All, Here is a blog post on ICANN's jurisdiction and sanctions. http://www.internetgovernance.org/2017/01/13/icanns-jurisdiction-sanctions-a... I have raised some of the issues before but the blog post is more consolidated. Hope it is useful for the work of this group. Best Farzaneh
Thanks, Farzaneh! Jorge ________________________________ Von: farzaneh badii <farzaneh.badii@gmail.com> Datum: 20. Januar 2017 um 22:28:57 MEZ An: ws2-jurisdiction@icann.org <ws2-jurisdiction@icann.org> Betreff: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction All, Here is a blog post on ICANN's jurisdiction and sanctions. http://www.internetgovernance.org/2017/01/13/icanns-jurisdiction-sanctions-a... I have raised some of the issues before but the blog post is more consolidated. Hope it is useful for the work of this group. Best Farzaneh
On Saturday 21 January 2017 02:58 AM, farzaneh badii wrote:
All,
Here is a blog post on ICANN's jurisdiction and sanctions. http://www.internetgovernance.org/2017/01/13/icanns-jurisdiction-sanctions-a...
I have raised some of the issues before but the blog post is more consolidated. Hope it is useful for the work of this group.
Dear Farzaneh, Thanks for this meticulous and useful work. I have two comments to offer. Firstly, OFAC are just one kinds of sanctions that outside entities may be faced with. There could be other kinds related to commercial issues, like intellectual property, that businesses of other countries can face in the US, whether arising from a court order or that of an executive/ regulatory agency. Here is an example <http://www.business-standard.com/article/companies/dutch-customs-seize-india...> of an EU government seizing, on US request, generic drugs being exported from India to Brazil. While this dispute is at the WTO, there is no question that if a US organisation (including non profit) were in any way helping or facilitating such a trade between India and US it will be forced to withdraw help/ facilitation by a US court or executive agency. Lets now assume that the hypothetical Indian exporter had a gTLD .genericdrugs which domain space was employed inter alia to facilitate its global business. The US law, through courts or executive agencies, would easily come in to disable it if it can - and it indeed can through its jurisdictional oversight over ICANN. Now we come to the crucial part of what are the solutions that we may have. You suggest that ICANN gets some kind of a general OFAC waiver. Firstly, as described above there are many other ways and basis for interference by the US government with the DNS beyond OFAC . Therefore we will need to get intellectual property violation waiver, lottery activity waiver, 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? Secondly, no waiver is permanent, as we can very well judge from the Trump's administration's various activities. US is a democracy, and people have a right to change their governments, and the government have the right to change policies and laws. That would happen all the time. And we must act as if changes will happen rather than that they wont. Yes, even immunity under the mentioned US Act can be rolled back, and therefore international law and incorporation is the only real solution. However, to withdraw statutory immunity is so much more difficult. Plus there would be time, if this is attempted, for ICANN to even seek to make "alternative arrangements" outside the US. parminder
Best
Farzaneh
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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.
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.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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. Your persistence in arguing a strawman Paraminder puts me in mind of Amartya Sen. Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: 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 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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-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>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:*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 *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.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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 <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: parminder [mailto:parminder@itforchange.net] Sent: Sunday, February 12, 2017 12:54 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; 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 <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: 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> 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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
On the Right to be Forgotten issue, this may be of interest: https://www.theguardian.com/technology/2016/feb/11/google-extend-right-to-be... Asking only for information, and not reflecting any views of the Board - but is the question of immunity within scope? We just spent several years and many millions of dollars agreeing on an accountability mechanism that ultimately relies on the authority of a court to enforce the results of an IRP or the exercise of a community power. From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Monday, February 13, 2017 1:59 PM To: 'parminder' <parminder@itforchange.net>; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction 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> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> 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=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=jVbio65R2RgPLnm2aEg_6Nf9rv5aZjPbmiIko1e7Zr4&s=o-4zgaXZNOFUO08Jqh52pS-lmobR0A-B4lhaTpLrVZk&e=> From: parminder [mailto:parminder@itforchange.net] Sent: Sunday, February 12, 2017 12:54 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>; 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> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> 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=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=jVbio65R2RgPLnm2aEg_6Nf9rv5aZjPbmiIko1e7Zr4&s=o-4zgaXZNOFUO08Jqh52pS-lmobR0A-B4lhaTpLrVZk&e=> From: 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> 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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=jVbio65R2RgPLnm2aEg_6Nf9rv5aZjPbmiIko1e7Zr4&s=Y9z4KT24YTOhb3hxaFgBh60uhNl2BPZN22qWcJ-86es&e=>
I agree with the point Becky makes about recent efforts to shore up ICANN's accountability mechanisms at considerable cost and community effort. Rather than guess about examples of what might, or might not, happen in the future I believe we should examine how ICANN is or is not now accountable by looking for obstacles to accountability that may have been experienced in the past 19 years. We can then ask whether our recent Work Stream One exercise in revamping accountability measures has addressed any material concerns. Until we encounter an accountability problem that is (1) significant, (2) unfixable in present jurisdiction, but (3) fixable in another jurisdiction (without creating other significant problem(s)) I suggest we take advantage of the accountability enforcement tools we just designed. Best regards, David David McAuley International Policy Manager Verisign Inc. 703-948-4154 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Burr, Becky Sent: Monday, February 13, 2017 4:54 PM To: Paul Rosenzweig; 'parminder'; ws2-jurisdiction@icann.org Subject: [EXTERNAL] Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction On the Right to be Forgotten issue, this may be of interest: https://www.theguardian.com/technology/2016/feb/11/google-extend-right-to-be... Asking only for information, and not reflecting any views of the Board - but is the question of immunity within scope? We just spent several years and many millions of dollars agreeing on an accountability mechanism that ultimately relies on the authority of a court to enforce the results of an IRP or the exercise of a community power. From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Monday, February 13, 2017 1:59 PM To: 'parminder' <parminder@itforchange.net<mailto:parminder@itforchange.net>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction 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> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> 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=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=jVbio65R2RgPLnm2aEg_6Nf9rv5aZjPbmiIko1e7Zr4&s=o-4zgaXZNOFUO08Jqh52pS-lmobR0A-B4lhaTpLrVZk&e=> From: parminder [mailto:parminder@itforchange.net] Sent: Sunday, February 12, 2017 12:54 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>; 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> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> 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=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=jVbio65R2RgPLnm2aEg_6Nf9rv5aZjPbmiIko1e7Zr4&s=o-4zgaXZNOFUO08Jqh52pS-lmobR0A-B4lhaTpLrVZk&e=> From: 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> 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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=jVbio65R2RgPLnm2aEg_6Nf9rv5aZjPbmiIko1e7Zr4&s=Y9z4KT24YTOhb3hxaFgBh60uhNl2BPZN22qWcJ-86es&e=>
On Tuesday 14 February 2017 03:23 AM, Burr, Becky wrote:
On the Right to be Forgotten issue, this may be of interest: https://www.theguardian.com/technology/2016/feb/11/google-extend-right-to-be...
Asking only for information, and not reflecting any views of the Board – but is the question of immunity within scope? We just spent several years and many millions of dollars agreeing on an accountability mechanism that ultimately relies on the authority of a court to enforce the results of an IRP or the exercise of a community power.
