Kavouss

You seem to think ICANN has some form of statutory immunity.

It doesn't.

It's not subject to ius publicum simply  because it is not a state actor.  (Public law being understood to be the branch of law that governs relationships with state actors). Post-transition it no longer even has the residual formalism of the contract with the Government for IANA.

"Ius publicum is Latin for public law. Public law regulated the relationships of the government to its citizens, including taxation, while ius privatum (private law), based upon property and contract, concerned relations between individuals. The public/private law dichotomy is a structural core of roman law and all modern western legal systems. Public law will only include some areas of private law close to the end of the Roman state. Ius publicum was used also to describe obligatory legal regulations, such as ius cogens, which is now a term used in public international law meaning basic rules which cannot (or should not) be broken, or contracted out of. Regulations that can be changed are called today ius dispositivum, and they are used when party shares something and are not in opposition."

"Ius publicum is the Latin for public law. It is to protect the interests of the Roman state. Ius publicum was also used to describe obligatory legal regulations, such as “ius cogens or jus cogens”, which is a term in public international law that refers to basic rules which cannot be broken."

Nigel

PS: For the sake of avoiding argument about wider meaning of 'public law', ICANN, of course, remains subject to the full panoply of state and Federal criminal law .. but that applies to everyone, all the time, anyway.


On 30/11/16 15:18, Arasteh wrote:

Dear All,
I fully support issues raised by Parminder,Pedro and Avri to a) expand
questions, to ask the potential difficulties that US jurisdiction
continue to apply and adding a need for additional jurisdiction as well
as to properly address the currently ICANN immunity to Public Law as
exempted by US Immunity Acts
More over any such questions to outside need to be approved by CCWG
Regards
Kavouss

Sent from my iPhone

On 28 Nov 2016, at 22:07, Pedro Ivo Ferraz da Silva
<pedro.ivo@itamaraty.gov.br <mailto:pedro.ivo@itamaraty.gov.br>> wrote:

Dear subgroup colleagues,



I would like to support Parminder's rewritten question below. I
believe it perfectly complies with the general requirement of a
evidence based approach and it complements the two original questions
since it introduces the element of future likelihood.

Our group should not only make recommendations based on
problems/issues identified in the past, but also on perceived risks
and threats that the current jurisdictional arrangement entails.



I also support Mike Rodenbaugh's suggestion to broaden the scope of
the questions. I think we should welcome the input of any stakeholder
that may have facts and genuine (well-founded) issues to present.



Finally, in order to eliminate the possibility of confusion, I would
support dividing the document in two sessions: 1. Fact solicitation/
2. Perceived risks



Regards,



Secretário Pedro Ivo Ferraz da Silva

Divisão da Sociedade da Informação (DI)

Ministério das Relações Exteriores - Brasil

T: + 55 61 2030-6609



Secretary Pedro Ivo Ferraz da Silva

Division of Information Society (DI)

Ministry of External Relations - Brazil

T: + 55 61 2030-6609





*De:*ws2-jurisdiction-bounces@icann.org
<mailto:ws2-jurisdiction-bounces@icann.org>
[mailto:ws2-jurisdiction-bounces@icann.org] *Em nome de *parminder
*Enviada em:* domingo, 27 de novembro de 2016 04:34
*Para:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>
*Assunto:* Re: [Ws2-jurisdiction] first draft of fact solicitation
questions







On Saturday 26 November 2016 08:23 PM, avri doria wrote:

    Hi,



    I am among those who would like to see a question included along the

    lines Parminder suggests. It should, however, be made by specific

    reference to existing laws that could be used to interfere with ICANN's

    ability to provide service to customers in other countries.


I think that Avri's proposal would be a good way to go about it, as
long as we do not the circumscribe the inquiry too much. I would
prefer a general question, plus a specific component, like

What do you think are the problems, if any, with continued
jurisdiction of the US state over ICANN, as a US non-profit? Please
justify your response with appropriate examples, analysis, etc.
Especially, please indicate if there are existing and past instances
that highlight such problems. Also, in terms of future likelihood,
please mention specific institutions/ laws etc of the US state that
could be used to interfere with ICANN's ability to provide global
governance services to all people of the world, including in non US
countries.

(Pl note that I have replaced the last part on services to customers
in other countries to global gov services to all people.)



While I strongly support keeping the incorporation in CA in the US
because the yet to tested accountability process depends on that,


I am happy to support a separate exercise seeking expert opinion on
whether accountability process does or does not pertain to private law
which can choose its own jurisdiction of adjudication (as most private
contracts can), irrespective of whether ICANN is subject to US public
laws or not, as having immunity from them, whether on basis of an
international law incorporation of US state granted immunity under the
mentioned immunity laws of the US. In this manner, to ascertain
whether ICANN's new accountability mechanism can or cannot still be
adjudicated upon by Californian law/ courts, on the basis of making
the necessary provision in ICANN's bylaws.


 I also
support an effort to look for immunity from laws that affect ICANN
ability to serve clients internationally - be they governments,
companies or individuals.  This immunity should be restricted to ICANN
performance of its mission in relation to international entities and
_not_ relate to contract law, labor law or local ordinances on garbage
pickup.


Of course, that is exactly what is sought. And that is possible in my
view to do with immunity under the US immunity provisions.

