Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction

Feb. 23, 2017

      I am extremely reluctant to wade in here, and do so explicitly in my personal capacity as an active participant in the CCWG-Accountability work, including as the rapporteur for the Mission, Commitment, and Core Values provisions of the Bylaws.  These views are mine alone, and may or may not be shared by other members of the ICANN Board.

I respect Parminder’s conviction that ICANN should have immunity as an international organization. But the record of the CCWG-Accountability work reflects the fact that the concept of constituting ICANN as an international organization with privileges and immunities model was discussed but rejected in favor of a model that created specific, externally enforceable community powers of the sort created by the California non-profit corporation statute.  Absent the statutory grant of authority found in California law (and the laws of other jurisdictions no doubt), the community powers are likely not enforceable.

I am also confused about how one would reconcile the privileges and immunity approach with deliberately chosen language in the Bylaws.  Under the US International Organizations Immunities Act, ICANN would first have to be an “international organization” as defined in the Act thus:  For the purposes of this subchapter, the term “international organization” means a public international organization in which the United States participates pursuant to any treaty or under the authority of any Act of Congress authorizing such participation or making an appropriation for such participation, and which shall have been designated by the President through appropriate Executive order as being entitled to enjoy the privileges, exemptions, and immunities provided in this subchapter.”  22 U.S. Code 228.  The Swiss Host State Act, 2007, has similar requirements.  ICANN is not a treaty-based organization, nor is it conducting work normally carried out by an intergovernmental organization.  Turning it into a treaty-based organization would seem to me to violate the Bylaws-mandated Core Value that requires ICANN to remain rooted in the private sector. This language was contested on numerous occasions by members of the GAC, and the community repeatedly insisted on retaining this orientation.  I think that there can be little argument that the community affirmatively committed to maintaining this status through the Accountability work.

From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Seun Ojedeji
Sent: Tuesday, February 14, 2017 1:43 PM
To: Greg Shatan <gregshatanipc@gmail.com>
Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org>
Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction

Sent from my LG G4
Kindly excuse brevity and typos

On Feb 14, 2017 12:29 PM, "Greg Shatan" <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote:
Seun,

You say that a "Trump travel Ban . . . compared to

if a travel Ban is placed on Turkey where ICANN has a hub. The former
would have global effects on ICANN than the latter."

Can you clarify how a travel ban into the US from a list of countries would "have global effects on ICANN" and a travel ban into Turkey from a list of countries not have a similar type of effect?  Is this just because more people will want to travel to ICANN's operations in the US than those in Turkey?

SO: It's not really because more people "want" to, it's because for ICANN it may be prudent at times to have the meeting in the US. When I say meeting, I am not just referring to the 3 global meetings alone.

Why is it a global effect on ICANN if it only concerns a small number of countries?

SO: Sometime ago I was reading an article mentioning whether I* organisations should cancel subsequent meetings in the US (even though I personally do not think it's worth it to cancel already planned Puerto Rico meeting) but imagine the global effects if such happen. Beyond that such action by US govt also cause unintended(or perhaps unnecessary) consequences/reactions. Like it won't be out of scope for an African govt who is already pissed off with .Africa[1] and second level 2 character to also indicate the ban as an exhibit to drive a point.

Just checkout how many ICANN related articles that connects to the ban has been published lately so you think similar level of response would have happened globally if the travel ban happened in Turkey? I doubt. So it's not always about the few ban countries, it's about the global reaction.

For clarity if ICANN were incorporated in Turkey and same banned happen, the global effect would have still be similar to that of the US at present. So the point is not that it may not have happened if ICANN was incorporated in Turkey (or Switzerland as Paul puts it) but the point is that it is unfair to say the effects to ICANN ORG/community in both scenarios is the same

Regards
1. Ofcourse I recognise there is not light at the end of the tunnel.

[Please note that I personally do not support the travel ban, nor do I minimize the effects it has had and continues to have on citizens of those countries.]

Thanks!

Greg

Greg Shatan
C: 917-816-6428
S: gsshatan
Phone-to-Skype: 646-845-9428
gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>

On Tue, Feb 14, 2017 at 6:17 AM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote:
Thanks Nigel, I am not asking about an overall immunity for ICANN but I am talking about specific scenario like the ones I have indicated. Maybe the right word isn't immunity.