Becky, There are other responses to be given to a few issues and postings but this is confined to a very narrow and clear point: were you and others not around when, at the start of the transition process many asked for the jurisdiction to be taken up first, front and centre but it was argued by many and "decided" that work stream 1 will only take up issues that must be decided before and for the IANA transition to take place, and that other issues can be dealt by work stream 2, and, further, that the jurisdiction issue fits the description of issues for the work-stream 2, it being not essential to IANA transition and setting up new IANA and community accountability arrangements. With this precise argument, the jurisdiction issue was force-postponed to works stream 2 over the protests of those who wanted to sort it our first. What does one now make of the same people saying that jurisdiction issue should in fact have been sorted out before the new IANA and community accountability mechanisms were decided, and now it is too late to do so? Please clarify. Thanks. Best regards, parminder
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Paul Rosenzweig *Sent:* Monday, February 13, 2017 1:59 PM *To:* 'parminder' <parminder@itforchange.net>; ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
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
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*From:*parminder [mailto:parminder@itforchange.net] *Sent:* Sunday, February 12, 2017 12:54 AM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>>; 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
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*From:*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> *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.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...>
Again, speaking only for myself, my question regarding scope was about immunity, not jurisdiction. They are not the same. The existence of privileges and immunities for international organizations is not jurisdiction dependent - many jurisdictions (including the US) offer such protections. My point here was that the question of immunities was indeed raised and rejected in WS1. ( In fact, this has come up from time to time since Paul Twomey first brought up the Fertilizer Institute example. My thoughts on this are fairly well documented ... ) From: parminder [mailto:parminder@itforchange.net] Sent: Tuesday, February 14, 2017 11:43 AM To: Burr, Becky <Becky.Burr@neustar.biz>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction On Tuesday 14 February 2017 03:23 AM, Burr, Becky wrote: On the Right to be Forgotten issue, this may be of interest: https://www.theguardian.com/technology/2016/feb/11/google-extend-right-to-be-forgotten-googlecom<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.theguardian.com_technology_2016_feb_11_google-2Dextend-2Dright-2Dto-2Dbe-2Dforgotten-2Dgooglecom&d=DwMD-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=W-ZdUse-7oVFU2TsNxqVInu-QB6EqIRCQ7nK7TD8fFE&s=ASSQppCDbqp5eA6x-8N_LM9k2eJlnKyrAWW00mcIZ5o&e=> Asking only for information, and not reflecting any views of the Board - but is the question of immunity within scope? We just spent several years and many millions of dollars agreeing on an accountability mechanism that ultimately relies on the authority of a court to enforce the results of an IRP or the exercise of a community power. Becky, There are other responses to be given to a few issues and postings but this is confined to a very narrow and clear point: were you and others not around when, at the start of the transition process many asked for the jurisdiction to be taken up first, front and centre but it was argued by many and "decided" that work stream 1 will only take up issues that must be decided before and for the IANA transition to take place, and that other issues can be dealt by work stream 2, and, further, that the jurisdiction issue fits the description of issues for the work-stream 2, it being not essential to IANA transition and setting up new IANA and community accountability arrangements. With this precise argument, the jurisdiction issue was force-postponed to works stream 2 over the protests of those who wanted to sort it our first. What does one now make of the same people saying that jurisdiction issue should in fact have been sorted out before the new IANA and community accountability mechanisms were decided, and now it is too late to do so? Please clarify. Thanks. Best regards, parminder From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Monday, February 13, 2017 1:59 PM To: 'parminder' <parminder@itforchange.net><mailto:parminder@itforchange.net>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction 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> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> 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=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=jVbio65R2RgPLnm2aEg_6Nf9rv5aZjPbmiIko1e7Zr4&s=o-4zgaXZNOFUO08Jqh52pS-lmobR0A-B4lhaTpLrVZk&e=> From: parminder [mailto:parminder@itforchange.net] Sent: Sunday, February 12, 2017 12:54 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>; 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> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> 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=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=jVbio65R2RgPLnm2aEg_6Nf9rv5aZjPbmiIko1e7Zr4&s=o-4zgaXZNOFUO08Jqh52pS-lmobR0A-B4lhaTpLrVZk&e=> From: 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> 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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=jVbio65R2RgPLnm2aEg_6Nf9rv5aZjPbmiIko1e7Zr4&s=Y9z4KT24YTOhb3hxaFgBh60uhNl2BPZN22qWcJ-86es&e=>
On Tuesday 14 February 2017 10:23 PM, Burr, Becky wrote:
Again, speaking only for myself, my question regarding scope was about immunity, not jurisdiction. They are not the same. The existence of privileges and immunities for international organizations is not jurisdiction dependent – many jurisdictions (including the US) offer such protections. My point here was that the question of immunities was indeed raised and rejected in WS1. ( In fact, this has come up from time to time since Paul Twomey first brought up the Fertilizer Institute example. My thoughts on this are fairly well documented … )
Thanks for your explanation, Becky.... But do not all the problems that you list about enforcing new accountability mechanism apply as much to change of jurisdiction as obtaining immunity under US jurisdiction. In fact I understand getting immunity under the relevant US Act as a diluter form of exit from US jurisdiction or change in jurisdiction. Although I do not want to distract from the standalone point about how so many people (whether or not you, becky) who force-postponed the jurisdiction issue to work stream2 now argue that it should have been dealt in works stream 1, if at all, let me also observe that: The fact is that it is possible to preserve the accountability mechanism as a matter of private law, and with a choice of law/ venue for it being made as California law, even with obtaining immunity under the cited US Act... We have given examples of other US organisations -- like the fertilizer one you mention -- that continue to be US non profits even as they have gained immunity under this US Act. Why dont we first legally explore this option rather than just rejecting it out of hand every time. Millions of dollars have been spent on legal fees on the transition, why cant we spend a little more money to explore this issue. I have asked for it many times before on this list... parminder
*From:*parminder [mailto:parminder@itforchange.net] *Sent:* Tuesday, February 14, 2017 11:43 AM *To:* Burr, Becky <Becky.Burr@neustar.biz>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
On Tuesday 14 February 2017 03:23 AM, Burr, Becky wrote:
On the Right to be Forgotten issue, this may be of interest: https://www.theguardian.com/technology/2016/feb/11/google-extend-right-to-be... <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.theguardian.com_tec...>
Asking only for information, and not reflecting any views of the Board – but is the question of immunity within scope? We just spent several years and many millions of dollars agreeing on an accountability mechanism that ultimately relies on the authority of a court to enforce the results of an IRP or the exercise of a community power.
