On Sunday 20 August 2017 09:24 AM, John Laprise wrote:

I appreciate the thought exercise


perhaps you wanted to say, democratic exercise, or democratic thinking and imaginary ... Nothing of consequence, my friend, ever got achieved without imagination and vision.

but the practical political reality in the US is that Congress would never pass such legislation nor would President Trump sign such a bill. Now, back to reality...


John, you actually have come to an extremely important point. Thanks. Yes, President Trump and Congress are very unlikely to pass it. And so? Is our job to second guess US government on this issue, or is it to represent global public to provide the most appropriate global governance architecture for ICANN? My question is not rhetorical, it is real. I need to know. let us be very clear about what we are, and our mandate. Are we advisers to US gov on ICANN governance, or are we representatives of the global public here? Yes, if advisers, our job is to second guess US gov's intentions and interests. But if reps of global public, it is to find the most appropriate, including democratic, governance model for ICANN, the body undertaking global governance of the global DNS. And find such models no doubt within realms of practicality, but that does not include undue subjection to any outside power.

If indeed, we think that immunity under the said US act is the best democratic governance option for ICANN, it is our job to recommend it. What happens when it is refused. Well, we as reps of global public in matters related to ICANN have other options to assert ourselves. I mean first we need to decide to assert ourselves. Some such options are touched upon in this doc, but I am happy to discuss them in greater elaboration.

(Let me undertake an indulgence in pursuance of my motto of "speaking to power", an indulgence perhaps I should not take on this lazy sunday morning, but....)

No, my friend, it is not the US congress or President Trump blocking our progress towards most appropriate, equitable and democratic solutions to a key ICANN governance issue. That problem will come later... Let me be blunt.... It is "you folks" who benefit from and derive various kinds of powers from the status quo who are blocking it  (my apologies at a personal level for this political comment, but that is the truth). It is your complacence of sitting in the US enjoying legal and political protections, and otherwise in the ICANN system deriving various advantages, that is coming in the way of what is something rather simple, straight-forward and obvious good and the right thing. And it is your lack of feeling, empathy and sense of justice with respect to other people in other parts of the world, not enjoying the protection of the US state, and benefits of the ICANN system,  that is blocking it.

The problem of congress and president Trump ( who btw is democratically elected to enforce polices that he may) will come, but that is later. Right now, that is not the problem. The problem is "we". We are not some lay people on the street to make comments of hopelessness about the future - like US gov would never allow something -- we are reps of the global public, given a very important, even historic, role to recommend and accomplish something, that which we find in the best global interest. Can we begin to take that huge responsibility seriously, and move beyond flippancy., and blocking possible progress in doing something that the global public send us here to do.

Substantively, and beyond the rhetoric, I can see no justifiable reason being given by anyone with the least democratic credentials to not explore the straight forward "immunity under the said US act" option, which is a win win for all... The current ICANN system stays exactly as it is, and people's justified apprehensions about the authority of the US over ICANN gets substantially removed. If we recommend that, we will really have done and achieved something, and can be proud to have given back something substantial to the people whom we purport to represent here.

parminder




On Sat, Aug 19, 2017, 10:41 PM parminder <parminder@itforchange.net> wrote:
On Saturday 19 August 2017 08:58 PM, Paul Rosenzweig wrote:

Dear Parminder

 

Of course we aren’t inventing the concept of host country agreements.  But those are specific agreements with specific provisions --  Are  you saying that the WIPO agreement in Switzerland is the model for what we should have in the US for ICANN?  If so, say so directly.  If not, then tell me what you think should be in the agreement.


Dear Paul, I have always been as direct as possible. Have said it several times,

as per the report that I have been citing several times,

and since we are looking here at (1) immunity for an organisation that is not a treaty organisation under international law but a US NPO, and (2) immunity from the US jurisdiction and not the Swiss,

the model under which say the International Fertilizer Development Centre, a US based NPO, has been provided immunity under the UN International Organisations Immunity Act,

in my view, will be the best one to look at.

I am not a lawyer, neither I am US based, and have limited access to info from within the US. But we need more information in the above regard, an exhortation also made by the author of the cited ICANN report. I have also sought such information earlier in this group, but to no avail. Unfortunately, it seems that access to information is not available in a neutral way to this group to function adequately to be able to fulfil its mandate, which is, I must remind, about accountability of ICANN to the global public and not just the US.

Response to your below question in a separate email.


parminder

  I am happy to stop discussing general propositions it you will – which is why I asked for specifics.  OFAC?  Yes, I understand that.  What else?





 

Paul

 

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com

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From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder
Sent: Saturday, August 19, 2017 10:56 AM
To: ws2-jurisdiction@icann.org
Subject: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN

 

 

 

On Saturday 19 August 2017 07:02 PM, Paul Rosenzweig wrote:

Exactly right Raphael.  To cite just a few examples, here are categories of what would be considered public laws in the US from which I assume nobody thinks ICANN should be exempt – criminal law; occupational health and safety law; general public zoning laws relating to urban development.   The list is just a starter ….. 

 

If I’m wrong – if you really do think that ICANN should be exempt from the criminal laws of the countries where it operates – then perhaps you should say so.  I would profoundly disagree, but at least we could discuss substance.


