arrangement such as that for the Red Cross.

Yes, it will be incorporated under special international law created for that purpose.

How long would that take,

First we have to just decide to do it (that is all to be done at this stage - which can be done within weeks or a few months of discussion), then let it take the needed time as long as everyone is working in good faith... It can even be done in 6-12 months, a simple basic text that incorporates existing ICANN functions and processes. There is a clear incentive for those who wants things changed vis a vis US jurisdiction to go through the process fast, and for those preferring the status quo to keep the text short and as far as possible making an exact replica of present ICANN at the international level. Once we agree on these principles, things can move really fast. In the interim, of course the status quo of US jurisdiction remains, and so there is no loss.

what would that cost,

what kind of costs?

and what is the justification?

This brings us to the square one of this discussion, while I thought you/ we were moving forward. The simplest statement of the justification is: a global Internet cannot be run by US law [no legislation (or adjudication) without representation]. For implications of this justification, you may try to answer the questions that I just asked Nigel (and had earlier also asked you).

parminder

Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell

Twitter: @VlawDC

"Luck is the residue of design." -- Branch Rickey

*From:*wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>

*Sent:*June 26, 2016 12:27 PM

*To:*parminder@itforchange.net <mailto:parminder@itforchange.net>; asoto@ibero-americano.org <mailto:asoto@ibero-americano.org>; paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>

*Subject:*Re: [CCWG-ACCT] premature jurisdiction debates

P: There is something called international law..... Like we are an international community working on an international issue, there is also international law.

W: I am always perplexed that we have the same discussion again and again. The subject of international law is the state, represented by its government. Governments negotiate treaties. The primary source of international law is the Charter of the United Nations. The seven principles there - including sovereign equality of states - are seen as jus cogens. The rules for treaties are laid down in the the Vienna Convention on the Law of Treaties. Governments can delegate some rights - via an international treaty - to an intergovernmental organisation, as UNESCO, ITU and others.Such organizations become a subject sui generis under international law and can negotiate treaties with their host countries. Governments can also create international courts - as the International court of justice in The Hague or the Rome Statute. But in case of a conflict, the conflicting parties are governments, not private legal or natural persons.

This is rather different from what we have with ICANN. ICANN is a non-for profit private corporations which operates n the public interest. In its Articles of Incorporation ICANN makes clear that in operates within the framework of international law. That means ICANN respect the national sovereignty of states, does not interfere into internal affairs of other countries etc. But ICANN is not a subject under international law. Governments participate in ICANN in an advisory role. The role is specified in the bylaws.

If Parminder proposes an intergovernmental organizations for the governance of the Internet (or an intergovernmental framework convention for the domain name system) he should say so. Theoretically this is an option. Governments are free to negotiate anything as long as they find negotiation partners. It took 25 years to negotiate the 3rd Law of th Sea Convention. It took more than 20 years to negotiate the Rome Treaty. An the negotiations for a treaty on climate change started in the early 1990s. At this stage I do not see any intention of governments to enter into a new intergovernmental codification conference to negotiate an Internet treaty.

BTW, individuals can start a case against private corporations if those corporations violate their rights they have in the country where they live. The case Schrems vs. Facebook is a good example. Facebook is incorporated in the US but does business in Europe. The European Court of Justice decided that Facebook has to respect the rights of privacy of Mr. Schrems, a citizen of Austria.

Hope this helps to end this useless debate.

Wolfgang _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

+1 Wolfgang ... +1 indeed. Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ -----Original Message----- From: "Kleinwächter, Wolfgang" [mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de] Sent: Sunday, June 26, 2016 5:24 AM To: parminder <parminder@itforchange.net>; Alberto Soto <asoto@ibero-americano.org>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; accountability-cross-community@icann.org Subject: AW: [CCWG-ACCT] premature jurisdiction debates P: There is something called international law..... Like we are an international community working on an international issue, there is also international law. W: I am always perplexed that we have the same discussion again and again. The subject of international law is the state, represented by its government. Governments negotiate treaties. The primary source of international law is the Charter of the United Nations. The seven principles there - including sovereign equality of states - are seen as jus cogens. The rules for treaties are laid down in the the Vienna Convention on the Law of Treaties. Governments can delegate some rights - via an international treaty - to an intergovernmental organisation, as UNESCO, ITU and others.Such organizations become a subject sui generis under international law and can negotiate treaties with their host countries. Governments can also create international courts - as the International court of justice in The Hague or the Rome Statute. But in case of a conflict, the conflicting parties are governments, not private legal or natural persons. This is rather different from what we have with ICANN. ICANN is a non-for profit private corporations which operates n the public interest. In its Articles of Incorporation ICANN makes clear that in operates within the framework of international law. That means ICANN respect the national sovereignty of states, does not interfere into internal affairs of other countries etc. But ICANN is not a subject under international law. Governments participate in ICANN in an advisory role. The role is specified in the bylaws. If Parminder proposes an intergovernmental organizations for the governance of the Internet (or an intergovernmental framework convention for the domain name system) he should say so. Theoretically this is an option. Governments are free to negotiate anything as long as they find negotiation partners. It took 25 years to negotiate the 3rd Law of th Sea Convention. It took more than 20 years to negotiate the Rome Treaty. An the negotiations for a treaty on climate change started in the early 1990s. At this stage I do not see any intention of governments to enter into a new intergovernmental codification conference to negotiate an Internet treaty. BTW, individuals can start a case against private corporations if those corporations violate their rights they have in the country where they live. The case Schrems vs. Facebook is a good example. Facebook is incorporated in the US but does business in Europe. The European Court of Justice decided that Facebook has to respect the rights of privacy of Mr. Schrems, a citizen of Austria. Hope this helps to end this useless debate. Wolfgang

Good discussion. All points are valid. Thanks to Wolfgang for his explanation. It is a complex issue - The pros and cons have to be weighed up... assessed and then determined what is the best possible jurisdiction. We must look at other similar bodies to ICANN and determine why some countries such as Switzerland, Belgium, USA , etc attract international bodies such as ICANN, IRC , ITU, the UN , etc. regards Karel DOUGLAS On Mon, Jun 27, 2016 at 12:55 PM, Phil Corwin <psc@vlaw-dc.com> wrote:

+1 with enthusiasm

Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell

Twitter: @VlawDC

"Luck is the residue of design." -- Branch Rickey *From:*paul.rosenzweig@redbranchconsulting.com *Sent:*June 27, 2016 4:17 PM *To:*'Kleinwächter; wolfgang.kleinwaechter@medienkomm.uni-halle.de; parminder@itforchange.net; asoto@ibero-americano.org; accountability-cross-community@icann.org *Subject:*Re: [CCWG-ACCT] premature jurisdiction debates

+1 Wolfgang ... +1 indeed.

Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/

-----Original Message----- From: "Kleinwächter, Wolfgang" [mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <wolfgang.kleinwaechter@medienkomm.uni-halle.de>] Sent: Sunday, June 26, 2016 5:24 AM To: parminder <parminder@itforchange.net>; Alberto Soto <asoto@ibero-americano.org>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; accountability-cross-community@icann.org Subject: AW: [CCWG-ACCT] premature jurisdiction debates

P: There is something called international law..... Like we are an international community working on an international issue, there is also international law.

W: I am always perplexed that we have the same discussion again and again. The subject of international law is the state, represented by its government. Governments negotiate treaties. The primary source of international law is the Charter of the United Nations. The seven principles there - including sovereign equality of states - are seen as jus cogens. The rules for treaties are laid down in the the Vienna Convention on the Law of Treaties. Governments can delegate some rights - via an international treaty - to an intergovernmental organisation, as UNESCO, ITU and others.Such organizations become a subject sui generis under international law and can negotiate treaties with their host countries. Governments can also create international courts - as the International court of justice in The Hague or the Rome Statute. But in case of a conflict, the conflicting parties are governments, not private legal or natural persons.