Becky,
There are other responses to be given to a few issues and postings but this is confined to a very narrow and clear point: were you and others not around when, at the start of the transition process many asked for the jurisdiction to be taken up first, front and centre but it was argued by many and "decided" that work stream 1 will only take up issues that must be decided before and for the IANA transition to take place, and that other issues can be dealt by work stream 2, and, further, that the jurisdiction issue fits the description of issues for the work-stream 2, it being not essential to IANA transition and setting up new IANA and community accountability arrangements. With this precise argument, the jurisdiction issue was force-postponed to works stream 2 over the protests of those who wanted to sort it our first. What does one now make of the same people saying that jurisdiction issue should in fact have been sorted out before the new IANA and community accountability mechanisms were decided, and now it is too late to do so? Please clarify. Thanks. Best regards, parminder
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Paul Rosenzweig *Sent:* Monday, February 13, 2017 1:59 PM *To:* 'parminder' <parminder@itforchange.net> <mailto:parminder@itforchange.net>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
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
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*From:*parminder [mailto:parminder@itforchange.net] *Sent:* Sunday, February 12, 2017 12:54 AM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>>; 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
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*From:*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> *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.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...>
Those interested in the scope of jurisdictional immunity for IGOs should review the legal memo from Prof. Edward Swaine contained in the initial report available at https://www.icann.org/public-comments/igo-ingo-crp-access-initial-2017-01-20... > As you will see it varies by both jurisdiction and facts of the specific case. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell "Luck is the residue of design" -- Branch Rickey ________________________________ From: ws2-jurisdiction-bounces@icann.org [ws2-jurisdiction-bounces@icann.org] on behalf of parminder [parminder@itforchange.net] Sent: Tuesday, February 14, 2017 12:17 PM To: Burr, Becky; Paul Rosenzweig; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction On Tuesday 14 February 2017 10:23 PM, Burr, Becky wrote: Again, speaking only for myself, my question regarding scope was about immunity, not jurisdiction. They are not the same. The existence of privileges and immunities for international organizations is not jurisdiction dependent – many jurisdictions (including the US) offer such protections. My point here was that the question of immunities was indeed raised and rejected in WS1. ( In fact, this has come up from time to time since Paul Twomey first brought up the Fertilizer Institute example. My thoughts on this are fairly well documented … ) Thanks for your explanation, Becky.... But do not all the problems that you list about enforcing new accountability mechanism apply as much to change of jurisdiction as obtaining immunity under US jurisdiction. In fact I understand getting immunity under the relevant US Act as a diluter form of exit from US jurisdiction or change in jurisdiction. Although I do not want to distract from the standalone point about how so many people (whether or not you, becky) who force-postponed the jurisdiction issue to work stream2 now argue that it should have been dealt in works stream 1, if at all, let me also observe that: The fact is that it is possible to preserve the accountability mechanism as a matter of private law, and with a choice of law/ venue for it being made as California law, even with obtaining immunity under the cited US Act... We have given examples of other US organisations -- like the fertilizer one you mention -- that continue to be US non profits even as they have gained immunity under this US Act. Why dont we first legally explore this option rather than just rejecting it out of hand every time. Millions of dollars have been spent on legal fees on the transition, why cant we spend a little more money to explore this issue. I have asked for it many times before on this list... parminder From: parminder [mailto:parminder@itforchange.net] Sent: Tuesday, February 14, 2017 11:43 AM To: Burr, Becky <Becky.Burr@neustar.biz><mailto:Becky.Burr@neustar.biz>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction On Tuesday 14 February 2017 03:23 AM, Burr, Becky wrote: On the Right to be Forgotten issue, this may be of interest: https://www.theguardian.com/technology/2016/feb/11/google-extend-right-to-be-forgotten-googlecom<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.theguardian.com_technology_2016_feb_11_google-2Dextend-2Dright-2Dto-2Dbe-2Dforgotten-2Dgooglecom&d=DwMD-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=W-ZdUse-7oVFU2TsNxqVInu-QB6EqIRCQ7nK7TD8fFE&s=ASSQppCDbqp5eA6x-8N_LM9k2eJlnKyrAWW00mcIZ5o&e=> Asking only for information, and not reflecting any views of the Board – but is the question of immunity within scope? We just spent several years and many millions of dollars agreeing on an accountability mechanism that ultimately relies on the authority of a court to enforce the results of an IRP or the exercise of a community power. Becky, There are other responses to be given to a few issues and postings but this is confined to a very narrow and clear point: were you and others not around when, at the start of the transition process many asked for the jurisdiction to be taken up first, front and centre but it was argued by many and "decided" that work stream 1 will only take up issues that must be decided before and for the IANA transition to take place, and that other issues can be dealt by work stream 2, and, further, that the jurisdiction issue fits the description of issues for the work-stream 2, it being not essential to IANA transition and setting up new IANA and community accountability arrangements. With this precise argument, the jurisdiction issue was force-postponed to works stream 2 over the protests of those who wanted to sort it our first. What does one now make of the same people saying that jurisdiction issue should in fact have been sorted out before the new IANA and community accountability mechanisms were decided, and now it is too late to do so? Please clarify. Thanks. Best regards, parminder From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Monday, February 13, 2017 1:59 PM To: 'parminder' <parminder@itforchange.net><mailto:parminder@itforchange.net>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction 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> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> 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=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=jVbio65R2RgPLnm2aEg_6Nf9rv5aZjPbmiIko1e7Zr4&s=o-4zgaXZNOFUO08Jqh52pS-lmobR0A-B4lhaTpLrVZk&e=> From: parminder [mailto:parminder@itforchange.net] Sent: Sunday, February 12, 2017 12:54 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>; 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> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> 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=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=jVbio65R2RgPLnm2aEg_6Nf9rv5aZjPbmiIko1e7Zr4&s=o-4zgaXZNOFUO08Jqh52pS-lmobR0A-B4lhaTpLrVZk&e=> From: 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> 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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=jVbio65R2RgPLnm2aEg_6Nf9rv5aZjPbmiIko1e7Zr4&s=Y9z4KT24YTOhb3hxaFgBh60uhNl2BPZN22qWcJ-86es&e=> ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com/email-signature> Version: 2016.0.7998 / Virus Database: 4756/13918 - Release Date: 02/09/17
Phil Corwin <psc@vlaw-dc.com> [2017-02-14 17:22:23 +0000]:
Those interested in the scope of jurisdictional immunity for IGOs should review the legal memo from Prof. Edward Swaine contained in the initial report available at https://www.icann.org/public-comments/igo-ingo-crp-access-initial-2017-01-20... > As you will see it varies by both jurisdiction and facts of the specific case.
Since Phil's link was a bit mangled for me, I thought I'd post a direct link to the report: https://gnso.icann.org/en/issues/igo-ingo-crp-access-initial-19jan17-en.pdf https://goo.gl/aptGn5 -- Pranesh Prakash Policy Director, Centre for Internet and Society http://cis-india.org | tel:+91 80 40926283 sip:pranesh@ostel.co | xmpp:pranesh@cis-india.org https://twitter.com/pranesh
On Tuesday 14 February 2017 10:52 PM, Phil Corwin wrote:
Those interested in the scope of jurisdictional immunity for IGOs should review the legal memo from Prof. Edward Swaine contained in the initial report available at https://www.icann.org/public-comments/igo-ingo-crp-access-initial-2017-01-20... >
As you will see it varies by both jurisdiction and facts of the specific case.
Thanks to Phil for the original link and to Pranesh for reminding us of it... I agree this is an important document. To me it proves what I have been arguing all along; that it is possible to get (or seek) immunity from US jurisdiction for ICANN under the relevant US Act even while ensuring that ICANN's community accountability and other internal governance mechanisms can continue to operate as at present, even when they require the cover of certain US laws like the California non profit law, plus perhaps some kinds of other private laws. This is proven by two concepts discussed in the legal memo. (1) Functional immunity: When a designated international organisation (here, ICANN) is given immunity to only cover its given functions, and not generally for everything under the sun. (2) Waiver of immunity: Whereby the designated international organisation (here, ICANN) can waive its immunity in certain respects. So ICANN has to simply waive its immunity with respect to the operation of the Californian non profit law which now has a nexus with its new accountability mechanism, and is also otherwise the law of its incorporation. (Even with general immunity, such a waiver alone is enough for ICANN to preserve its current ways of functioning, including the accountability mechanism). Accordingly, those who have been arguing that immunity for ICANN cannot be sought because it will disable its community accountability mechanism should in my view now withdraw that argument. It should now be possible for them to agree to seeking immunity for ICANN under the relevant US Act. As to those who actually think that application of full range of US law to ICANN, in every area, whether related to health, or communication, or security/ privacy, or intellectual property, or anti trust, on excluding non-US citizens, basically everything, is actually a good thing and should continue, I of course have no answer. parminder
*Philip S. Corwin, Founding Principal*
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------------------------------------------------------------------------ *From:* ws2-jurisdiction-bounces@icann.org [ws2-jurisdiction-bounces@icann.org] on behalf of parminder [parminder@itforchange.net] *Sent:* Tuesday, February 14, 2017 12:17 PM *To:* Burr, Becky; Paul Rosenzweig; ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
On Tuesday 14 February 2017 10:23 PM, Burr, Becky wrote:
Again, speaking only for myself, my question regarding scope was about immunity, not jurisdiction. They are not the same. The existence of privileges and immunities for international organizations is not jurisdiction dependent – many jurisdictions (including the US) offer such protections. My point here was that the question of immunities was indeed raised and rejected in WS1. ( In fact, this has come up from time to time since Paul Twomey first brought up the Fertilizer Institute example. My thoughts on this are fairly well documented … )
Thanks for your explanation, Becky.... But do not all the problems that you list about enforcing new accountability mechanism apply as much to change of jurisdiction as obtaining immunity under US jurisdiction. In fact I understand getting immunity under the relevant US Act as a diluter form of exit from US jurisdiction or change in jurisdiction.