I do not think that this immunity can be gained in the WS2 timeframe,
but I do believe that WS2 could initiate yet another CCWG effort to work
on that, if the consensus of the group were to do so.

The purpose of the WS2 is to make recommendations and for ICANN to
begin action on that basis. That can be done in a few months, if
agreed to.. It is not about necessarily completing the process within
WS2 time frame. If WS2 does not give this rec, and passes it on to
WS3, the same problem will arise; if we would not have begun working
on it, immunity cannot be gained within any WS# time period as well,
which then becomes an infinite process .....

Let us be very clear; if we are working on immunity from US under
relevant current provisions of US law, we can only recommend, as the
wish of the world community. It if of course for the US state to act
on it or not. But I would find it extremely strange for us not to
arrive at a rec which in our view if what preserves the global public
interest best, and is quite possible/ practical to do, just because we
begin second guessing whether US state will actually do it, and if so,
in what time frame. That I do not think if the job of this group or of
CCWG as a whole.


But first we need more of the background information, the so-called
facts. We have to remember that with NTIA oversight, the application of
some laws may have been different than it might be going forward.  We
need to understand whether that is the case or not, and whether there
are laws that could now be applied to ICANN's activities that were not
applied before.


Yes I agree. This is a kind of investigation that is needed.
Meanwhile, let me add, and I think this is what Avri is already
alluding to, as now being not under a US gov contract/ oversight,
ICANN in fact , in one way, may be more exposed to the full power of
all laws and institutions of the US state than before. It is now just
another private organisation.

parminder



avri



On 26-Nov-16 05:08, parminder wrote:







    On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:



        Sorry, Parminder, I see this as a request for opinions, not facts.

        The whole point of this exercise is to gain specific factual cases

        that show actual issues, not to provide people with an excuse to

        complain about what the “think are the problems.” I would reject

        adding such a question to the list





     Milton, you probably mean, you are against adding such a question :).

    I dont see you have any authority to reject anything any more than I

    have to reject your original formulation.



    Was not the community accountability mechanism instituted just on the

    basis of "what people think are the problems"? I saw no efforts to

    gather facts with surveys like



    "1.       Are you aware of any instance in which anyone's business,

    privacy, or ability to use or purchase DNS-related services, has been

    affected by absence of a community accountability mechanism ?



    If any such known 'facts' exist I am unaware of them and will like to

    know.



    In case of the question of ICANN's jurisdiction of incorporation

    analytical facts are rather more evident, as raised in the civil

    society statement.



    The process we employ can lead towards certain kind of outcomes rather

    than others. And I see this particular process being aimed at

    foreclosing the jurisdiction of incorporation question. This is fact

    the "application of public laws question" because immunity from such

    application can be obtained even without changing ICANN's place of

    jurisdiction.



    Meaning ICANN can stay incorporated as US non profit in California,

    and it exempted from application form various public laws as per the

    US immunity act that I cited. I also said that, as far as I can

    understand, it is possible to keep the private disputes arising from

    ICANN's organisational system, including those about enforcement of

    community powers, to be subject to US/ Californian law, strictly only

    for such dispute resolution as per ICANN bylaws. We need to hear from

    this group why this is not possible or not preferred...



    parminder









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

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

        *Sent:* Wednesday, November 23, 2016 11:54 PM

        *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>

        *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation

        questions







        I will like to add a general question to the below:



        What do you think are the problems, if any, with continued

        jurisdiction of the US state over ICANN, as a US non-profit? Please

        justify your response with appropriate examples, analysis, etc.

        Especially, if there are existing and past instances that highlight

        such problems please indicate them.



        parminder







        On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:



            These seem well-stated, except perhaps they should not be looking

            only for personal experience, but broaden the request to seek any

            experience the responder is aware of?  So I suggest something like:







            1.       Are you aware of any instance in which anyone's

            business, privacy, or ability to use or purchase DNS-related

            services, has been affected by ICANN's jurisdiction in any way?



            If the answer is Yes, please describe specific cases or

            incidents, including the date, the parties involved, and links to

            any relevant documents.



            2.       Are you aware of any instance in which ICANN's

            jurisdiction affected any dispute resolution process or

            litigation related to domain names?



            If the answer is Yes, please describe specific cases or

            incidents, including the date, the parties involved, and links to

            any relevant documents.













            Mike Rodenbaugh



            RODENBAUGH LAW



            tel/fax:  +1.415.738.8087



            http://rodenbaugh.com







            On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L

            <milton@gatech.edu <mailto:milton@gatech.edu> <mailto:milton@gatech.edu> <mailto:milton@gatech.edu>> wrote:



                CW and I have agreed on the following draft:











                *Request for stakeholder input on jurisdiction issues*







                The Jurisdiction subgroup of the CCWG Accountability is

                asking for the community to provide factual input on the

                following questions:







                1.       Has your business, your privacy or your ability to

                use or purchase DNS-related services, been affected by

                ICANN's jurisdiction in any way?



                If the answer is Yes, please describe specific cases or

                incidents, including the date, the parties involved, and

                links to any relevant documents.







                2.       Has ICANN's jurisdiction affected any dispute

                resolution process or litigation related to domain names you

                have been involved in?



                If the answer is Yes, please describe specific cases or

                incidents, including the date, the parties involved, and

                links to any relevant documents.















                Dr. Milton L. Mueller



                Professor, School of Public Policy



                Georgia Institute of Technology













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