This is rather different from what we have with ICANN. ICANN is a non-for profit private corporations which operates n the public interest. In its Articles of Incorporation ICANN makes clear that in operates within the framework of international law. That means ICANN respect the national sovereignty of states, does not interfere into internal affairs of other countries etc. But ICANN is not a subject under international law. Governments participate in ICANN in an advisory role. The role is specified in the bylaws.

If Parminder proposes an intergovernmental organizations for the governance of the Internet (or an intergovernmental framework convention for the domain name system) he should say so. Theoretically this is an option. Governments are free to negotiate anything as long as they find negotiation partners. It took 25 years to negotiate the 3rd Law of th Sea Convention. It took more than 20 years to negotiate the Rome Treaty. An the negotiations for a treaty on climate change started in the early 1990s. At this stage I do not see any intention of governments to enter into a new intergovernmental codification conference to negotiate an Internet treaty.

BTW, individuals can start a case against private corporations if those corporations violate their rights they have in the country where they live. The case Schrems vs. Facebook is a good example. Facebook is incorporated in the US but does business in Europe. The European Court of Justice decided that Facebook has to respect the rights of privacy of Mr. Schrems, a citizen of Austria.

Hope this helps to end this useless debate.

Wolfgang

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

With all respect, the reason that many of us regard this discussion as nonproductive is that no compelling case has been made for embarking on the path proposed, and no proper recognition has been made by the proponent of the costs and difficulties involved. For example: "There is accordingly no reason why we cannot have international law that protects individual and business rights vis a vis a international body (that ICANN should become under international law). To repeat, there is absolutely no problem with developing an international treaty that writes international law, which will make ICANN an international body, but with exactly the same governance and other processes (multistakeholder) as exist at present, and also provide means to ensure that individuals/ businesses interests and rights vis a vis ICANN are protected through a special court system that is set up by the same treaty. So you are proposing, just for this one ICANN organization and its very limited remit, spending an enormous amount of time and money (for legal expertise, plus the value of the time of all those involved stakeholders) to hammer out a new international treaty to implemented, as well as the development of "international law" that is relevant to all concerns that may arise for disputes within and involving ICANN. Contract law, employment law, competition/antitrust law, etc., ad infinitum. How long will all this take? Years, I would submit. And from what more important issues will the ICANN community be distracted while embarking on this herculean effort? And what would that law be? For example, for competition/antitrust as it relates to domain industry pricing within the framework of ICANN policies and contractual practices, shall it be the US approach, the EU's, some other nation's, or some amalgamation of them? And how long and at what expense shall that effort take? And from what source is the authority of the authors of these "laws" derived; in democratic nations legislators derive their authority by gathering majority support of voters, but ICANN is not a nation-state. And, oh yes, we are also supposed to create "a special court system that is set up by the same treaty" to decide disputes under this new body of law created just for ICANN. How many jurists? What substantive requirements, and evidentiary standards, and procedural rules? What mechanism of appeal and to what body? I would submit that this whole proposed project is quite absurd, especially given the lack of any convincing rationale to so many of us that such a project is even required to address any foreseeable dispute. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell "Luck is the residue of design" -- Branch Rickey ________________________________ From: accountability-cross-community-bounces@icann.org [accountability-cross-community-bounces@icann.org] on behalf of parminder [parminder@itforchange.net] Sent: Wednesday, June 29, 2016 6:21 AM To: Kleinwächter, Wolfgang; Alberto Soto; Paul Rosenzweig; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] premature jurisdiction debates Hi Wolfgang I did not respond to your email earlier because I would not normally respond to an email that begins by calling a discussion unnecessarily repetitive, and ends by describing it as useless. However, since your post has earned so many enthusiastic +1s, I fear it may seem to some as a conclusive, unchallenged, argument against the case that I presented about ICANN's jurisdiction. For that reason I need to respond to it, as below. On Sunday 26 June 2016 02:54 PM, "Kleinwächter, Wolfgang" wrote: P: There is something called international law..... Like we are an international community working on an international issue, there is also international law. W: I am always perplexed that we have the same discussion again and again. The subject of international law is the state, represented by its government. If we are to work on solutions to the problems that we face, we need to look towards directions of innovations where such solutions could lie, not look to where they do not. I have been describing Investor State Dispute Settlement systems being incorporated in most trade treaties - which are inter/pluri-lateral instruments and law. The subject here is the investor being afforded protection from state policies. These are supposed to protect investor's rights, who are legal persons and not states. There is accordingly no reason why we cannot have international law that protects individual and business rights vis a vis a international body (that ICANN should become under international law). To repeat, there is absolutely no problem with developing an international treaty that writes international law, which will make ICANN an international body, but with exactly the same governance and other processes (multistakeholder) as exist at present, and also provide means to ensure that individuals/ businesses interests and rights vis a vis ICANN are protected through a special court system that is set up by the same treaty. (As the EU is proposing a new international court system for Investor State Dispute Settlement). I am ready for a full-fledged discussion on this issue, on how such an international law can indeed be created, or alternatively, why and how it cannot be. Please tell me where you find gaps, and I will respond accordingly. (the system would have space to incorporate international private law, and if required ICANN and registries given choice for national jurisdiction for contract related disputes - preferably it should be the country of incorporation of the registry. However, there would be complete immunity from any enforcement of public laws of the country - US - where it is headquartered - other than the trivial routine stuff which all host country agreements allow.) Governments negotiate treaties. The primary source of international law is the Charter of the United Nations. The seven principles there - including sovereign equality of states - are seen as jus cogens. The rules for treaties are laid down in the the Vienna Convention on the Law of Treaties. Governments can delegate some rights - via an international treaty - to an intergovernmental organisation, as UNESCO, ITU and others.Such organizations become a subject sui generis under international law and can negotiate treaties with their host countries. Governments can also create international courts - as the International court of justice in The Hague or the Rome Statute. But in case of a conflict, the conflicting parties are governments, not private legal or natural persons. As mentioned, in the case of Investor State Disputes Settlement bodies/ courts, one of the conflicting party is a legal person. We need to look at where innovation is happening not at deep history alone. This is rather different from what we have with ICANN. ICANN is a non-for profit private corporations which operates n the public interest. In its Articles of Incorporation ICANN makes clear that in operates within the framework of international law. That means ICANN respect the national sovereignty of states, does not interfere into internal affairs of other countries etc. But ICANN is not a subject under international law. Governments participate in ICANN in an advisory role. The role is specified in the bylaws. ICANN is fully subject to US laws, and executive action. I had posed two scenarios, pl respond to them. Can you say that the scenarios are false, or ICANN will actually refuse to comply with US court or legitimate executive order, or whether it would comply and change its DNS policy/ action accordingly? It has to be one of these options. Which one? Why no one commits on it? If Parminder proposes an intergovernmental organizations for the governance of the Internet (or an intergovernmental framework convention for the domain name system) he should say so. What I propose I have said clearly . No, it is *not* an intergov management of the DNS and other ICANN functions; it is keeping exactly the same function and governance processes (multi-stakeholder) of ICANN as now, but under international law and not US law. Theoretically this is an option. Governments are free to negotiate anything as long as they find negotiation partners. It took 25 years to negotiate the 3rd Law of th Sea Convention. It took more than 20 years to negotiate the Rome Treaty. An the negotiations for a treaty on climate change started in the early 1990s. At this stage I do not see any intention of governments to enter into a new intergovernmental codification conference to negotiate an Internet treaty. These processes were trying to bring into being a new institutional system. In the present case, we already have one, we just want to change its covering/ incorporating law from US to international - without changing the rest of institutional design. Should not take long. And unlike what you say, non US gov do not agree with the current US jurisdiction on ICANN. They did not during WSIS ten years ago, they still do not. BTW, individuals can start a case against private corporations if those corporations violate their rights they have in the country where they live. They can start it, but with no effect whatsoever. ICANN would not even appear as a respondent. Just try it. Facebook case below is different. Unlike ICANN, FB has to maintained big business presence in France, as in every big country, and thus a ruling over it can be enforced. ICANN has no such constrains, and would not subject itself to any such foreign court cases. parminder The case Schrems vs. Facebook is a good example. Facebook is incorporated in the US but does business in Europe. The European Court of Justice decided that Facebook has to respect the rights of privacy of Mr. Schrems, a citizen of Austria. Hope this helps to end this useless debate. Wolfgang

May I please ask that the otiose but expected +1s be taken as read, and omitted? The level of distraction on this list has now reached epic proportions. On 29/06/16 12:46, George Sadowsky wrote:

Phil,

Thank you for this intervention. I agree that this discussion is not productive, and I agree with Wolfgang that that this useless debate should be ended.