Although I do not want to distract from the standalone point about how so many people (whether or not you, becky) who force-postponed the jurisdiction issue to work stream2 now argue that it should have been dealt in works stream 1, if at all, let me also observe that:
The fact is that it is possible to preserve the accountability mechanism as a matter of private law, and with a choice of law/ venue for it being made as California law, even with obtaining immunity under the cited US Act... We have given examples of other US organisations -- like the fertilizer one you mention -- that continue to be US non profits even as they have gained immunity under this US Act. Why dont we first legally explore this option rather than just rejecting it out of hand every time. Millions of dollars have been spent on legal fees on the transition, why cant we spend a little more money to explore this issue. I have asked for it many times before on this list... parminder
*From:*parminder [mailto:parminder@itforchange.net] *Sent:* Tuesday, February 14, 2017 11:43 AM *To:* Burr, Becky <Becky.Burr@neustar.biz>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
On Tuesday 14 February 2017 03:23 AM, Burr, Becky wrote:
On the Right to be Forgotten issue, this may be of interest: https://www.theguardian.com/technology/2016/feb/11/google-extend-right-to-be... <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.theguardian.com_tec...>
Asking only for information, and not reflecting any views of the Board – but is the question of immunity within scope? We just spent several years and many millions of dollars agreeing on an accountability mechanism that ultimately relies on the authority of a court to enforce the results of an IRP or the exercise of a community power.
Becky,
There are other responses to be given to a few issues and postings but this is confined to a very narrow and clear point: were you and others not around when, at the start of the transition process many asked for the jurisdiction to be taken up first, front and centre but it was argued by many and "decided" that work stream 1 will only take up issues that must be decided before and for the IANA transition to take place, and that other issues can be dealt by work stream 2, and, further, that the jurisdiction issue fits the description of issues for the work-stream 2, it being not essential to IANA transition and setting up new IANA and community accountability arrangements. With this precise argument, the jurisdiction issue was force-postponed to works stream 2 over the protests of those who wanted to sort it our first. What does one now make of the same people saying that jurisdiction issue should in fact have been sorted out before the new IANA and community accountability mechanisms were decided, and now it is too late to do so? Please clarify. Thanks. Best regards, parminder
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Paul Rosenzweig *Sent:* Monday, February 13, 2017 1:59 PM *To:* 'parminder' <parminder@itforchange.net> <mailto:parminder@itforchange.net>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
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
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*From:*parminder [mailto:parminder@itforchange.net] *Sent:* Sunday, February 12, 2017 12:54 AM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>>; 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
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*From:*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> *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.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...>
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Hi, I am not a lawyer but it doesn't sound accurate to say that the effect of the country of incorporation (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> 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
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*From:* parminder [mailto:parminder@itforchange.net] *Sent:* Sunday, February 12, 2017 12:54 AM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; 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
O: +1 (202) 547-0660 <+1%20202-547-0660>
M: +1 (202) 329-9650 <+1%20202-329-9650>
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of * parminder *Sent:* Saturday, February 11, 2017 8:46 AM *To:* 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.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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>> 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>____
O: +1 (202) 547-0660 <tel:+1%20202-547-0660>____
M: +1 (202) 329-9650 <tel:+1%20202-329-9650>____
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739>____
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>____
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__ __
*From:*parminder [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>>; 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>____
O: +1 (202) 547-0660 <tel:+1%20202-547-0660>____
M: +1 (202) 329-9650 <tel:+1%20202-329-9650>____
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739>____
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>____
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>____
____
*From:*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> *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>> 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>____
O: +1 (202) 547-0660 <tel:+1%20202-547-0660>____
M: +1 (202) 329-9650 <tel:+1%20202-329-9650>____
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739>____
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>____
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>____
__ __
*From:*parminder [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>>; 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>____
O: +1 (202) 547-0660 <tel:+1%20202-547-0660>____
M: +1 (202) 329-9650 <tel:+1%20202-329-9650>____
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739>____
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>____
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>____
____
*From:*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> *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.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> ____
____
__ __
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> ____
____
__ __
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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> 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>> 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>____
O: +1 (202) 547-0660 <tel:+1%20202-547-0660>____
M: +1 (202) 329-9650 <tel:+1%20202-329-9650>____
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739>____
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>____
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830 097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A83 0097CA066684>____
__ __
*From:*parminder [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>>; 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>____
O: +1 (202) 547-0660 <tel:+1%20202-547-0660>____
M: +1 (202) 329-9650 <tel:+1%20202-329-9650>____
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739>____
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>____
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830 097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A83 0097CA066684>____
____
*From:*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> *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>> 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>____
O: +1 (202) 547-0660 <tel:+1%20202-547-0660>____
M: +1 (202) 329-9650 <tel:+1%20202-329-9650>____
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739>____
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>____
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830 097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A83 0097CA066684>____
__ __
*From:*parminder [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>>; 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>____
O: +1 (202) 547-0660 <tel:+1%20202-547-0660>____
M: +1 (202) 329-9650 <tel:+1%20202-329-9650>____
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739>____
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>____
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830 097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A83 0097CA066684>____
____
*From:*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> *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.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> ____
____
__ __
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> ____
____
__ __
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________
Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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? Why is it a global effect on ICANN if it only concerns a small number of countries? [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 On Tue, Feb 14, 2017 at 6:17 AM, Seun Ojedeji <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> 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>> 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>____
O: +1 (202) 547-0660 <tel:+1%20202-547-0660>____
M: +1 (202) 329-9650 <tel:+1%20202-329-9650>____
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739>____
www.redbranchconsulting.com <http://www.redbranchconsulting.com/
____
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830 097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A83 0097CA066684>____
__ __
*From:*parminder [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>>; 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>____
O: +1 (202) 547-0660 <tel:+1%20202-547-0660>____
M: +1 (202) 329-9650 <tel:+1%20202-329-9650>____
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739>____
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>____
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830 097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A83 0097CA066684>____
____
*From:*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> *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>> 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>____
O: +1 (202) 547-0660 <tel:+1%20202-547-0660>____
M: +1 (202) 329-9650 <tel:+1%20202-329-9650>____
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739>____
www.redbranchconsulting.com <http://www.redbranchconsulting.com/
____
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830 097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A83 0097CA066684>____
__ __
*From:*parminder [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>>; 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>____
O: +1 (202) 547-0660 <tel:+1%20202-547-0660>____
M: +1 (202) 329-9650 <tel:+1%20202-329-9650>____
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739>____
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>____
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830 097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A83 0097CA066684>____
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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>] *On Behalf Of *parminder *Sent:* Saturday, February 11, 2017 8:46 AM *To:* 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.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann .org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> ____
____
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_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> ____
____
__ __
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_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________
Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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Sent from my LG G4 Kindly excuse brevity and typos On Feb 14, 2017 12:29 PM, "Greg Shatan" <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 On Tue, Feb 14, 2017 at 6:17 AM, Seun Ojedeji <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> 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>> 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>____
O: +1 (202) 547-0660 <tel:+1%20202-547-0660>____
M: +1 (202) 329-9650 <tel:+1%20202-329-9650>____
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739>____
www.redbranchconsulting.com <http://www.redbranchconsulting.com/
____
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830 097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A83 0097CA066684>____
__ __
*From:*parminder [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>>; 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>____
O: +1 (202) 547-0660 <tel:+1%20202-547-0660>____
M: +1 (202) 329-9650 <tel:+1%20202-329-9650>____
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739>____
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>____
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830 097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A83 0097CA066684>____
____
*From:*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> *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>> 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>____
O: +1 (202) 547-0660 <tel:+1%20202-547-0660>____
M: +1 (202) 329-9650 <tel:+1%20202-329-9650>____
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739>____
www.redbranchconsulting.com <http://www.redbranchconsulting.com/
____
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830 097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A83 0097CA066684>____
__ __
*From:*parminder [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>>; 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>____
O: +1 (202) 547-0660 <tel:+1%20202-547-0660>____
M: +1 (202) 329-9650 <tel:+1%20202-329-9650>____
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739>____
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>____
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830 097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A83 0097CA066684>____
____
*From:*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> *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
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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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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> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> ____
____
__ __
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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>____ 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....> <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:*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....> <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:*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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>
I'm extremely reluctant to simply say "I agree". But "I agree . . ." On 23/02/17 17:26, Burr, Becky wrote:
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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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...>
<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>____
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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...>
<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>____
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<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>____
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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...>
<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) . ____
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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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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+1. Well stated. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Burr, Becky Sent: Thursday, February 23, 2017 12:26 PM To: Seun Ojedeji; Greg Shatan Cc: ws2-jurisdiction Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction 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> [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<mailto:gregshatanipc@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: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>____ 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....> <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:*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....> <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:*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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> ________________________________ No virus found in this message. 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Yes, thanks Becky - well put On 23/02/2017 17:37, Phil Corwin wrote:
+1. Well stated.