Cheers!
Sent from my LG G4
Kindly excuse brevity and typos

On Feb 14, 2017 11:45 AM, "Nigel Roberts" <nigel@channelisles.net<mailto:nigel@channelisles.net>> wrote:
I think you miss the point about immunity.

It's means "ICANN can do what it likes and can't be sued".

On 14/02/17 09:23, Seun Ojedeji wrote:
Hi,

I am not a lawyer but it doesn't sound accurate to say that the effect
of the country of  (US) on ICANN is same with that of other
countries (including the ones hosting her regional hubs) because that is
what I think Paul may be implying here.

As a simple example is a Trump travel Ban and the OFAC stuff compared to
if a travel Ban is placed on Turkey where ICANN has a hub. The former
would have global effects on ICANN than the latter. I for one would be
glad if there can be immunity/exemption for ICANN(used in literary
terms) in such scenarios

Regards

Sent from my LG G4
Kindly excuse brevity and typos

On Feb 13, 2017 7:59 PM, "Paul Rosenzweig"
<paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>
<mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>> wrote:

    Yes, I refute the proposition because it is an alternate fact.  Or
    put another way – it is wrong.____

    __ __

       The true fact is simple – by virture of doing business in France,
    ICANN is subject to French law.  France’s privacy authorities might,
    for example, attempt to get ICANN to follow their right to be
    forgotten.  They would fail, I think, but that proposition is no
    different in kind than the idea of US antitrust jurisdiction over
    ICANN which will not change one iota if ICANN changes its
    jurisdiction of incorporation.  As I have said before, the only way
    in which place of jurisdiction matters significantly (or to use your
    words is of a “different order” is regarding law relating to
    corporate incorporation and governance.  As to that – e.g. the
    implementation of ICANN’s actual corporate governance – it would
    change significantly if ICANN moved.  But, as others have also
    noted, the corporate law of California is vital to ICANN’s current
    structure.____

    __ __

    As for your question about my professional life it is amusing –
    because that is indeed what I do for a living and I have, in fact,
    given exactly that advice to German businesses with operations in
    the United States.  I tell them that if they want to avoid American
    law (mostly law relating to cybersecurity) the only way to do so is
    to avoid having a business presence in the US.  If they want to
    forgo the market completely they can do so to avoid American law.
    But otherwise they cannot.  And, I tell them the exact same thing
    about French and Indian law as well.  In short, I do this for a
    living and yes, I say exactly the same thing to paying clients.____

    __ __

    It is not me who is “falsifying facts” Paraminder.  You are making
    assertions that have no actual basis in any law that I know of.
    Repeatedly asserting them as “facts” does not make them so____

    __ __

    Paul____

    __ __

    Paul Rosenzweig____

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

    O: +1 (202) 547-0660<tel:%2B1%20%28202%29%20547-0660> <tel:+1%20202-547-0660>____

    M: +1 (202) 329-9650<tel:%2B1%20%28202%29%20329-9650> <tel:+1%20202-329-9650>____

    VOIP: +1 (202) 738-1739<tel:%2B1%20%28202%29%20738-1739> <tel:+1%20202-738-1739>____

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    __ __

    *From:*parminder [mailto:parminder@itforchange.net<mailto:parminder@itforchange.net>
    <mailto:parminder@itforchange.net<mailto:parminder@itforchange.net>>]
    *Sent:* Sunday, February 12, 2017 12:54 AM
    *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>
    <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>>;
    ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> <mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>>
    *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction____

    __ __

    __ __

    On Saturday 11 February 2017 10:54 PM, Paul Rosenzweig wrote:____

        As we have repeatedly noted, the exact same thing is true of
        ICANN’s being subject to the laws of India, France and any other
        place it does business. ____

    Paul, and you have missed the repeated response that of course this
    is not true (and you know it) -- the implication of jurisdiction of
    incorporation of a body, and its impact on its working, is of a
    completely different order than that of the jurisdictions where it
    may merely conduct some business. Do you refute this proposition?

    Would you in your professional life advice, say, a business
    incorporated in Germany but with worldwide business footprint that
    the application of German jurisdiction and laws on it -- and the
    real life implications of such application -- is more or less the
    same as application of jurisdiction and laws of all counties where
    it may conduct any business at all? I look forward to a clear and
    unambiguous response to this. Thanks.