George

...

On Jun 29, 2016, at 2:05 PM, Phil Corwin <psc@vlaw-dc.com <mailto:psc@vlaw-dc.com>> wrote:

With all respect, the reason that many of us regard this discussion as nonproductive is that no compelling case has been made for embarking on the path proposed, and no proper recognition has been made by the proponent of the costs and difficulties involved.

For example: "There is accordingly no reason why we cannot have international law that protects individual and business rights vis a vis a international body (that ICANNshould become under international law). To repeat, there is absolutely no problem with developing an international treaty that writes international law, which will make ICANN an international body,but with exactly the same governance and other processes (multistakeholder) as exist at present, and also provide means to ensure that individuals/ businessesinterests and rights vis a vis ICANN are protected through a special court system that is set up by the same treaty.

So you are proposing, just for this one ICANN organization and its very limited remit, spending an enormous amount of time and money (for legal expertise, plus the value of the time of all those involved stakeholders) to hammer out a new international treaty to implemented, as well as the development of "international law" that is relevant to all concerns that may arise for disputes within and involving ICANN. Contract law, employment law, competition/antitrust law, etc., ad infinitum. How long will all this take? Years, I would submit. And from what more important issues will the ICANN community be distracted while embarking on this herculean effort?

And what would that law be? For example, for competition/antitrust as it relates to domain industry pricing within the framework of ICANN policies and contractual practices, shall it be the US approach, the EU's, some other nation's, or some amalgamation of them? And how long and at what expense shall that effort take? And from what source is the authority of the authors of these "laws" derived; in democratic nations legislators derive their authority by gathering majority support of voters, but ICANN is not a nation-state.

And, oh yes, we are also supposed to create "a special court system that is set up by the same treaty" to decide disputes under this new body of law created just for ICANN. How many jurists? What substantive requirements, and evidentiary standards, and procedural rules? What mechanism of appeal and to what body?

I would submit that this whole proposed project is quite absurd, especially given the lack of any convincing rationale to so many of us that such a project is even required to address any foreseeable dispute.

*Philip S. Corwin, Founding Principal*

*Virtualaw LLC*

*1155 F Street, NW*

*Suite 1050*

*Washington, DC 20004*

*202-559-8597/Direct*

*202-559-8750/Fax*

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**

/*"Luck is the residue of design" -- Branch Rickey*/

------------------------------------------------------------------------ *From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>[accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] on behalf of parminder [parminder@itforchange.net <mailto:parminder@itforchange.net>] *Sent:*Wednesday, June 29, 2016 6:21 AM *To:*Kleinwächter, Wolfgang; Alberto Soto; Paul Rosenzweig;accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:*Re: [CCWG-ACCT] premature jurisdiction debates

Hi Wolfgang

I did not respond to your email earlier because I would not normally respond to an email that begins by calling a discussion unnecessarily repetitive, and ends by describing it as useless. However, since your post has earned so many enthusiastic +1s, I fear it may seem to some as a conclusive, unchallenged, argument against the case that I presented about ICANN's jurisdiction. For that reason I need to respond to it, as below.

On Sunday 26 June 2016 02:54 PM, "Kleinwächter, Wolfgang" wrote:

...

P: There is something called international law..... Like we are an international community working on an international issue, there is also international law.

W: I am always perplexed that we have the same discussion again and again. The subject of international law is the state, represented by its government.

If we are to work on solutions to the problems that we face, we need to look towards directions of innovations where such solutions could lie, not look to where they do not. I have been describing Investor State Dispute Settlement systems being incorporated in most trade treaties - which are inter/pluri-lateral instruments and law. The subject here is the investor being afforded protection from state policies. These are supposed to protect investor's rights, who are legal persons and not states. There is accordingly no reason why we cannot have international law that protects individual and business rights vis a vis a international body (that ICANN should become under international law).

To repeat, there is absolutely no problem with developing an international treaty that writes international law, which will make ICANN an international body, but with exactly the same governance and other processes (multistakeholder) as exist at present, and also provide means to ensure that individuals/ businesses interests and rights vis a vis ICANN are protected through a special court system that is set up by the same treaty. (As the EU is proposing a new international court system for Investor State Dispute Settlement).

I am ready for a full-fledged discussion on this issue, on how such an international law can indeed be created, or alternatively, why and how it cannot be.

Please tell me where you find gaps, and I will respond accordingly. (the system would have space to incorporate international private law, and if required ICANN and registries given choice for national jurisdiction for contract related disputes - preferably it should be the country of incorporation of the registry. However, there would be complete immunity from any enforcement of public laws of the country - US - where it is headquartered - other than the trivial routine stuff which all host country agreements allow.)

...

Governments negotiate treaties. The primary source of international law is the Charter of the United Nations. The seven principles there - including sovereign equality of states - are seen as jus cogens. The rules for treaties are laid down in the the Vienna Convention on the Law of Treaties. Governments can delegate some rights - via an international treaty - to an intergovernmental organisation, as UNESCO, ITU and others.Such organizations become a subject sui generis under international law and can negotiate treaties with their host countries. Governments can also create international courts - as the International court of justice in The Hague or the Rome Statute. But in case of a conflict, the conflicting parties are governments, not private legal or natural persons.

As mentioned, in the case of Investor State Disputes Settlement bodies/ courts, one of the conflicting party is a legal person. We need to look at where innovation is happening not at deep history alone.

...

This is rather different from what we have with ICANN. ICANN is a non-for profit private corporations which operates n the public interest. In its Articles of Incorporation ICANN makes clear that in operates within the framework of international law. That means ICANN respect the national sovereignty of states, does not interfere into internal affairs of other countries etc. But ICANN is not a subject under international law. Governments participate in ICANN in an advisory role. The role is specified in the bylaws.

ICANN is fully subject to US laws, and executive action. I had posed two scenarios, pl respond to them. Can you say that the scenarios are false, or ICANN will actually refuse to comply with US court or legitimate executive order, or whether it would comply and change its DNS policy/ action accordingly? It has to be one of these options. Which one? Why no one commits on it?

...

If Parminder proposes an intergovernmental organizations for the governance of the Internet (or an intergovernmental framework convention for the domain name system) he should say so.

What I propose I have said clearly . No, it is *not* an intergov management of the DNS and other ICANN functions; it is keeping exactly the same function and governance processes (multi-stakeholder) of ICANN as now, but under international law and not US law.

...

Theoretically this is an option. Governments are free to negotiate anything as long as they find negotiation partners. It took 25 years to negotiate the 3rd Law of th Sea Convention. It took more than 20 years to negotiate the Rome Treaty. An the negotiations for a treaty on climate change started in the early 1990s. At this stage I do not see any intention of governments to enter into a new intergovernmental codification conference to negotiate an Internet treaty.

These processes were trying to bring into being a new institutional system. In the present case, we already have one, we just want to change its covering/ incorporating law from US to international - without changing the rest of institutional design. Should not take long. And unlike what you say, non US gov do not agree with the current US jurisdiction on ICANN. They did not during WSIS ten years ago, they still do not.