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*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Burr, Becky *Sent:* Thursday, February 23, 2017 12:26 PM *To:* Seun Ojedeji; Greg Shatan *Cc:* ws2-jurisdiction *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
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> [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 <mailto:gregshatanipc@gmail.com>> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto: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>>____
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<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>____
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VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739> <tel:+1%20202-738-1739>____
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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) . ____ > 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.____
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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____
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Paul____
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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____
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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>____
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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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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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Agreed Best regards, John Laprise, Ph.D. Consulting Scholar <http://www.linkedin.com/in/jplaprise/> http://www.linkedin.com/in/jplaprise/ From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Phil Corwin Sent: Thursday, February 23, 2017 11:37 AM To: Burr, Becky <Becky.Burr@neustar.biz>; Seun Ojedeji <seun.ojedeji@gmail.com>; Greg Shatan <gregshatanipc@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction +1. Well stated. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Burr, Becky Sent: Thursday, February 23, 2017 12:26 PM To: Seun Ojedeji; Greg Shatan Cc: ws2-jurisdiction Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction 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> [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 <mailto:gregshatanipc@gmail.com> > Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto: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 <mailto:gregshatanipc@gmail.com> 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>____ 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....> >____ My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &search=0x9A830097CA066684>____ __ __ *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....> <http://www.redbranchconsulting.com/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> >____ My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &search=0x9A830097CA066684>____ ____ *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....> >____ My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &search=0x9A830097CA066684>____ __ __ *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....> <http://www.redbranchconsulting.com/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> >____ My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &search=0x9A830097CA066684>____ ____ *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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> > ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> > _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> 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> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> > ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> > _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> _____ No virus found in this message. 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+1 -- Paul Rosenzweig Sent from myMail app for Android Thursday, 23 February 2017, 00:26PM -05:00 from Burr, Becky Becky.Burr@neustar.biz : >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 > 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 >> >>On Tue, Feb 14, 2017 at 6:17 AM, Seun Ojedeji < 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 > 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 >> 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 >____ >>>>> >>>>> O: +1 (202) 547-0660 < tel:+1%20202-547-0660 >____ >>>>> >>>>> M: +1 (202) 329-9650 < tel:+1%20202-329-9650 >____ >>>>> >>>>> VOIP: +1 (202) 738-1739 < tel:+1%20202-738-1739 >____ >>>>> >>>>> www.redbranchconsulting.com < http://www.redbranchconsulting.com/ >____ >>>>> >>>>> My PGP Key: >>>>> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 >>>>> < https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 >____ >>>>> >>>>> __ __ >>>>> >>>>> *From:*parminder [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 >>; >>>>> 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 >____ >>>>> >>>>> O: +1 (202) 547-0660 < tel:+1%20202-547-0660 >____ >>>>> >>>>> M: +1 (202) 329-9650 < tel:+1%20202-329-9650 >____ >>>>> >>>>> VOIP: +1 (202) 738-1739 < tel:+1%20202-738-1739 >____ >>>>> >>>>> www.redbranchconsulting.com >>>>> < http://www.redbranchconsulting.com/ >____ >>>>> >>>>> My PGP Key: >>>>> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 >>>>> < https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 >____ >>>>> >>>>> ____ >>>>> >>>>> *From:* 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 > >>>>> *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 >> 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 >____ >>>>> >>>>> O: +1 (202) 547-0660 < tel:+1%20202-547-0660 >____ >>>>> >>>>> M: +1 (202) 329-9650 < tel:+1%20202-329-9650 >____ >>>>> >>>>> VOIP: +1 (202) 738-1739 < tel:+1%20202-738-1739 >____ >>>>> >>>>> www.redbranchconsulting.com < http://www.redbranchconsulting.com/ >____ >>>>> >>>>> My PGP Key: >>>>> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 >>>>> < https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 >____ >>>>> >>>>> __ __ >>>>> >>>>> *From:*parminder [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 >>; >>>>> 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 >____ >>>>> >>>>> O: +1 (202) 547-0660 < tel:+1%20202-547-0660 >____ >>>>> >>>>> M: +1 (202) 329-9650 < tel:+1%20202-329-9650 >____ >>>>> >>>>> VOIP: +1 (202) 738-1739 < tel:+1%20202-738-1739 >____ >>>>> >>>>> www.redbranchconsulting.com >>>>> < http://www.redbranchconsulting.com/ >____ >>>>> >>>>> My PGP Key: >>>>> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 >>>>> < https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 >____ >>>>> >>>>> ____ >>>>> >>>>> *From:* 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 > >>>>> *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. >>>>> >>>>> >>>>> >>>>> _______________________________________________ >>>>> Ws2-jurisdiction mailing list >>>>> Ws2-jurisdiction@icann.org <mailto: Ws2-jurisdiction@icann.org > >>>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction >>>>> < https://mm.icann.org/mailman/listinfo/ws2-jurisdiction > ____ >>>>> >>>>> ____ >>>>> >>>>> __ __ >>>>> >>>>> >>>>> _______________________________________________ >>>>> Ws2-jurisdiction mailing list >>>>> Ws2-jurisdiction@icann.org <mailto: Ws2-jurisdiction@icann.org > >>>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction >>>>> < https://mm.icann.org/mailman/listinfo/ws2-jurisdiction > >>>>> >>>>> >>>>> >>>>>_______________________________________________ >>>>>Ws2-jurisdiction mailing list >>>>>Ws2-jurisdiction@icann.org >>>>>https://mm.icann.org/mailman/listinfo/ws2-jurisdiction >>>> >>>>> 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 > >>>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction >>>>> < https://mm.icann.org/mailman/listinfo/ws2-jurisdiction > ____ >>>>> >>>>> ____ >>>>> >>>>> __ __ >>>>> >>>>> >>>>> _______________________________________________ >>>>> Ws2-jurisdiction mailing list >>>>> Ws2-jurisdiction@icann.org <mailto: Ws2-jurisdiction@icann.org > >>>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction >>>>> < https://mm.icann.org/mailman/listinfo/ws2-jurisdiction > >>>>> >>>>> >>>>> >>>>>_______________________________________________ >>>>>Ws2-jurisdiction mailing list >>>>>Ws2-jurisdiction@icann.org >>>>>https://mm.icann.org/mailman/listinfo/ws2-jurisdiction >>>>_______________________________________________ >>>>Ws2-jurisdiction mailing list >>>>Ws2-jurisdiction@icann.org >>>>https://mm.icann.org/mailman/listinfo/ws2-jurisdiction >>> >>>_______________________________________________ >>>Ws2-jurisdiction mailing list >>>Ws2-jurisdiction@icann.org >>>https://mm.icann.org/mailman/listinfo/ws2-jurisdiction >> > >_______________________________________________ >Ws2-jurisdiction mailing list >Ws2-jurisdiction@icann.org >https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Dear all, Just as factual information considering that a reference was made to Swiss regulations: The Swiss Host State Act (HSA) provides for the possibility that the Swiss government concludes agreements concerning privileges, immunities and facilities with different types of organizations. If an organization wishes to establish its headquarters in Switzerland and if it needs specific privileges and immunities, it will be necessary to examine in due course whether it meets the conditions required by the law and, as the case may be, which privileges and immunities could be granted by the Swiss government. Hope this is helpful Regards Jorge Von: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Burr, Becky Gesendet: Donnerstag, 23. Februar 2017 18:26 An: Seun Ojedeji <seun.ojedeji@gmail.com>; Greg Shatan <gregshatanipc@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction 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> [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<mailto:gregshatanipc@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: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>____ 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....> <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:*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....> <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:*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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>