Dear Paul

We are not inventing host country agreements here. This isnt being proposed for the first time. There is well established set of precedents and established practices in this regard. If a WIPO employee, WIPO having judicial immunity in Switzerland, commits a murder in Geneva, or even a financial fraud, everyone knows what to do and what will happen. Lets come out of this contesting elementary and well-established facts.



 

And to be clear I assume, as well, that nobody thinks that the ICANN officials and institutions in Istanbul and Singapore and wherever else ICANN has offices should be exempt from Turkish or Singaporean law.  I certainly don’t. 


Yes, not in criminal matters. And as I mentioned in an earlier email, it is possible for ICANN to also seek immunity in these jurisdictions as well. But that is not so important, these offices do not make and implement policy. Respective jurisdictions cannot force them to change ICANN's global policies. Even ifthey foolishly  get into trying such a thing, ICANN can simply close down its office there and shift to another place, without affecting ICANN global work in any way. But not with US gov's actions or orders against ICANN. That is the difference.

parminder

 

Paul

 

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com

O: +1 (202) 547-0660

M: +1 (202) 329-9650

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From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Raphaël BEAUREGARD-LACROIX
Sent: Saturday, August 19, 2017 8:46 AM
To: Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br>
Cc: ws2-jurisdiction@icann.org
Subject: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN

 

Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on. 

 

Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN less accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example) 

 

 

2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br>:

Dear All,

 

It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs).

 

So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction).

 

Best,

 

Thiago

 

 

 

De: ws2-jurisdiction-bounces@icann.org [ws2-jurisdiction-bounces@icann.org] em nome de parminder [parminder@itforchange.net]
Enviado: sábado, 19 de agosto de 2017 3:21
Para: ws2-jurisdiction@icann.org
Assunto: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN

Lest my response be mis-interpreted, I should clarify that:

The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here).

In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us.

Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go...

parminder

 

On Saturday 19 August 2017 09:56 AM, parminder wrote:

 

 

On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote:

Dear Parminder

 

Can you please provide a list?  That is, can you specify which US laws you wish immunity from under your tailored approach?  And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries? 


Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement..
parminder



 

Paul

 

Paul Rosenzweig

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From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder
Sent: Friday, August 18, 2017 2:20 AM
To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr>
Cc: ws2-jurisdiction@icann.org
Subject: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN

 

Now for the secons point raised by you.

 

On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote:

 

 

2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this. 

 

 

I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond

"This immunity should be tailored/customised in a manner that ICANN still remains subject to non profit law of the state of California under which it is registered, and its organisational processes function, and other such US laws and institutions that are strictly required for ICANN to be able to satisfactorily carry out its organisational, policy and technical functions (an assessment with respect to which should be undertaken asap)."


Does this not already answer your point? And I also did give a link to an ICANN commissioned report which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act.
 
parminder



 

2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net>:

Issue:

Various branches and agencies of the United States of America - from judicial and legislative to executive, including its many regulatory agencies - have exclusive (like no other country's) direct legal remit and power over ICANN, as a US non-profit organisation, with respect to practically every aspect that can conceivably be affected by state power (their range is so enormous that it is vain to begin listing them). These agencies/ y can and do exercise them at any time in pursuance of US law and policies, that have the primary purpose to uphold US public interest and US constitution. Many examples of such powers and their possible use have been given in various public submissions to this group, including this one , and also this. Since ICANN is supposed to make policies and implement them with regard to the global DNS in the global public interest and not just US public interest, such unilateral availability and use of legal state power with one country, the US, over ICANN is untenable, and goes against basic principles of democracy including of "no legislation/ policy without representation". These principles are recognised by UN instruments as human rights, and most countries today including the US are built over them.

Proposed solution:

ICANN be granted immunity under the International Organisations Immunities Act of the US. This immunity should be tailored/customised in a manner that ICANN still remains subject to non profit law of the state of California under which it is registered, and its organisational processes function, and other such US laws and institutions that are strictly required for ICANN to be able to satisfactorily carry out its organisational, policy and technical functions (an assessment with respect to which should be undertaken asap).

 

Additional notes:

If I may add, this has been "THE" jurisdiction question since the WSIS days if not earlier ( actually since the time ICANN was formed). Whether or not we are able to agree to recommending any solution to this jurisdiction question, it will be an unacceptable travesty of facts and history if this group does not accept this as an important, if not "THE", jurisdiction question in relation to ICANN.

Whether or not this group is able to contribute to global public interest by making any positive progress on the question of ICANN's jurisdiction, following the principles of good governance and democracy, let it not regress and actually serve to obfuscate what is seen and known as the "ICANN's jurisdiction" question by everyone, by the global public at large. (For instance, in ICANN's own internal discussions like when the ICANN chair commissioned this report on the jurisdiction issue).

If we can accept that this is a key jurisdiction (even if not "THE") question, but are not able to agree on a proposed solution, let us just write that in our report. But let us not contribute to alt-truth, a very dangerous phenomenon that is often spoke of nowadays. Both as a group, and individually as responsible persons - given an important global political responsibility -- we owe at least that much to ourselves.

As for myself, and the groups that I work with, we will stand resolutely till the end in the path of any such synthesis of artificial reality - when a global group tasked to address the decades old democratic question of unilateral jurisdiction of one country over the global governance body, ICANN, comes up with a report that asserts that this is not a jurisdiction issue at all, or at least not an important one. 

parminder

 

 

 

 

 


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