...

BTW, individuals can start a case against private corporations if those corporations violate their rights they have in the country where they live.

They can start it, but with no effect whatsoever. ICANN would not even appear as a respondent. Just try it. Facebook case below is different. Unlike ICANN, FB has to maintained big business presence in France, as in every big country, and thus a ruling over it can be enforced. ICANN has no such constrains, and would not subject itself to any such foreign court cases.

parminder

...

The case Schrems vs. Facebook is a good example. Facebook is incorporated in the US but does business in Europe. The European Court of Justice decided that Facebook has to respect the rights of privacy of Mr. Schrems, a citizen of Austria.

Hope this helps to end this useless debate.

Wolfgang

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Courts do not enforce the law of a country. I doubt even criminal courts do that, Police and similar agencies are called Law Enforcement for a reason. Courts adjudicate conflicts using the law of the land (mainly civil or common) And at some stage (not reached yet in Sockpuppy's case) courts look at jurisdiction over the parties. If it has (having an office, doing business, ie having assets there) courts most certainly make orders. Which are easily enforced. Courts do not like to make orders which can't be enforced but the .IR/.SY/.KR case is different, not only because of this peculiar US law which establishes jurisdiction. The defendants don't have assets readily available for seizure so the plaintiffs have to "search" for them. As far as jurisdiction goes, there are some 250 countries and if I were to order them, the US would not be on top but still high on the list. I also don't understand why you keep bringing this up. el -- Sent from Dr Lisse's iPad mini 4

On 24 Jun 2016, at 17:55, parminder <parminder@itforchange.net> wrote:

[...]

Courts do not enforce plaintiff’s will, *they enforce the law of the US*. A plaintiff's appeal is just the trigger or the proximate cause. This is quite basic. Not sure why we are discussing such basic factual stuff, and are confused about them. Just because they help a case for sticking to US jurisdiction!? Bec if somehow law can be proved to be neutral, technical, kind of thing, then one can pursue the argument that it doesnt matter which one is employed.

Law is something that comes from the 'will of the people' of a particular nation and is therefore legitimately specific to it, and is illegitimate to apply to others. Tweaking the famous call from US independence struggle "no taxation without representation" to "no legislation without representation". Taxation is after also a law, and its enforcement. If freedom and self- representation was important to the US centuries ago, and hopefully still is, please give some consideration to the rest of the world too. A humble appeal.

A comment below on another regularly expressed confusion ...

...

The US courts do not (as in some jurisdictions) have any proactive, prosecutorial or investigative powers. (In limited circumstances, in the context of an actual litigation, the court can appoint experts, but that's about as far as that goes.)

The cases Rubens cites are disputes between private parties or between a private party and ICANN. The US court is the forum for those disputes. This is not "interference of the United States."

If ICANN were located in another jurisdiction, that jurisdiction's courts would be hearing these disputes. Notably, ICANN is subject to being sued in other countries where it has offices,

It is only useful to sue an organisation in a country whose judicial authorities can enforce their decisions over that organisation, as US courts can over ICANN as a US registered body. It is vain to and meaningless to sue it elsewhere. Most courts outside would even refuse to take on the case pointing to the pointlessness of it....

BTW, if it was the same about suing it wherever ICANN was, why then not let it be in a non US location... Why is US and the USians so keen to keep it in the US, so much so that the jurisdiction issue even suddenly disappears from the agenda of the workstream 2, only to make an reappearance bec Brazil gov is too strong a party to be treated lightly :)

parminder

...

so there are already alternatives if plaintiffs want to find a different venue in which to seek redress. While this is a possibility, I believe all plaintiffs that have sued ICANN have done so in the US. This may say something about the appeal of the US as a jurisdiction for resolving disputes.

Greg

...

On Wed, Jun 22, 2016 at 4:13 PM, Rubens Kuhl <rubensk@nic.br> wrote:

...

Em 22 de jun de 2016, à(s) 16:39:000, Phil Corwin <psc@vlaw-dc.com> escreveu:

So long as we have a common understanding of what would constitute “interference by the U.S. government” (of which there has been little to none since ICANN’s inception, with the possible exception of the delay in .xxx delegation to the root). I presume you are advocating deciding upon a process to address such an occurrence, rather than making a decision now about an alternate jurisdiction for a situation that may never arise, or occur decades from now.

I’ll start that discussion by stating that it would likely include interference in ICANN’s policymaking process (outside of advocacy within the GAC) or trying to block or compel a change in the root zone, through methods that are inconsistent with the Bylaws.

I don’t think it should include private litigation brought against ICANN and heard in state or federal court; or law enforcement actions, such as bringing an antitrust action if there is an allegation of illicit pricing decisions, or criminal charges against an ICANN employee for embezzlement, etc.

There is already litigation in California and federal courts that would compel changes in the root zone, like the litigation against the ccTLDs of Syria and Iran, or the current .africa litigation... so this interference of the US legal system within ICANN policy making process is already happening in some cases or imminent in others.

Rubens

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Dear Phil, I can´t fully follow your segmentation

I’ll start that discussion by stating that it would likely include interference in ICANN’s policymaking process (outside of advocacy within the GAC) or trying to block or compel a change in the root zone, through methods that are inconsistent with the Bylaws.

Agree

I don’t think it should include private litigation brought against ICANN and heard in state or federal court; or law enforcement actions, such as bringing an antitrust action if there is an allegation of illicit pricing decisions,

why not? Who is going to hear the case set liabilities and eventually compensation????

or criminal charges against an ICANN employee for embezzlement, etc.

Agree

Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Wednesday, June 22, 2016 3:15 PM To: Guru Acharya; Roelof Meijer Cc: accountability-cross-community@icann.org Subject: [CCWG-ACCT] premature jurisdiction debates

In the reflexive approach, you would ask "what are the institutional mechanisms or procedures to ensure that jurisdiction issue can be addressed in an adverse situation where the US jurisdiction is longer tenable, however rare it may it?" In the absolute rarest of rare cases that the US legislature or judiciary try to interfere with community decisions (the black swan scenario), how would ICANN ensure that this interference is contained/minimised? What are the institutional mechanisms or procedures for addressing the situation where the US (or any other) jurisdiction is no longer hospitable/ideal for the ICANN policymaking or IANA functions? These are the questions that we should be asking in the WS2 on jurisdiction.

MM: I think this is a good point. Even advocates of US jurisdiction or those who, like me, think there is just no better alternative and that the disruption and risks caused by a change are not worth the uncertain improvements, can easily agree that there should be procedures or plans for how to respond to interference by the U.S. government.

Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology

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In *Weinstein v. Islamic Republic of Iran*, the plaintiffs attempted to enforce the judgment by seizing the .ir TLD, claiming that it was an asset of Iran. The US Department of Justice filed a brief opposing the seizure, stating that a TLD is not property or an asset, and that the TLD was beyond the reach of the US law governing seizure of certain foreign assets. (ICANN submitted similar arguments to the court.) The federal judge hearing the case ruled against this attempt, siding with ICANN and DOJ. Is this what you are calling U.S. "interference"? Would it have been better if DOJ had not filed a brief? As Phil points out, the case is currently on appeal to the D.C. Circuit. It was argued but has not yet been decided. Greg On Wed, Jun 22, 2016 at 4:36 PM, farzaneh badii <farzaneh.badii@gmail.com> wrote:

Hi Rubens

I think the interference in .ir and Syria case is quite different from .africa. , .In .ir case the claimant had a judgment against iran which it had obtained through the us courts relying on US laws and wanted to enforce the judgement through attaching .ir to the claimant. I call that interference. In .africa two competing organizations have a dispute over the delegation of .africa. I am not sure if we can compare the two. On 22 Jun 2016 22:14, "Rubens Kuhl" <rubensk@nic.br> wrote:

...