Jorge, Certainly not claiming any expertise in Swiss law, but for further factual information I relied on this translation of the HSA on this Swiss government web site: https://www.admin.ch/opc/en/classified-compilation/20061778/index.html. B From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch Sent: Thursday, February 23, 2017 1:12 PM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Dear all, Just as factual information considering that a reference was made to Swiss regulations: The Swiss Host State Act (HSA) provides for the possibility that the Swiss government concludes agreements concerning privileges, immunities and facilities with different types of organizations. If an organization wishes to establish its headquarters in Switzerland and if it needs specific privileges and immunities, it will be necessary to examine in due course whether it meets the conditions required by the law and, as the case may be, which privileges and immunities could be granted by the Swiss government. Hope this is helpful Regards Jorge Von: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Burr, Becky Gesendet: Donnerstag, 23. Februar 2017 18:26 An: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>>; Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction 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> [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<mailto:gregshatanipc@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: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>____ 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....> <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:*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....> <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:*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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>
Dear Becky, I’m no expert either ☺ But the fact is that not only treaty organizations or intergovernmental ones may benefit from that law, although it is a complex process for doing so. A recent example of such an agreement with a private organization is the one with the Centre for Humanitarian Dialogue… Kind regards Jorge Von: Burr, Becky [mailto:Becky.Burr@neustar.biz] Gesendet: Donnerstag, 23. Februar 2017 19:49 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; ws2-jurisdiction@icann.org Betreff: RE: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Jorge, Certainly not claiming any expertise in Swiss law, but for further factual information I relied on this translation of the HSA on this Swiss government web site: https://www.admin.ch/opc/en/classified-compilation/20061778/index.html. B From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Sent: Thursday, February 23, 2017 1:12 PM To: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Dear all, Just as factual information considering that a reference was made to Swiss regulations: The Swiss Host State Act (HSA) provides for the possibility that the Swiss government concludes agreements concerning privileges, immunities and facilities with different types of organizations. If an organization wishes to establish its headquarters in Switzerland and if it needs specific privileges and immunities, it will be necessary to examine in due course whether it meets the conditions required by the law and, as the case may be, which privileges and immunities could be granted by the Swiss government. Hope this is helpful Regards Jorge Von: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Burr, Becky Gesendet: Donnerstag, 23. Februar 2017 18:26 An: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>>; Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction 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> [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<mailto:gregshatanipc@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: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>____ 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....> <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:*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....> <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:*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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>
Yes, I see it has been granted status under the “other international body” provision, which requires: Any other international body may by way of exception be accorded privileges, immunities and facilities if: a. it works closely with one or more intergovernmental organisations or international institutions based in Switzerland or with States in carrying out tasks which are normally the responsibility of those intergovernmental organisations, international institutions or States; b. it plays a key role in an important area of international relations; c. it has wide recognition at the international level; and d. the granting of privileges, immunities and facilities contributes substantially to the fulfilment of its mandate. Indeed, non-violent resolution of armed conflicts does strike me as carrying out tasks normally the responsibility of governments and/or intergovernmental organizations. The premise of ICANN, on the other hand, is to ensure that management of the DNS continues to be driven by the private sector (including civil society, academics, businesses, etc.) with input from governments on public policy issues. In From: Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Thursday, February 23, 2017 2:01 PM To: Burr, Becky <Becky.Burr@neustar.biz>; ws2-jurisdiction@icann.org Subject: AW: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Dear Becky, I’m no expert either ☺ But the fact is that not only treaty organizations or intergovernmental ones may benefit from that law, although it is a complex process for doing so. A recent example of such an agreement with a private organization is the one with the Centre for Humanitarian Dialogue… Kind regards Jorge Von: Burr, Becky [mailto:Becky.Burr@neustar.biz] Gesendet: Donnerstag, 23. Februar 2017 19:49 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Betreff: RE: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Jorge, Certainly not claiming any expertise in Swiss law, but for further factual information I relied on this translation of the HSA on this Swiss government web site: https://www.admin.ch/opc/en/classified-compilation/20061778/index.html<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.admin.ch_opc_en_classified-2Dcompilation_20061778_index.html&d=DwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=M22DbyAQk_mPQNWkJXCsL2TmGcwiIvDTkPunfNBmzHg&s=9zbo5WddgYlNmlXGaNWtp5rXzkpZ9SotUzKwew92Qio&e=>. B From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Sent: Thursday, February 23, 2017 1:12 PM To: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Dear all, Just as factual information considering that a reference was made to Swiss regulations: The Swiss Host State Act (HSA) provides for the possibility that the Swiss government concludes agreements concerning privileges, immunities and facilities with different types of organizations. If an organization wishes to establish its headquarters in Switzerland and if it needs specific privileges and immunities, it will be necessary to examine in due course whether it meets the conditions required by the law and, as the case may be, which privileges and immunities could be granted by the Swiss government. Hope this is helpful Regards Jorge Von: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Burr, Becky Gesendet: Donnerstag, 23. Februar 2017 18:26 An: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>>; Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction 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> [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<mailto:gregshatanipc@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: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>____ 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....> <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:*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....> <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:*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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>
Reminds me of ICANNs Articles of Incorporation ☺ In furtherance of the foregoing purposes, and in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, the Corporation shall, except as limited by Article 5 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by (i) coordinating the assignment of Internet technical parameters as needed to maintain universal connectivity on the Internet; (ii) performing and overseeing functions related to the coordination of the Internet Protocol ("IP") address space; (iii) performing and overseeing functions related to the coordination of the Internet domain name system ("DNS"), including the development of policies for determining the circumstances under which new top-level domains are added to the DNS root system; (iv) overseeing operation of the authoritative Internet DNS root server system; and (v) engaging in any other related lawful activity in furtherance of items (i) through (iv). Regards Jorge Von: Burr, Becky [mailto:Becky.Burr@neustar.biz] Gesendet: Donnerstag, 23. Februar 2017 20:24 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; ws2-jurisdiction@icann.org Betreff: RE: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Yes, I see it has been granted status under the “other international body” provision, which requires: Any other international body may by way of exception be accorded privileges, immunities and facilities if: a. it works closely with one or more intergovernmental organisations or international institutions based in Switzerland or with States in carrying out tasks which are normally the responsibility of those intergovernmental organisations, international institutions or States; b. it plays a key role in an important area of international relations; c. it has wide recognition at the international level; and d. the granting of privileges, immunities and facilities contributes substantially to the fulfilment of its mandate. Indeed, non-violent resolution of armed conflicts does strike me as carrying out tasks normally the responsibility of governments and/or intergovernmental organizations. The premise of ICANN, on the other hand, is to ensure that management of the DNS continues to be driven by the private sector (including civil society, academics, businesses, etc.) with input from governments