Nigel, Thank you for your thoughtful responses. In terms of exhausting domestic legal remedies, would .cat and its registrants be able to proceed on Article 11 of the EU Charter of Fundamental Rights? http://www.europarl.europa.eu/charter/pdf/text_en.pdf Are we concerned that the governing EU law (and the ECHR Treaty) are both inadequate to protect the registry and .cat registrants from the Spanish government? (Apparently the EU Charter of Fundamental Rights was not made effective until the Treaty of Lisbon entered into force in 2009.) What is it that we are expecting ICANN to be able to do? As to someone else’s comment re the U.S. being in a position to shut down ICANN and the allegation that "this should be remedied", it strikes me that we should keep in mind that the U.S. has a First Amendment. It isn't clear to me why anyone thinks that the greatest danger here is that the U.S. Government would do what the Spanish government did. I would venture to say that injunctive relief for the registry would be immediately forthcoming and that the U.S. may be the very safest place for ICANN to be headquartered when it comes to freedom of speech. (It’s up to the RDS WG to come forward with a recommendation to balance privacy with consumer protection and criminal activity on the Internet.) Regarding jurisdictional considerations, perhaps we should be a bit more worried about ineffective enforcement of free speech rights. Why does the Spanish government, which again I note is an EU government, dare to do this when it is theoretically subject to the Charter of Fundamental Rights and a member of the ECHR treaty? I’m sure this will prove an interesting discussion in Abu Dhabi in the high interest topic of Jurisdiction. Anne -----Original Message----- From: Nigel Roberts [mailto:nigel@channelisles.net] Sent: Thursday, September 21, 2017 12:42 PM To: Aikman-Scalese, Anne; 'Paul Rosenzweig'; 'Thiago Braz Jardim Oliveira'; 'farzaneh badii' Cc: 'ws2-jurisdiction'; ws2-hr@icann.org Subject: Re: [Ws2-hr] [Ws2-jurisdiction] RES: .cat The EU doesn't have a human rights court. The European Court of Justice in Lux. is the highest court on matters of EU law. The European Court of Human Rights in Strasbourg is not an EU institution. It provides declaratory judgments on infringements by signatories (47 countries, see http://www.coe.int/en/web/about-us/our-member-states ). As a condition of opening a case in the ECHR one must have exhausted domestic legal remedies first.

It appears that many of their judgments are not enforced by national

governments but it would still be good to get the judgment anyway,

wouldn’t it?

Hard to see how ICANN could enforce a Human Rights violation by an EU

government. Squarely in the realm of the EU Court of HR I would think.

Anne

*Anne E. Aikman-Scalese*

Of Counsel

520.629.4428 office

520.879.4725 fax

AAikman@lrrc.com <mailto:AAikman@lrrc.com>

_____________________________

Lewis Roca Rothgerber Christie LLP

One South Church Avenue, Suite 700

Tucson, Arizona 85701-1611

lrrc.com <http://lrrc.com/>

*From:*ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] *On

Behalf Of *Paul Rosenzweig

*Sent:* Wednesday, September 20, 2017 6:57 AM

*To:* 'Thiago Braz Jardim Oliveira'; 'farzaneh badii'; 'Nigel Roberts'

*Cc:* 'ws2-jurisdiction'; ws2-hr@icann.org

*Subject:* Re: [Ws2-hr] [Ws2-jurisdiction] RES: .cat

Actually, that’s wrong Thiago, but you know that. The facts are that

.cat has physical offices in Spain – hence its offices could be raided.

That is true irrespective of whether or not the .cat owners are

corporate domiciled in Spain or in France or anywhere else in the

world. The same is true of ICANN’s offices in Turkey, which have not

been raided by Turkish police and (we all fervently hope never will be).

While I join everyone in dismay at the action of the Spanish authorities

they prove my point, as Nigel said.