Dear Phil,

I can´t fully follow your segmentation

I’ll start that discussion by stating that it would likely include

...

interference in ICANN’s policymaking process (outside of advocacy within the GAC) or trying to block or compel a change in the root zone, through methods that are inconsistent with the Bylaws.

Agree

...

I don’t think it should include private litigation brought against ICANN and heard in state or federal court; or law enforcement actions, such as bringing an antitrust action if there is an allegation of illicit pricing decisions,

why not? Who is going to hear the case set liabilities and eventually compensation????

or criminal charges against an ICANN employee for embezzlement, etc.

...

Agree

...

Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

From: accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Wednesday, June 22, 2016 3:15 PM To: Guru Acharya; Roelof Meijer Cc: accountability-cross-community@icann.org Subject: [CCWG-ACCT] premature jurisdiction debates

In the reflexive approach, you would ask "what are the institutional mechanisms or procedures to ensure that jurisdiction issue can be addressed in an adverse situation where the US jurisdiction is longer tenable, however rare it may it?" In the absolute rarest of rare cases that the US legislature or judiciary try to interfere with community decisions (the black swan scenario), how would ICANN ensure that this interference is contained/minimised? What are the institutional mechanisms or procedures for addressing the situation where the US (or any other) jurisdiction is no longer hospitable/ideal for the ICANN policymaking or IANA functions? These are the questions that we should be asking in the WS2 on jurisdiction.

MM: I think this is a good point. Even advocates of US jurisdiction or those who, like me, think there is just no better alternative and that the disruption and risks caused by a change are not worth the uncertain improvements, can easily agree that there should be procedures or plans for how to respond to interference by the U.S. government.

Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology

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The issues you cite are not issues of US government interference. The Weinstein case involves private parties. The plaintiffs had a right to argue that .ir was an asset of Iran and subject to seizure. They could and would have made this argument regardless of where ICANN was located (since there are ways of seizing assets located in other jurisdictions, to the extent their arguments relied on the idea that .ir was located in the US). ICANN's "jurisdiction" is thus irrelevant. Similarly, whether or not there are TRIA-like laws in other jurisdictions is beside the point. The general issue is the ability to seize assets to satisfy a court judgment; as far as I know, this is common to most if not all jurisdictions. Similarly, most countries will hear cases to enforce a judgment granted in another country. I'm not against addressing the complications. But we need to be careful in what we identify as complications that arise from ICANN's "jurisdiction" (which means a number of different things, which I know we will unpack in the months to come). Greg On Wed, Jun 22, 2016 at 5:20 PM, farzaneh badii <farzaneh.badii@gmail.com> wrote:

There is a difference between the possibility of interference and interference. I agree that up until now there was no interference and that US Department of Justice opposing might have helped too and I do agree that there are other ways to limit such interferences even by referring to the Foreign Sovereign Immunities Act ( which I think ICANN did in its argument). But we cannot deny that US jurisdiction gives the possibility of interference (might be unsuccessful and might not work) especially in the case of Iran.

*"**If ICANN were located in another jurisdiction, that jurisdiction's courts would be hearing these disputes. " : *the Plaintiff used and is using Terrorism Risk Insurance Act of 2002 in its arguments. Are there Acts similar to TRIA in other countries? If yes then the statement is correct. If not then we might want to look at what can be done to avoid disputes similar to Iran's case.

Just to clarify I am of the opinion that the issue of jurisdiction has been championed by states while they are not providing many good reasons for it. It might be that there are not many real good reasons for it. We just have to solve some complications and we are good to go. But we have to address the complications.

On 22 June 2016 at 22:53, Greg Shatan <gregshatanipc@gmail.com> wrote:

...

In *Weinstein v. Islamic Republic of Iran*, the plaintiffs attempted to enforce the judgment by seizing the .ir TLD, claiming that it was an asset of Iran. The US Department of Justice filed a brief opposing the seizure, stating that a TLD is not property or an asset, and that the TLD was beyond the reach of the US law governing seizure of certain foreign assets. (ICANN submitted similar arguments to the court.) The federal judge hearing the case ruled against this attempt, siding with ICANN and DOJ. Is this what you are calling U.S. "interference"? Would it have been better if DOJ had not filed a brief?

As Phil points out, the case is currently on appeal to the D.C. Circuit. It was argued but has not yet been decided.

Greg

On Wed, Jun 22, 2016 at 4:36 PM, farzaneh badii <farzaneh.badii@gmail.com

...

wrote:

...

Hi Rubens

I think the interference in .ir and Syria case is quite different from .africa. , .In .ir case the claimant had a judgment against iran which it had obtained through the us courts relying on US laws and wanted to enforce the judgement through attaching .ir to the claimant. I call that interference. In .africa two competing organizations have a dispute over the delegation of .africa. I am not sure if we can compare the two. On 22 Jun 2016 22:14, "Rubens Kuhl" <rubensk@nic.br> wrote:

...

Dear Phil,

I can´t fully follow your segmentation

I’ll start that discussion by stating that it would likely include

...

interference in ICANN’s policymaking process (outside of advocacy within the GAC) or trying to block or compel a change in the root zone, through methods that are inconsistent with the Bylaws.

Agree

...

I don’t think it should include private litigation brought against ICANN and heard in state or federal court; or law enforcement actions, such as bringing an antitrust action if there is an allegation of illicit pricing decisions,

why not? Who is going to hear the case set liabilities and eventually compensation????

or criminal charges against an ICANN employee for embezzlement, etc.

...

Agree

...

Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

From: accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Wednesday, June 22, 2016 3:15 PM To: Guru Acharya; Roelof Meijer Cc: accountability-cross-community@icann.org Subject: [CCWG-ACCT] premature jurisdiction debates

In the reflexive approach, you would ask "what are the institutional mechanisms or procedures to ensure that jurisdiction issue can be addressed in an adverse situation where the US jurisdiction is longer tenable, however rare it may it?" In the absolute rarest of rare cases that the US legislature or judiciary try to interfere with community decisions (the black swan scenario), how would ICANN ensure that this interference is contained/minimised? What are the institutional mechanisms or procedures for addressing the situation where the US (or any other) jurisdiction is no longer hospitable/ideal for the ICANN policymaking or IANA functions? These are the questions that we should be asking in the WS2 on jurisdiction.

MM: I think this is a good point. Even advocates of US jurisdiction or those who, like me, think there is just no better alternative and that the disruption and risks caused by a change are not worth the uncertain improvements, can easily agree that there should be procedures or plans for how to respond to interference by the U.S. government.

Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology

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-- Farzaneh

Other than that the two cases are different, nothing else is correct. The claimants against Iran, Syria and North Korea, have obtained (if only by default) enforceable judgements against Iran, Syria and North Korea and are entitled to enforce the judgements against Iran, Syria and North Korea. Which they are doing against Iran, Syria and North Korea. Not against ICANN, which is not a party to the suit. If you owed me money and I got a court to agree I can ask the court to order a bank to transfer funds from your account to satisfy the judgement. The bank then can try and resist, as ICANN is trying to, but still that doesn't make the bank a party or can be called interfering with the bank. And while indeed the two "competing" applicants have a dispute about the delegation, that is not what the court case is about, from which ZACR has been dismissed as not being a party to the dispute. DCA has obtained an ex-parte Temporary Restraining Order, under relaxed standards of proof of merits (none, allegations are sufficient) against ICANN, not against ZACR. While I believe DCA will resoundingly fail, on the merits, when it reaches the stage of looking at the merits, as they did against ZACR, they must be entitled to seek protection from ICANN "creating facts" which are difficult to undo (but not impossible, which ICANN initially alleged, but now has admitted it can be done). The issue is not whether a court is "interfering" with ICANN but whether ICANN is accountable. Which in DCA's case they almost certainly were not, one must admit, even if Sockpuppy is quite over the top with her allegations. Never mind that she might have had to allege fraud in order to be able to overcome the non-suing clause in the Guidebook. el -- Sent from Dr Lisse's iPad mini 4

On 22 Jun 2016, at 21:36, farzaneh badii <farzaneh.badii@gmail.com> wrote:

Hi Rubens

I think the interference in .ir and Syria case is quite different from .africa. , .In .ir case the claimant had a judgment against iran which it had obtained through the us courts relying on US laws and wanted to enforce the judgement through attaching .ir to the claimant. I call that interference. In .africa two competing organizations have a dispute over the delegation of .africa. I am not sure if we can compare the two.