    If indeed we are to keep falsifying such basic facts, which everyone
    knows well, and base our positions on that, there is no way we can
    go anywhere with this sub group. We may as well close it up and let
    the rapporteur write whatever report he may want to forward. No use
    wasting time here in trying to "prove" and reprove and reprove basic
    universally known legal and political facts.

    ____

        Your persistence in arguing a strawman Paraminder puts me in
        mind of Amartya Sen.____

    A perceptive book he wrote, but also speaks of Indian humility and
    self-deprecation... Wonder why no one ever wrote "The Hegemonic
    American"...

    parminder

    ____

        ____

        Paul Rosenzweig____

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

        O: +1 (202) 547-0660<tel:%2B1%20%28202%29%20547-0660> <tel:+1%20202-547-0660>____

        M: +1 (202) 329-9650<tel:%2B1%20%28202%29%20329-9650> <tel:+1%20202-329-9650>____

        VOIP: +1 (202) 738-1739<tel:%2B1%20%28202%29%20738-1739> <tel:+1%20202-738-1739>____

        www.redbranchconsulting.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....>
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        My PGP Key:
        https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>
        <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>>____

        ____

        *From:*ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>
        <mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>>
        [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>
        <mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>>] *On Behalf Of
        *parminder
        *Sent:* Saturday, February 11, 2017 8:46 AM
        *To:* ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> <mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>>
        *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's
        jurisdiction____

        ____

        Nigel,____

        Thanks for your views. One gets faced by two kinds of arguments
        in favour of keeping the jurisdictional status quo -- which are
        mutually exclusive.____

        (1) ICANN is somehow not subject to the whole range of US law
        and executive powers, as any other US organisations is - or at
        least it is somehow felt that US law and executive power will
        never apply itself over ICANN functioning. ____

        (2) As you argue, ICANN is indeed subject to all US laws and
        powers, which might indeed be applied over it as necessary, but
        this is a good and a desirable thing. ____

        As we have no move forward at all, we must do it in stages and
        remove some arguments off the table which we can mutually agree
        to be untenable. So can we now agree that the view (1) above is
        simply untrue and naively held by those who forward it. ____

        We can now move to (2). First of all, this means that indeed US
        law and executive can impinge upon ICANN's policy implementation
        whenever it feels it valid to do so in pursuance of legitimate
        US public interest. Meaning, If ICANN makes a policy and does
        its implementation which is not in-accordance with US law or
        legitimate US executive will, they can "interfere" can cause
        those actions to be rolled back on the pain of state's coercive
        action. This can be for instance regarding how and what
        medicines and health related activities are considered ok by the
        concerned US regulator. (Similar examples can be thought of in
        practically every sector). Are you with me till here, because I
        think I am only making logical deduction over what you seem to
        agree with?____

        If so, this indeed establishes as a fact that US jurisdiction
        can, as required, impinge upon (which seen from another vantage
        is same as, interfere with) ICANN policies and policy
        implementation.____

        Which makes the entire exercise of our questionnaire seeking
        whether it can so happen rather needless. It of course can. ____

        Lets then not argue or fight over that terrain, where we have
        this agreement, about how law and executive power operates vis a
        vis organisations subject to their jurisdiction. ____

        That brings us to another terrain - that, as you argue, and
        others have here, that it is right, appropriate and needed that
        US law and legitimate executive power impinges upon ICANN
        functioning as and when required, becuase it is important to
        subject everything to the rule of law (and in your and many
        other people's views, ICANN can practically ONLY be subject to
        rule of US's law).____

        I am happy to discuss this part as long as we do not keep
        drifting back to the earlier one whereby there really seems to
        be an agreement among most of us that US law and legitimate
        executive power can indeed impinge upon or "interfere with"
        ICANN's policy or policy implementation work (even if many
        consider such interference as being good for ICANN and public
        interest) . ____
...
of the country of  (US) on ICANN is same with that of other
countries (including the ones hosting her regional hubs) because that is
what I think Paul may be implying here.
As a simple example is a Trump travel Ban and the OFAC stuff compared to
if a travel Ban is placed on Turkey where ICANN has a hub. The former
would have global effects on ICANN than the latter. I for one would be
glad if there can be immunity/exemption for ICANN(used in literary
terms) in such scenarios

