On Sunday 20 August 2017 01:14 PM,
Nigel Roberts wrote:
That's
for background information.
As you know, all litigation requires huge resources (both
financial and human), and that's no different whether it's ICANN
or anyone else as Defendant.
But providing immunity would allow ICANN "to do whatever it
likes".
This is simply not true, it a falsehood and Id appeal to you to stop
propagating it. Apart from that we should have faith in ICANN's own
governance model, I have argued repeatedly that immunity for ICANN
can be tailored precisely so that it largely covers its core
functions and not just everything that ICANN does. Again referring
to
this ICANN report where the concept of functional immunity
("immunity concerns activities immediately or directly related to
the performance of tasks entrusted to the organization"), immunity
waivers, etc are discussed in detail, although in a somewhat
different context.
The report shows how immunity can be tailored to cover largely just
the core functions of an organisation, and the organisation can
itself waive its immunities in many regards.... So, please count
your problem areas, and we can seek immunity waiver in those areas,
financial frauds, labor laws, which ones?
And if it is your case that ICANN's own governance system is
inadequate to even performing its core functions properly, and there
is a risk that it could go rouge even with respect to them, and
therefore it needs parental guidance/ control from the state of US,
that precisely is my problem, and not acceptable to me and most of
the world. Although I remain amazedat your description , as an ICANN
insider, of the state of ICANN governance and responsibility. It is
quote worthy.
One would have hoped that in all these years ICANN had evolved a
governance and accountability system that did not allow it "to do
whatever it likes" but it seems that your testimony is that this is
not the case, and its need oversight by the US state to check its
abuse of powers. Pity!
parminder
Not on my watch.
On 20/08/17 07:42, parminder wrote:
Nigel
Your principal contention is that ICANN's own governance
processes are (by your account, pathetically) inadequate to
ensure against rogue behaviour. And yes you have been consistent
in making this argument.
That surprises me coming for an ICANN insider. One would well
ask, why when a UN body, OECD, WIPO, WTO, and many non profits
enjoying immunities like I have given examples of can resist
becoming rogue cant ICANN too do so? Is all the charade of an
unprecedented and exemplary multistakeholder mode of governance
of ICANN really not working, neither is it workable? And when
you guys were presented with the option of a more accountable
membership based model you guys rejected it last year. Why so?
If ICANN's own governance structures are not adequate and
proper, work on them, rather than working against, like in
rejecting the membership model. Dont seek tutelage of
undemocratic powers. If indeed you cant work without oversight,
lets devise a good democratic method of oversight which is
representative of the whole world, and not just that already
most powerful of the countries, the US. No, this is hegemony,
this is abject surrender and subjection. This is no way to
conduct a global political discourse. Goes back to the nice old
adage: you cant have your cake and eat it -- celebrate ICANN as
a world beating governance model, and also claim, no it is not
adequate to stop ICANN from going rogue, and needs parental
control. Choose your side!
Parminder
PS: BTW, I dont really understand the below case study you often
hint at.. It seems that the company went broke bec it could not
bring a suit against ICANN, did not have the resources etc to do
so... But then, I dont see what has changed now, and how would
it be any better now. Please do be very clear what case are you
making.
On Sunday 20 August 2017 11:51 AM, Nigel Roberts wrote:
On 20/08/17 04:09, parminder wrote:
>> . And don't you think it would then make ICANN /less
/accountable?
> Maybe less accountable to US public, but more accountable
to the global
Well, our organisation is not a part of the US public, but the
global.
Nonetheless we strongly think that immunity would make ICANN
less accountable to the global public interest. So we
fundamentally disagree.
Any form of immunity would once again mean ICANN Board and/or
staff would return to the approach of the early 2000s when (to
use a phrase in common use among a number of my colleagues in
the ccTLD world) "they do whatever they like".
And I have personal knowledge of such things: one company I
was involved in the very early days of the Internet was
directly and most seriously affected (the company no longer
exists, pretty much as a result) by ICANN acting (we would
have said) without any proper legal basis in US law. They
were, in fact, at the behest of a **non**US (or "foreign")
governmental entity.
At that time ICANN was partially "protected" by being, in
effect a state actor (i.e. ICANN merely "recommended" certain
actions to another party, who then acted under US Government
contract). The affected party was a start-up with limited
resources to bring suit anyway, irrespective of the
Governmental connextion and the company consequently had to
close down.
Personally I welcome the change to ICANN becoming a purely
private body (something I've been working for since 1999), and
would oppose any proposals or suggestion to immunise it.
But you fail to take this reasoned, and reasonable, view into
account when you repeat your clamour for ICANN to be given one
or more "get- out-of-gaol-free cards".
On 20/08/17 04:09, parminder wrote:
. And don't you think it would then
make ICANN /less /accountable?
Maybe less accountable to US public, but more accountable to
the global
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