I'm not familiar with the details on that. But any nation controls its own ccTLD. ICANN maintains the root zone, it doesn't decide who performs technical and other operations for a given ccTLD. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC   "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Wednesday, June 22, 2016 5:11 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] premature jurisdiction debates And the redelegation of .US . . . . On 22/06/16 20:39, Phil Corwin wrote:

So long as we have a common understanding of what would constitute "interference by the U.S. government" (of which there has been little to none since ICANN's inception, with the possible exception of the delay in .xxx delegation to the root). I presume you are advocating deciding upon a process to address such an occurrence, rather than making a decision now about an alternate jurisdiction for a situation that may never arise, or occur decades from now.

I'll start that discussion by stating that it would likely include interference in ICANN's policymaking process (outside of advocacy within the GAC) or trying to block or compel a change in the root zone, through methods that are inconsistent with the Bylaws.

I don't think it should include private litigation brought against ICANN and heard in state or federal court; or law enforcement actions, such as bringing an antitrust action if there is an allegation of illicit pricing decisions, or criminal charges against an ICANN employee for embezzlement, etc.

*Philip S. Corwin, Founding Principal*

*Virtualaw LLC*

*1155 F Street, NW*

*Suite 1050*

*Washington, DC 20004*

*202-559-8597/Direct*

*202-559-8750/Fax*

*202-255-6172/Cell***

**

*Twitter: @VlawDC*

*/"Luck is the residue of design" -- Branch Rickey/*

*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Mueller, Milton L *Sent:* Wednesday, June 22, 2016 3:15 PM *To:* Guru Acharya; Roelof Meijer *Cc:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] premature jurisdiction debates

In the reflexive approach, you would ask "what are the institutional mechanisms or procedures to ensure that jurisdiction issue can be addressed in an adverse situation where the US jurisdiction is longer tenable, however rare it may it?" In the absolute rarest of rare cases that the US legislature or judiciary try to interfere with community decisions (the black swan scenario), how would ICANN ensure that this interference is contained/minimised? What are the institutional mechanisms or procedures for addressing the situation where the US (or any other) jurisdiction is no longer hospitable/ideal for the ICANN policymaking or IANA functions? These are the questions that we should be asking in the WS2 on jurisdiction.

MM: I think this is a good point. Even advocates of US jurisdiction or those who, like me, think there is just no better alternative and that the disruption and risks caused by a change are not worth the uncertain improvements, can easily agree that there should be procedures or plans for how to respond to interference by the U.S. government.

Dr. Milton L. Mueller

Professor, School of Public Policy

Georgia Institute of Technology

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On 22 Jun 2016, at 22:30, Phil Corwin <psc@vlaw-dc.com> wrote:

I'm not familiar with the details on that. But any nation controls its own ccTLD.

Where do you come up with this idea from? el

Yes, there are cases where ccTLDs are not being operated by nation/govt/state and instead by a private entity. From: farzaneh badii <farzaneh.badii@gmail.com> To: Phil Corwin <psc@vlaw-dc.com> Cc: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Sent: Thursday, June 23, 2016 2:47 AM Subject: Re: [CCWG-ACCT] premature jurisdiction debates No  "Any nation controls its own ccTLD" is very much disputed and does not apply to all ccTLDs. I am sure the ccNSO community can shed light on that. Using the term "own" implies that ccTLD is property while it is yet to be clarified and some ccTLD operators argue vehemently against it.   And I don't know what is meant by nations here. It is meant the states? So states own their ccTLDs? Not necessarily and not all ccTLDs operate similarly.  On 22 June 2016 at 23:30, Phil Corwin <psc@vlaw-dc.com> wrote: I'm not familiar with the details on that. But any nation controls its own ccTLD. ICANN maintains the root zone, it doesn't decide who performs technical and other  operations for a given ccTLD. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC   "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Wednesday, June 22, 2016 5:11 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] premature jurisdiction debates And the redelegation of .US  . . . . On 22/06/16 20:39, Phil Corwin wrote:

So long as we have a common understanding of what would constitute "interference by the U.S. government" (of which there has been little to none since ICANN's inception, with the possible exception of the delay in .xxx delegation to the root). I presume you are advocating deciding upon a process to address such an occurrence, rather than making a decision now about an alternate jurisdiction for a situation that may never arise, or occur decades from now.

I'll start that discussion by stating that it would likely include interference in ICANN's policymaking process (outside of advocacy within the GAC) or trying to block or compel a change in the root zone, through methods that are inconsistent with the Bylaws.

I don't think it should include private litigation brought against ICANN and heard in state or federal court; or law enforcement actions, such as bringing an antitrust action if there is an allegation of illicit pricing decisions, or criminal charges against an ICANN employee for embezzlement, etc.

*Philip S. Corwin, Founding Principal*

*Virtualaw LLC*

*1155 F Street, NW*

*Suite 1050*

*Washington, DC 20004*

*202-559-8597/Direct*

*202-559-8750/Fax*

*202-255-6172/Cell***

**

*Twitter: @VlawDC*

*/"Luck is the residue of design" -- Branch Rickey/*

*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Mueller, Milton L *Sent:* Wednesday, June 22, 2016 3:15 PM *To:* Guru Acharya; Roelof Meijer *Cc:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] premature jurisdiction debates

In the reflexive approach, you would ask "what are the institutional mechanisms or procedures to ensure that jurisdiction issue can be addressed in an adverse situation where the US jurisdiction is longer tenable, however rare it may it?" In the absolute rarest of rare cases that the US legislature or judiciary try to interfere with community decisions (the black swan scenario), how would ICANN ensure that this interference is contained/minimised? What are the institutional mechanisms or procedures for addressing the situation where the US (or any other) jurisdiction is no longer hospitable/ideal for the ICANN policymaking or IANA functions? These are the questions that we should be asking in the WS2 on jurisdiction.

MM: I think this is a good point. Even advocates of US jurisdiction or those who, like me, think there is just no better alternative and that the disruption and risks caused by a change are not worth the uncertain improvements, can easily agree that there should be procedures or plans for how to respond to interference by the U.S. government.

Dr. Milton L. Mueller

Professor, School of Public Policy

Georgia Institute of Technology

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I think the more germane (and more accurate) statement of Phil's was the second part of his couplet: ICANN maintains the root zone, it doesn't decide who performs technical and other operations for a given ccTLD. (Yes, actually the Root Zone Maintainer (currently Verisign) actually maintains the root zone, not ICANN. The point is the powerlessness of ICANN to actually cause (rather than receive, verify and transmit) changes to the root. This will be even more so when Root Zone administration is in a separate corporation (currently known as PTI).) I know enough about ccTLD "control" to know that any generality about ccTLD control is false. Even this one. Greg On Wed, Jun 22, 2016 at 6:36 PM, Stephen Deerhake <sdeerhake@nic.as> wrote:

Greetings Phil.

You state:

...

I'm not familiar with the details on that. But any nation controls its own ccTLD.

Can you cite any statute (US or otherwise) or policy (IETF, IANA, ICANN, etc.) that supports your claim that "...any nation controls its own ccTLD."?

Thank you.