Regards

Sent from my LG G4
Kindly excuse brevity and typos

On Feb 13, 2017 7:59 PM, "Paul Rosenzweig"
<paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>
<mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>> wrote:

    Yes, I refute the proposition because it is an alternate fact.  Or
    put another way – it is wrong.____

    __ __

       The true fact is simple – by virture of doing business in France,
    ICANN is subject to French law.  France’s privacy authorities might,
    for example, attempt to get ICANN to follow their right to be
    forgotten.  They would fail, I think, but that proposition is no
    different in kind than the idea of US antitrust jurisdiction over
    ICANN which will not change one iota if ICANN changes its
    jurisdiction of incorporation.  As I have said before, the only way
    in which place of jurisdiction matters significantly (or to use your
    words is of a “different order” is regarding law relating to
    corporate incorporation and governance.  As to that – e.g. the
    implementation of ICANN’s actual corporate governance – it would
    change significantly if ICANN moved.  But, as others have also
    noted, the corporate law of California is vital to ICANN’s current
    structure.____

    __ __

    As for your question about my professional life it is amusing –
    because that is indeed what I do for a living and I have, in fact,
    given exactly that advice to German businesses with operations in
    the United States.  I tell them that if they want to avoid American
    law (mostly law relating to cybersecurity) the only way to do so is
    to avoid having a business presence in the US.  If they want to
    forgo the market completely they can do so to avoid American law.
    But otherwise they cannot.  And, I tell them the exact same thing
    about French and Indian law as well.  In short, I do this for a
    living and yes, I say exactly the same thing to paying clients.____

    __ __

    It is not me who is “falsifying facts” Paraminder.  You are making
    assertions that have no actual basis in any law that I know of.
    Repeatedly asserting them as “facts” does not make them so____

    __ __

    Paul____

    __ __

    Paul Rosenzweig____

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

    O: +1 (202) 547-0660<tel:%2B1%20%28202%29%20547-0660> <tel:+1%20202-547-0660>____

    M: +1 (202) 329-9650<tel:%2B1%20%28202%29%20329-9650> <tel:+1%20202-329-9650>____

    VOIP: +1 (202) 738-1739<tel:%2B1%20%28202%29%20738-1739> <tel:+1%20202-738-1739>____

    www.redbranchconsulting.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> <http://www.redbranchconsulting.com/<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=1k6KNFdJzQIC6CkW4-cXYamlUd3hWDS-W8MchdaYxlg&e=>>____

    My PGP Key:
    https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>
    <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>>____

    __ __

    *From:*parminder [mailto:parminder@itforchange.net<mailto:parminder@itforchange.net>
    <mailto:parminder@itforchange.net<mailto:parminder@itforchange.net>>]
    *Sent:* Sunday, February 12, 2017 12:54 AM
    *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>
    <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>>;
    ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> <mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>>
    *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction____

    __ __

    __ __

    On Saturday 11 February 2017 10:54 PM, Paul Rosenzweig wrote:____

        As we have repeatedly noted, the exact same thing is true of
        ICANN’s being subject to the laws of India, France and any other
        place it does business. ____

    Paul, and you have missed the repeated response that of course this
    is not true (and you know it) -- the implication of jurisdiction of
    incorporation of a body, and its impact on its working, is of a
    completely different order than that of the jurisdictions where it
    may merely conduct some business. Do you refute this proposition?

    Would you in your professional life advice, say, a business
    incorporated in Germany but with worldwide business footprint that
    the application of German jurisdiction and laws on it -- and the
    real life implications of such application -- is more or less the
    same as application of jurisdiction and laws of all counties where
    it may conduct any business at all? I look forward to a clear and
    unambiguous response to this. Thanks.

    If indeed we are to keep falsifying such basic facts, which everyone
    knows well, and base our positions on that, there is no way we can
    go anywhere with this sub group. We may as well close it up and let
    the rapporteur write whatever report he may want to forward. No use
    wasting time here in trying to "prove" and reprove and reprove basic
    universally known legal and political facts.