on public policy issues. In From: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Thursday, February 23, 2017 2:01 PM To: Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: AW: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Dear Becky, I’m no expert either ☺ But the fact is that not only treaty organizations or intergovernmental ones may benefit from that law, although it is a complex process for doing so. A recent example of such an agreement with a private organization is the one with the Centre for Humanitarian Dialogue… Kind regards Jorge Von: Burr, Becky [mailto:Becky.Burr@neustar.biz] Gesendet: Donnerstag, 23. Februar 2017 19:49 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Betreff: RE: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Jorge, Certainly not claiming any expertise in Swiss law, but for further factual information I relied on this translation of the HSA on this Swiss government web site: https://www.admin.ch/opc/en/classified-compilation/20061778/index.html<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.admin.ch_opc_en_classified-2Dcompilation_20061778_index.html&d=DwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=M22DbyAQk_mPQNWkJXCsL2TmGcwiIvDTkPunfNBmzHg&s=9zbo5WddgYlNmlXGaNWtp5rXzkpZ9SotUzKwew92Qio&e=>. B From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Sent: Thursday, February 23, 2017 1:12 PM To: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Dear all, Just as factual information considering that a reference was made to Swiss regulations: The Swiss Host State Act (HSA) provides for the possibility that the Swiss government concludes agreements concerning privileges, immunities and facilities with different types of organizations. If an organization wishes to establish its headquarters in Switzerland and if it needs specific privileges and immunities, it will be necessary to examine in due course whether it meets the conditions required by the law and, as the case may be, which privileges and immunities could be granted by the Swiss government. Hope this is helpful Regards Jorge Von: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Burr, Becky Gesendet: Donnerstag, 23. Februar 2017 18:26 An: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>>; Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction 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> [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<mailto:gregshatanipc@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: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>____ 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....> <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:*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....> <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:*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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>
Touché – although I think we can distinguish armed conflicts and the DNS. From: Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Thursday, February 23, 2017 2:29 PM To: Burr, Becky <Becky.Burr@neustar.biz>; ws2-jurisdiction@icann.org Subject: AW: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Reminds me of ICANNs Articles of Incorporation ☺ In furtherance of the foregoing purposes, and in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, the Corporation shall, except as limited by Article 5 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by (i) coordinating the assignment of Internet technical parameters as needed to maintain universal connectivity on the Internet; (ii) performing and overseeing functions related to the coordination of the Internet Protocol ("IP") address space; (iii) performing and overseeing functions related to the coordination of the Internet domain name system ("DNS"), including the development of policies for determining the circumstances under which new top-level domains are added to the DNS root system; (iv) overseeing operation of the authoritative Internet DNS root server system; and (v) engaging in any other related lawful activity in furtherance of items (i) through (iv). Regards Jorge Von: Burr, Becky [mailto:Becky.Burr@neustar.biz] Gesendet: Donnerstag, 23. Februar 2017 20:24 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Betreff: RE: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Yes, I see it has been granted status under the “other international body” provision, which requires: Any other international body may by way of exception be accorded privileges, immunities and facilities if: a. it works closely with one or more intergovernmental organisations or international institutions based in Switzerland or with States in carrying out tasks which are normally the responsibility of those intergovernmental organisations, international institutions or States; b. it plays a key role in an important area of international relations; c. it has wide recognition at the international level; and d. the granting of privileges, immunities and facilities contributes substantially to the fulfilment of its mandate. Indeed, non-violent resolution of armed conflicts does strike me as carrying out tasks normally the responsibility of governments and/or intergovernmental organizations. The premise of ICANN, on the other hand, is to ensure that management of the DNS continues to be driven by the private sector (including civil society, academics, businesses, etc.) with input from governments on public policy issues. In From: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Thursday, February 23, 2017 2:01 PM To: Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: AW: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Dear Becky, I’m no expert either ☺ But the fact is that not only treaty organizations or intergovernmental ones may benefit from that law, although it is a complex process for doing so. A recent example of such an agreement with a private organization is the one with the Centre for Humanitarian Dialogue… Kind regards Jorge Von: Burr, Becky [mailto:Becky.Burr@neustar.biz] Gesendet: Donnerstag, 23. Februar 2017 19:49 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Betreff: RE: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Jorge, Certainly not claiming any expertise in Swiss law, but for further factual information I relied on this translation of the HSA on this Swiss government web site: https://www.admin.ch/opc/en/classified-compilation/20061778/index.html<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.admin.ch_opc_en_classified-2Dcompilation_20061778_index.html&d=DwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=M22DbyAQk_mPQNWkJXCsL2TmGcwiIvDTkPunfNBmzHg&s=9zbo5WddgYlNmlXGaNWtp5rXzkpZ9SotUzKwew92Qio&e=>. B From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Sent: Thursday, February 23, 2017 1:12 PM To: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Dear all, Just as factual information considering that a reference was made to Swiss regulations: The Swiss Host State Act (HSA) provides for the possibility that the Swiss government concludes agreements concerning privileges, immunities and facilities with different types of organizations. If an organization wishes to establish its headquarters in Switzerland and if it needs specific privileges and immunities, it will be necessary to examine in due course whether it meets the conditions required by the law and, as the case may be, which privileges and immunities could be granted by the Swiss government. Hope this is helpful Regards Jorge Von: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Burr, Becky Gesendet: Donnerstag, 23. Februar 2017 18:26 An: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>>; Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction 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> [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<mailto:gregshatanipc@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: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>____ 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....> <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:*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....> <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:*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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>
Thanks God they are different! Although everything converges – just think about Microsoft’s recent call for a global agreement… Regards Jorge Von: Burr, Becky [mailto:Becky.Burr@neustar.biz] Gesendet: Donnerstag, 23. Februar 2017 20:33 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; ws2-jurisdiction@icann.org Betreff: RE: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Touché – although I think we can distinguish armed conflicts and the DNS. From: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Thursday, February 23, 2017 2:29 PM To: Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: AW: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Reminds me of ICANNs Articles of Incorporation ☺ In furtherance of the foregoing purposes, and in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, the Corporation shall, except as limited by Article 5 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by (i) coordinating the assignment of Internet technical parameters as needed to maintain universal connectivity on the Internet; (ii) performing and overseeing functions related to the coordination of the Internet Protocol ("IP") address space; (iii) performing and overseeing functions related to the coordination of the Internet domain name system ("DNS"), including the development of policies for determining the circumstances under which new top-level domains are added to the DNS root system; (iv) overseeing operation of the authoritative Internet DNS root server system; and (v) engaging in any other related lawful activity in furtherance of items (i) through (iv). Regards Jorge Von: Burr, Becky [mailto:Becky.Burr@neustar.biz] Gesendet: Donnerstag, 23. Februar 2017 20:24 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Betreff: RE: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Yes, I see it has been granted status under the “other international body” provision, which requires: Any other international body may by way of exception be accorded privileges, immunities and facilities if: a. it works closely with one or more intergovernmental organisations or international institutions based in Switzerland or with States in