Translation: “No I cannot.”
From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder
Sent: Wednesday, August 30, 2017 7:54 AM
To: ws2-jurisdiction@icann.org
Subject: Re: [Ws2-jurisdiction] [EXTERNAL] Re: Issue: US's courts' judicial writ over all aspects of ICANN
On Tuesday 29 August 2017 12:19 AM, Burr, Becky via Ws2-jurisdiction wrote:
I don’t think that ICANN’s decision to comply with applicable law – in the US or in any country in which it operates – is the product of a chilling effect.
Yes, it is general acceptance of law, if not the fear of it.... When the law is illegitimate, as when one country's law is applicable wrongly to a global gov process, the same, otherwise legitimate fear of law, is called "chilling effect". Both legitimate fear of law and chilling effect do the same thing, it stops certain behaviour and encourages others.
Can you give an example where you believe ICANN has refrained from the "legitimate exercise of natural and legal rights by the threat of legal sanction”?
The whole meaning of chilling effect is that is it generalised, not obvious and apparent, but strongly there. For instance, can you provide me an instance of when a person "did not" undertake certain road behaviour because of existence of traffic laws... Such negatives are difficult to instantiate, and are supposed to be inferred...
parminder
J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer
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Issue
As a US based entity, ICANN is subject to full range of US laws. Almost any US court can take up for its judicial consideration whether ICANN works within each of such applicable law or not. This brings up a high likelihood that any time in the future ICANN will have to change under US courts' directions its actions taken in pursuance of its global governance function of developing global DNS related policies and implementing them. This is obviously undemocratic and inappropriate that one country's law and its court decide what a global governance body like ICANN will or will not do.
Further, it is not only a matter of a court actually finding legal fault with an ICANN action and forcing to change it. Knowing that ICANN is subject to the full range of US public law, ICANN would always take care to keep its actions with them (as it has no doubt done till now). This is what is called as the "chilling effect". This phenomenon which is already in existence with ICANN's actions, since its inception, is undemocratic and illegitimate from the point of view of the non US people, since they did not participate in making the US laws, and the laws they may have actually developed may even be in contradiction to US law on a particular subject. This phenomenon therefore leads to denial of democratic rights to non US citizens.
Solution:
Any given court would not heed to any pleadings about ICANN being special as a global governance organisation, and should be treated as such. Neither is the court legally supposed to do, under the US constitution and laws. The only solution there is a general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law.
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