    ____

        Your persistence in arguing a strawman Paraminder puts me in
        mind of Amartya Sen.____

    A perceptive book he wrote, but also speaks of Indian humility and
    self-deprecation... Wonder why no one ever wrote "The Hegemonic
    American"...

    parminder

    ____

        ____

        Paul Rosenzweig____

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

        O: +1 (202) 547-0660<tel:%2B1%20%28202%29%20547-0660> <tel:+1%20202-547-0660>____

        M: +1 (202) 329-9650<tel:%2B1%20%28202%29%20329-9650> <tel:+1%20202-329-9650>____

        VOIP: +1 (202) 738-1739<tel:%2B1%20%28202%29%20738-1739> <tel:+1%20202-738-1739>____

        www.redbranchconsulting.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....>
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        ____

        *From:*ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>
        <mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>>
        [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>
        <mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>>] *On Behalf Of
        *parminder
        *Sent:* Saturday, February 11, 2017 8:46 AM
        *To:* ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> <mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>>
        *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's
        jurisdiction____

        ____

        Nigel,____

        Thanks for your views. One gets faced by two kinds of arguments
        in favour of keeping the jurisdictional status quo -- which are
        mutually exclusive.____

        (1) ICANN is somehow not subject to the whole range of US law
        and executive powers, as any other US organisations is - or at
        least it is somehow felt that US law and executive power will
        never apply itself over ICANN functioning. ____

        (2) As you argue, ICANN is indeed subject to all US laws and
        powers, which might indeed be applied over it as necessary, but
        this is a good and a desirable thing. ____

        As we have no move forward at all, we must do it in stages and
        remove some arguments off the table which we can mutually agree
        to be untenable. So can we now agree that the view (1) above is
        simply untrue and naively held by those who forward it. ____

        We can now move to (2). First of all, this means that indeed US
        law and executive can impinge upon ICANN's policy implementation
        whenever it feels it valid to do so in pursuance of legitimate
        US public interest. Meaning, If ICANN makes a policy and does
        its implementation which is not in-accordance with US law or
        legitimate US executive will, they can "interfere" can cause
        those actions to be rolled back on the pain of state's coercive
        action. This can be for instance regarding how and what
        medicines and health related activities are considered ok by the
        concerned US regulator. (Similar examples can be thought of in
        practically every sector). Are you with me till here, because I
        think I am only making logical deduction over what you seem to
        agree with?____

        If so, this indeed establishes as a fact that US jurisdiction
        can, as required, impinge upon (which seen from another vantage
        is same as, interfere with) ICANN policies and policy
        implementation.____

        Which makes the entire exercise of our questionnaire seeking
        whether it can so happen rather needless. It of course can. ____

        Lets then not argue or fight over that terrain, where we have
        this agreement, about how law and executive power operates vis a
        vis organisations subject to their jurisdiction. ____

        That brings us to another terrain - that, as you argue, and
        others have here, that it is right, appropriate and needed that
        US law and legitimate executive power impinges upon ICANN
        functioning as and when required, becuase it is important to
        subject everything to the rule of law (and in your and many
        other people's views, ICANN can practically ONLY be subject to
        rule of US's law).____

        I am happy to discuss this part as long as we do not keep
        drifting back to the earlier one whereby there really seems to
        be an agreement among most of us that US law and legitimate
        executive power can indeed impinge upon or "interfere with"
        ICANN's policy or policy implementation work (even if many
        consider such interference as being good for ICANN and public
        interest) . ____

        Your only problem with immunity seem to come up with regard to
        criminally fraudulent activities. You give the examples of IOC
        and FIFA but I have not found they having any special criminal
        immunities. I may not have looked up well, but did they? Were
        they not finally raided by both Swiss and US authorities. On the
        other hand there are many international organisations with legal
        immunities that have been gooing great global public interest
        work without corruption. Interpol hasnt started to take money to
        make international warrants disappear, not, more humbly, the
        International Fertilizers Development Centre, immunised under
        the relevant US Act, and which enters into contracts worth
        millions every years for globally distributed projects, has been
        known to do so....