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:

https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684

*From:*ws2-jurisdiction-bounces@icann.org

<mailto:ws2-jurisdiction-bounces@icann.org>

[mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Thiago Braz

Jardim Oliveira

*Sent:* Wednesday, September 20, 2017 8:47 AM

*To:* 'farzaneh badii' <farzaneh.badii@gmail.com

<mailto:farzaneh.badii@gmail.com>>; Nigel Roberts

<nigel@channelisles.net <mailto:nigel@channelisles.net>>

*Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org

<mailto:ws2-jurisdiction@icann.org>>; ws2-hr@icann.org

<mailto:ws2-hr@icann.org>

*Subject:* [Ws2-jurisdiction] RES: [Ws2-hr] .cat

Dear all,

Farzaneh is right in disagreeing with Nigel.

The .CAT case only confirms that the territorial State, that is the

State in which territory a legal entity is based (in this case the .CAT

registry), is in the unique position to enforce its prescriptions

against that legal entity.

Notice that the action of "raiding" the .CAT registry was undertaken by

Spanish law enforcers, and only they could have undertaken it (at least

until such time as Spain consents to foreign officials' exercising

forceful actions within Spanish territory). In sum, the "police raid" by

Spain happened because the .CAT registry, being located in Spain, was

subject to the territorial jurisdiction of Spain, notably its exclusive

enforcement jurisdiction.

In the case of ICANN, the lessons the .CAT case teaches us (as if anyone

really needed this case to be convinced of the following) is that the

United States, the country in whose territory ICANN is based (as well as

where are located its DNS management activities), is in the unique

position to enforce law prescriptions against ICANN, to enforce its

sanctions regime against ICANN, to shutdown ICANN, to interfere with

ICANN's DNS management activities. No other country is in a position to

do so, and this should be remedied.

Best regards,

Thiago

*De:*ws2-jurisdiction-bounces@icann.org

<mailto:ws2-jurisdiction-bounces@icann.org>

[mailto:ws2-jurisdiction-bounces@icann.org] *Em nome de *farzaneh badii

*Enviada em:* quarta-feira, 20 de setembro de 2017 08:51

*Para:* Nigel Roberts

*Cc:* ws2-jurisdiction; ws2-hr@icann.org <mailto:ws2-hr@icann.org>

*Assunto:* Re: [Ws2-jurisdiction] [Ws2-hr] .cat

Farzaneh

On Wed, Sep 20, 2017 at 6:24 AM, Nigel Roberts <nigel@channelisles.net

<mailto:nigel@channelisles.net>> wrote:

I think this all clearly proves Paul Rosenzweig's point that ICANN's

jurisdiction is irrelevant as national police forces and judicial

authorities can apply national law to particular registries.

Under the Treaty of Rome, incidentally, the .CAT registry has the

complete right to move it's operations to any of the other 27 Member

states (soon to be 26) of the Union. If it did that, would ICANN itself

then come in the firing line from the Spanish courts, perhaps?

​

I disagree. ICANN's jurisdiction is the most relevant when it comes to

delegation-redelegation of ccTLDs and accreditation of regirars and

approval of registries. This case does not prove the point that ICANN's

jurisdiction is totally irrelenat under all circumstances.​As we clearly

demonstrated at the jurisdiction group.

On 20/09/17 09:58, Thomas Rickert wrote:

Hi all,

you might find this article interesting.

https://www.internetnews.me/2017/09/20/dotcat-registry-offices-raided-spanis...

Best,

Thomas

_______________________________________________

Ws2-jurisdiction mailing list

Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>

https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

_______________________________________________

Ws2-hr mailing list

Ws2-hr@icann.org <mailto:Ws2-hr@icann.org>

https://mm.icann.org/mailman/listinfo/ws2-hr

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

This message and any attachments are intended only for the use of the

individual or entity to which they are addressed. If the reader of this

message or an attachment is not the intended recipient or the employee

or agent responsible for delivering the message or attachment to the

intended recipient you are hereby notified that any dissemination,

distribution or copying of this message or any attachment is strictly

prohibited. If you have received this communication in error, please

notify us immediately by replying to the sender. The information

transmitted in this message and any attachments may be privileged, is

intended only for the personal and confidential use of the intended

recipients, and is covered by the Electronic Communications Privacy Act,

18 U.S.C. §2510-2521.

________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.