Regards,

Stephen Deerhake .AS Domain Registry GDNS, LLC

-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Phil Corwin Sent: Wednesday, June 22, 2016 5:30 PM To: Nigel Roberts <nigel@channelisles.net>; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] premature jurisdiction debates

I'm not familiar with the details on that. But any nation controls its own ccTLD.

ICANN maintains the root zone, it doesn't decide who performs technical and other operations for a given ccTLD.

Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Wednesday, June 22, 2016 5:11 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] premature jurisdiction debates

And the redelegation of .US . . . .

On 22/06/16 20:39, Phil Corwin wrote:

...

So long as we have a common understanding of what would constitute "interference by the U.S. government" (of which there has been little to none since ICANN's inception, with the possible exception of the delay in .xxx delegation to the root). I presume you are advocating deciding upon a process to address such an occurrence, rather than making a decision now about an alternate jurisdiction for a situation that may never arise, or occur decades from now.

I'll start that discussion by stating that it would likely include interference in ICANN's policymaking process (outside of advocacy within the GAC) or trying to block or compel a change in the root zone, through methods that are inconsistent with the Bylaws.

I don't think it should include private litigation brought against ICANN and heard in state or federal court; or law enforcement actions, such as bringing an antitrust action if there is an allegation of illicit pricing decisions, or criminal charges against an ICANN employee for embezzlement, etc.

*Philip S. Corwin, Founding Principal*

*Virtualaw LLC*

*1155 F Street, NW*

*Suite 1050*

*Washington, DC 20004*

*202-559-8597/Direct*

*202-559-8750/Fax*

*202-255-6172/Cell***

**

*Twitter: @VlawDC*

*/"Luck is the residue of design" -- Branch Rickey/*

*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Mueller, Milton L *Sent:* Wednesday, June 22, 2016 3:15 PM *To:* Guru Acharya; Roelof Meijer *Cc:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] premature jurisdiction debates

In the reflexive approach, you would ask "what are the institutional mechanisms or procedures to ensure that jurisdiction issue can be addressed in an adverse situation where the US jurisdiction is longer tenable, however rare it may it?" In the absolute rarest of rare cases that the US legislature or judiciary try to interfere with community decisions (the black swan scenario), how would ICANN ensure that this interference is contained/minimised? What are the institutional mechanisms or procedures for addressing the situation where the US (or any other) jurisdiction is no longer hospitable/ideal for the ICANN policymaking or IANA functions? These are the questions that we should be asking in the WS2 on jurisdiction.

MM: I think this is a good point. Even advocates of US jurisdiction or those who, like me, think there is just no better alternative and that the disruption and risks caused by a change are not worth the uncertain improvements, can easily agree that there should be procedures or plans for how to respond to interference by the U.S. government.

Dr. Milton L. Mueller

Professor, School of Public Policy

Georgia Institute of Technology

---------------------------------------------------------------------- --

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Hi, The ccTLD and the gTLD/other TLDs records are within the ICANN root. While there are procedures that ensures a distributed control, the reality remains that the one who maintains the root has the overall "technical control" which is Verisign. The community/ICANN/ccTLD et all trust that they will continue to respect laid down process and not go out of scope. That symbolises the principle for which the internet was built upon which is trust at the middle of all our political and personal interests. Regards Sent from my LG G4 Kindly excuse brevity and typos On 23 Jun 2016 6:25 a.m., "Phil Corwin" <psc@vlaw-dc.com> wrote:

Appreciate your intervention, Greg.

As you point out, my main point was that ICANN maintains an accurate root zone file (yes, with VeriSign performing the actual technical work, now under contract with the USG, soon to be under contract with ICANN) and has no control over the operation of a ccTLD.

I stand corrected on my use of the word "control" in regard to the relationship between a national government of the country with which the particular ccTLD is associated, and this denizen of the gTLD sector looks forward to learning more about ccTLDs.

Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell

Twitter: @VLawDC

"Luck is the residue of design" -- Branch Rickey

Sent from my iPad

On Jun 22, 2016, at 6:45 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:

I think the more germane (and more accurate) statement of Phil's was the second part of his couplet:

ICANN maintains the root zone, it doesn't decide who performs technical and other operations for a given ccTLD.

(Yes, actually the Root Zone Maintainer (currently Verisign) actually maintains the root zone, not ICANN. The point is the powerlessness of ICANN to actually cause (rather than receive, verify and transmit) changes to the root. This will be even more so when Root Zone administration is in a separate corporation (currently known as PTI).)

I know enough about ccTLD "control" to know that any generality about ccTLD control is false. Even this one.

Greg

On Wed, Jun 22, 2016 at 6:36 PM, Stephen Deerhake <sdeerhake@nic.as> wrote:

...

Greetings Phil.

You state:

...

I'm not familiar with the details on that. But any nation controls its own ccTLD.

Can you cite any statute (US or otherwise) or policy (IETF, IANA, ICANN, etc.) that supports your claim that "...any nation controls its own ccTLD."?

Thank you.

Regards,

Stephen Deerhake .AS Domain Registry GDNS, LLC

-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Phil Corwin Sent: Wednesday, June 22, 2016 5:30 PM To: Nigel Roberts <nigel@channelisles.net>; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] premature jurisdiction debates

I'm not familiar with the details on that. But any nation controls its own ccTLD.

ICANN maintains the root zone, it doesn't decide who performs technical and other operations for a given ccTLD.

Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Wednesday, June 22, 2016 5:11 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] premature jurisdiction debates

And the redelegation of .US . . . .

On 22/06/16 20:39, Phil Corwin wrote:

...

So long as we have a common understanding of what would constitute "interference by the U.S. government" (of which there has been little to none since ICANN's inception, with the possible exception of the delay in .xxx delegation to the root). I presume you are advocating deciding upon a process to address such an occurrence, rather than making a decision now about an alternate jurisdiction for a situation that may never arise, or occur decades from now.

I'll start that discussion by stating that it would likely include interference in ICANN's policymaking process (outside of advocacy within the GAC) or trying to block or compel a change in the root zone, through methods that are inconsistent with the Bylaws.

I don't think it should include private litigation brought against ICANN and heard in state or federal court; or law enforcement actions, such as bringing an antitrust action if there is an allegation of illicit pricing decisions, or criminal charges against an ICANN employee for embezzlement, etc.

*Philip S. Corwin, Founding Principal*

*Virtualaw LLC*

*1155 F Street, NW*

*Suite 1050*

*Washington, DC 20004*

*202-559-8597/Direct*

*202-559-8750/Fax*

*202-255-6172/Cell***

**

*Twitter: @VlawDC*

*/"Luck is the residue of design" -- Branch Rickey/*

*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Mueller, Milton L *Sent:* Wednesday, June 22, 2016 3:15 PM *To:* Guru Acharya; Roelof Meijer *Cc:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] premature jurisdiction debates

In the reflexive approach, you would ask "what are the institutional mechanisms or procedures to ensure that jurisdiction issue can be addressed in an adverse situation where the US jurisdiction is longer tenable, however rare it may it?" In the absolute rarest of rare cases that the US legislature or judiciary try to interfere with community decisions (the black swan scenario), how would ICANN ensure that this interference is contained/minimised? What are the institutional mechanisms or procedures for addressing the situation where the US (or any other) jurisdiction is no longer hospitable/ideal for the ICANN policymaking or IANA functions? These are the questions that we should be asking in the WS2 on jurisdiction.

MM: I think this is a good point. Even advocates of US jurisdiction or those who, like me, think there is just no better alternative and that the disruption and risks caused by a change are not worth the uncertain improvements, can easily agree that there should be procedures or plans for how to respond to interference by the U.S. government.

Dr. Milton L. Mueller

Professor, School of Public Policy

Georgia Institute of Technology

---------------------------------------------------------------------- --

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Sent from my LG G4 Kindly excuse brevity and typos On 23 Jun 2016 10:02, "Dr Eberhard W Lisse" <el@lisse.na> wrote:

Verisign has no control whatsoever, they are just technical.