        (FIFA and IOC become corrupt because of commercial thinking
        completely overpowering public service ethics -- and if ICANN
        becomes so it will also be ore likely becuase of this reason.
        But et us not get distracted. )

        And if indeed we are so concerned about ICANN's abuse of power
        and possible frauds and corruption, we should have let a
        stronger and more agile community accountability mechanism get
        established, like the membership based one, and with lower
        thresholds of triggering community action... That is where the
        mistake was made, and can still be corrected down the line. Do
        not throw the world at the mercy of US law and executive action
        for this purpose, especially when it related to to an
        infrastructure which today underpins almost every social system.
        This is not just some sports. (No hurt intended to sports fans,
        I being one.)

        parminder

        ____

        On Saturday 11 February 2017 02:16 PM, Nigel Roberts wrote:____

            ____

                and innumerable others. In the circumstances, the real
                waiver across all
                sectors and laws would be seek immunity under the US
                International
                Organisations Immunity Act. Would you not prefer this
                route? If not, why
                so? ____

            Because I do not want ICANN to have immunity.

            I have been involved in this community since before it was
            called 'ICANN', including the gTLD-MoU and the IFWP.

            I have seen ICANN behave as an autocrat robber baron and
            deprive people of their property.

            Fortunately, we have made great strides since then.

            Accountability work, between 2003 (in the case of ccTLDs) up
            to last years' transition, as well as the fact that, both
            staff and Board now have personal trust, that was totally
            absent 15 years ago.

            But both organisations and personnnel can change.

            Institutional immunity leads to corruption. I do not want
            ICANN to become a FIFA, or IOC.

            And the recent .AFRICA case shows, the checks and balances
            of the US judicial system appear to work reasonably well (I
            personally remain uneasy about the covenant of immunity but
            I expect you have no problem with that).

            I trust this explains why some people - and I am one - may
            have a diametrically opposed view to yours when it comes to
            ICANN immunity.

            _______________________________________________
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        ____

    __ __

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_______________________________________________
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        Your only problem with immunity seem to come up with regard to
        criminally fraudulent activities. You give the examples of IOC
        and FIFA but I have not found they having any special criminal
        immunities. I may not have looked up well, but did they? Were
        they not finally raided by both Swiss and US authorities. On the
        other hand there are many international organisations with legal
        immunities that have been gooing great global public interest
        work without corruption. Interpol hasnt started to take money to
        make international warrants disappear, not, more humbly, the
        International Fertilizers Development Centre, immunised under
        the relevant US Act, and which enters into contracts worth
        millions every years for globally distributed projects, has been
        known to do so....

        (FIFA and IOC become corrupt because of commercial thinking
        completely overpowering public service ethics -- and if ICANN
        becomes so it will also be ore likely becuase of this reason.
        But et us not get distracted. )

        And if indeed we are so concerned about ICANN's abuse of power
        and possible frauds and corruption, we should have let a
        stronger and more agile community accountability mechanism get
        established, like the membership based one, and with lower
        thresholds of triggering community action... That is where the
        mistake was made, and can still be corrected down the line. Do
        not throw the world at the mercy of US law and executive action
        for this purpose, especially when it related to to an
        infrastructure which today underpins almost every social system.
        This is not just some sports. (No hurt intended to sports fans,
        I being one.)

        parminder

        ____

        On Saturday 11 February 2017 02:16 PM, Nigel Roberts wrote:____

            ____

                and innumerable others. In the circumstances, the real
                waiver across all
                sectors and laws would be seek immunity under the US
                International
                Organisations Immunity Act. Would you not prefer this
                route? If not, why
                so? ____

            Because I do not want ICANN to have immunity.

            I have been involved in this community since before it was
            called 'ICANN', including the gTLD-MoU and the IFWP.

            I have seen ICANN behave as an autocrat robber baron and
            deprive people of their property.

            Fortunately, we have made great strides since then.

            Accountability work, between 2003 (in the case of ccTLDs) up
            to last years' transition, as well as the fact that, both
            staff and Board now have personal trust, that was totally
            absent 15 years ago.

            But both organisations and personnnel can change.

            Institutional immunity leads to corruption. I do not want
            ICANN to become a FIFA, or IOC.

            And the recent .AFRICA case shows, the checks and balances
            of the US judicial system appear to work reasonably well (I
            personally remain uneasy about the covenant of immunity but
            I expect you have no problem with that).

            I trust this explains why some people - and I am one - may
            have a diametrically opposed view to yours when it comes to
            ICANN immunity.

            _______________________________________________
            Ws2-jurisdiction mailing list
            Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>>
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        ____

    __ __

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Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction

Burr, Becky