SO: He makes my point yet he says I am wrong; the one that maintains the root has the "technical control" and can do wonders (if it wants to!). Beyond that is administrative which is the procedures that I mention and that is where NTIA exist! I take my VC's instruction to do xyz technically but that does not remove the fact that I have the capability to do abc as well but ofcourse it's with consequences. Regards

el

-- Sent from Dr Lisse's iPad mini 4

On 23 Jun 2016, at 09:27, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:

...

Hi,

The ccTLD and the gTLD/other TLDs records are within the ICANN root. While there are procedures that ensures a distributed control, the reality remains that the one who maintains the root has the overall "technical control" which is Verisign. The community/ICANN/ccTLD et all trust that they will continue to respect laid down process and not go out of scope.

That symbolises the principle for which the internet was built upon which is trust at the middle of all our political and personal interests.

Regards Sent from my LG G4 Kindly excuse brevity and typos

On 23 Jun 2016 6:25 a.m., "Phil Corwin" <psc@vlaw-dc.com> wrote:

...

Appreciate your intervention, Greg.

As you point out, my main point was that ICANN maintains an accurate

root zone file (yes, with VeriSign performing the actual technical work, now under contract with the USG, soon to be under contract with ICANN) and has no control over the operation of a ccTLD.

...

I stand corrected on my use of the word "control" in regard to the

relationship between a national government of the country with which the particular ccTLD is associated, and this denizen of the gTLD sector looks forward to learning more about ccTLDs.

...

Philip S. Corwin, Founding Principal

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

I don’t think this is correct, Greg. ICANN is responsible for delegating TLDs to applicants. The criteria and procedures are different for ccTLDs than gTLDs but in both cases ICANN does more than passively update root zone records, it plays a role in deciding which party those root zone records point to. The point is the powerlessness of ICANN to actually cause (rather than receive, verify and transmit) changes to the root.

From: Phil Corwin [mailto:psc@vlaw-dc.com]

possible exception of the delay in .xxx delegation to the root).

MM: POSSIBLE exception?!? I would say a campaign to get NTIA to deny authorizing its entry in the root by a religious group that was a key supporter of the Bush administration, a complete 180 degree turnaround in the position of NTIA, a phone call from the Asst Secretary of Commerce, and the subsequent change in ICANN’s board vote clearly constituted political interference in the policy making process. The refusal of many people to acknowledge that this happened is the kind of willful blindness that fosters mistrust of America’s role in ICANN. There is another example, involving the IANA contract, but I won’t describe it because the IANA contract is no longer a factor. PC: I’ll start that discussion by stating that it would likely include interference in ICANN’s policymaking process (outside of advocacy within the GAC) or trying to block or compel a change in the root zone, through methods that are inconsistent with the Bylaws. MM: good definition. We are generally talking about policy-motivated interference that exploits US jurisdiction PC I don’t think it should include private litigation brought against ICANN and heard in state or federal court; MM: agree PC or law enforcement actions MM: that depends. Antitrust could be ok but I could think of other LEA actions that might constitute interference PC or criminal charges against an ICANN employee for embezzlement, etc. MM: of course.

Even if we agree with these distinctions (which I dont though), any State would not ask you what kind of jurisdiction you admit and which not. That is the whole point of state's sovereignty. So the main issue is, what is the plan for those kinds of 'interferences' you are not ready to admit. Please spell out what is going to be done as these non-admissible interferences become imminent. Or is the plan to wait till one happens and then think about what to do? parminder On Friday 24 June 2016 09:31 PM, Carlos Raúl Gutiérrez G. wrote:

...

PC I don’t think it should include private litigation brought against ICANN and heard in state or federal court;

MM: agree

PC or law enforcement actions

MM: that depends. Antitrust could be ok but I could think of other LEA actions that might constitute interference

Agree with MM

...

PC or criminal charges against an ICANN employee for embezzlement, etc.

MM: of course.

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On Saturday 25 June 2016 12:20 AM, Greg Shatan wrote:

I have no idea what you mean by "non-admissible."

Phil, Guru and Milton have been trying to list criteria or typology of what can be considered as wrongful interference in ICANN policy processes. Pl see their emails in this thread. parminder

On Friday, June 24, 2016, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:

Even if we agree with these distinctions (which I dont though), any State would not ask you what kind of jurisdiction you admit and which not. That is the whole point of state's sovereignty. So the main issue is, what is the plan for those kinds of 'interferences' you are not ready to admit. Please spell out what is going to be done as these non-admissible interferences become imminent. Or is the plan to wait till one happens and then think about what to do?

parminder

On Friday 24 June 2016 09:31 PM, Carlos Raúl Gutiérrez G. wrote:

...

...

PC I don’t think it should include private litigation brought against ICANN and heard in state or federal court;

MM: agree

PC or law enforcement actions

MM: that depends. Antitrust could be ok but I could think of other LEA actions that might constitute interference

Agree with MM

...

PC or criminal charges against an ICANN employee for embezzlement, etc.

MM: of course.

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They don't have contempt of court laws in the US anymore? On 23/06/16 05:33, parminder wrote:

On Thursday 23 June 2016 12:44 AM, Mueller, Milton L wrote:

...

In the reflexive approach, you would ask "what are the institutional mechanisms or procedures to ensure that jurisdiction issue can be addressed in an adverse situation where the US jurisdiction is longer tenable, however rare it may it?" In the absolute rarest of rare cases that the US legislature or judiciary try to interfere with community decisions (the black swan scenario), how would ICANN ensure that this interference is contained/minimised? What are the institutional mechanisms or procedures for addressing the situation where the US (or any other) jurisdiction is no longer hospitable/ideal for the ICANN policymaking or IANA functions? These are the questions that we should be asking in the WS2 on jurisdiction.THe those who, like me, think there is just no better alternative and that the disruption and risks caused by a change are not worth the uncertain improvements, can easily agree that there should be procedures or plans for how to respond to interference by the U.S. government.

One proposal that I made recently to the ISOC and Just Net Coalition lists was precisely to have a clear statement of and criteria for 'undue interference' from US gov/ state in ICANN's policy making remit defined and inserted in ICANN bylaws. The moment the conditions of these criteria are met, first a process of change of physical location and therefore jurisdiction of the authoritative root file sets in. For this a backup physical as well legal (PTI) system would already be ready in another country (in my argument, I used the possibility of Singapore, since it has an existing ICANN office) and when the criteria are deemed to have been met, a switch over to the backup system gets made right away... There of course would be significant technical and legal issues to be taken care of for keeping the backup ready to be switched on with minimum disruption, but that is what is required to be done. This system should technically and legally be already in place, and fully tested for a switch over.

The biggest advantage of such a backup is that, like any good check and balance system, it is extremely (repeat, extremly) unlikely to ever need to get kicked in. It simply acts as a deterrent. For instance, any court (or other US state agency) taking cognizance of an issue whose judicial resolution implicates ICANN global policy remit would be made aware of the fact of this 'backup' system and ICANN's obligation to take resort to it, the moment any decision of the US state causes incursion on ICANN global policy authority. The chances are, the relevant court, or any other US state agency, will take the hint.

Yes, the US state can force the ICANN board to not take the backup route but that problem, it faced, too can be solved by an automatic shift to a back ICANN already registered, say in Singapore, which automatically takes up the ICANN policy authority (and thus becomes the real ICANN) the moment the said criteria are met. The same ICANN board now meets in Singapore as and under the Singapore registered ICANN legal entity, and things take on from there... (And with the shift, say to Singapore, another backup in another country gets made ready.......)

The proposal was extensively presented to the ISOC list last month. There may be more elements that I missed stating above, leaving some gaps. Rushing out for a meeting... Will add later on..... parminder

...

Dr. Milton L. Mueller

Professor, School of Public Policy

Georgia Institute of Technology

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