carrying out tasks which are normally the responsibility of those intergovernmental organisations, international institutions or States; b. it plays a key role in an important area of international relations; c. it has wide recognition at the international level; and d. the granting of privileges, immunities and facilities contributes substantially to the fulfilment of its mandate. Indeed, non-violent resolution of armed conflicts does strike me as carrying out tasks normally the responsibility of governments and/or intergovernmental organizations. The premise of ICANN, on the other hand, is to ensure that management of the DNS continues to be driven by the private sector (including civil society, academics, businesses, etc.) with input from governments on public policy issues. In From: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Thursday, February 23, 2017 2:01 PM To: Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: AW: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Dear Becky, I’m no expert either ☺ But the fact is that not only treaty organizations or intergovernmental ones may benefit from that law, although it is a complex process for doing so. A recent example of such an agreement with a private organization is the one with the Centre for Humanitarian Dialogue… Kind regards Jorge Von: Burr, Becky [mailto:Becky.Burr@neustar.biz] Gesendet: Donnerstag, 23. Februar 2017 19:49 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Betreff: RE: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Jorge, Certainly not claiming any expertise in Swiss law, but for further factual information I relied on this translation of the HSA on this Swiss government web site: https://www.admin.ch/opc/en/classified-compilation/20061778/index.html<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.admin.ch_opc_en_classified-2Dcompilation_20061778_index.html&d=DwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=M22DbyAQk_mPQNWkJXCsL2TmGcwiIvDTkPunfNBmzHg&s=9zbo5WddgYlNmlXGaNWtp5rXzkpZ9SotUzKwew92Qio&e=>. B From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Sent: Thursday, February 23, 2017 1:12 PM To: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Dear all, Just as factual information considering that a reference was made to Swiss regulations: The Swiss Host State Act (HSA) provides for the possibility that the Swiss government concludes agreements concerning privileges, immunities and facilities with different types of organizations. If an organization wishes to establish its headquarters in Switzerland and if it needs specific privileges and immunities, it will be necessary to examine in due course whether it meets the conditions required by the law and, as the case may be, which privileges and immunities could be granted by the Swiss government. Hope this is helpful Regards Jorge Von: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Burr, Becky Gesendet: Donnerstag, 23. Februar 2017 18:26 An: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>>; Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction 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> [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<mailto:gregshatanipc@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: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>____ 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....> <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:*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....> <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:*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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>
And fortunately ICANN’s Mission does not include cyberwarfare. From: Jorge.Cancio@bakom.admin.ch [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Thursday, February 23, 2017 2:35 PM To: Burr, Becky <Becky.Burr@neustar.biz>; ws2-jurisdiction@icann.org Subject: AW: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Thanks God they are different! Although everything converges – just think about Microsoft’s recent call for a global agreement… Regards Jorge Von: Burr, Becky [mailto:Becky.Burr@neustar.biz] Gesendet: Donnerstag, 23. Februar 2017 20:33 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Betreff: RE: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Touché – although I think we can distinguish armed conflicts and the DNS. From: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Thursday, February 23, 2017 2:29 PM To: Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: AW: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Reminds me of ICANNs Articles of Incorporation ☺ In furtherance of the foregoing purposes, and in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, the Corporation shall, except as limited by Article 5 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by (i) coordinating the assignment of Internet technical parameters as needed to maintain universal connectivity on the Internet; (ii) performing and overseeing functions related to the coordination of the Internet Protocol ("IP") address space; (iii) performing and overseeing functions related to the coordination of the Internet domain name system ("DNS"), including the development of policies for determining the circumstances under which new top-level domains are added to the DNS root system; (iv) overseeing operation of the authoritative Internet DNS root server system; and (v) engaging in any other related lawful activity in furtherance of items (i) through (iv). Regards Jorge Von: Burr, Becky [mailto:Becky.Burr@neustar.biz] Gesendet: Donnerstag, 23. Februar 2017 20:24 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Betreff: RE: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Yes, I see it has been granted status under the “other international body” provision, which requires: Any other international body may by way of exception be accorded privileges, immunities and facilities if: a. it works closely with one or more intergovernmental organisations or international institutions based in Switzerland or with States in carrying out tasks which are normally the responsibility of those intergovernmental organisations, international institutions or States; b. it plays a key role in an important area of international relations; c. it has wide recognition at the international level; and d. the granting of privileges, immunities and facilities contributes substantially to the fulfilment of its mandate. Indeed, non-violent resolution of armed conflicts does strike me as carrying out tasks normally the responsibility of governments and/or intergovernmental organizations. The premise of ICANN, on the other hand, is to ensure that management of the DNS continues to be driven by the private sector (including civil society, academics, businesses, etc.) with input from governments on public policy issues. In From: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Thursday, February 23, 2017 2:01 PM To: Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: AW: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Dear Becky, I’m no expert either ☺ But the fact is that not only treaty organizations or intergovernmental ones may benefit from that law, although it is a complex process for doing so. A recent example of such an agreement with a private organization is the one with the Centre for Humanitarian Dialogue… Kind regards Jorge Von: Burr, Becky [mailto:Becky.Burr@neustar.biz] Gesendet: Donnerstag, 23. Februar 2017 19:49 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Betreff: RE: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Jorge, Certainly not claiming any expertise in Swiss law, but for further factual information I relied on this translation of the HSA on this Swiss government web site: https://www.admin.ch/opc/en/classified-compilation/20061778/index.html<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.admin.ch_opc_en_classified-2Dcompilation_20061778_index.html&d=DwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=M22DbyAQk_mPQNWkJXCsL2TmGcwiIvDTkPunfNBmzHg&s=9zbo5WddgYlNmlXGaNWtp5rXzkpZ9SotUzKwew92Qio&e=>. B From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Sent: Thursday, February 23, 2017 1:12 PM To: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Dear all, Just as factual information considering that a reference was made to Swiss regulations: The Swiss Host State Act (HSA) provides for the possibility that the Swiss government concludes agreements concerning privileges, immunities and facilities with different types of organizations. If an organization wishes to establish its headquarters in Switzerland and if it needs specific privileges and immunities, it will be necessary to examine in due course whether it meets the conditions required by the law and, as the case may be, which privileges and immunities could be granted by the Swiss government. Hope this is helpful Regards Jorge Von: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Burr, Becky Gesendet: Donnerstag, 23. Februar 2017 18:26 An: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>>; Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction 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> [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<mailto:gregshatanipc@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: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>____ 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....> <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:*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....> <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:*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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>
+∞ Best regards, John Laprise, Ph.D. Consulting Scholar <http://www.linkedin.com/in/jplaprise/> http://www.linkedin.com/in/jplaprise/ From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Burr, Becky Sent: Thursday, February 23, 2017 1:39 PM To: Jorge.Cancio@bakom.admin.ch; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction And fortunately ICANN’s Mission does not include cyberwarfare. From: Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Thursday, February 23, 2017 2:35 PM To: Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz> >; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: AW: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Thanks God they are different! Although everything converges – just think about Microsoft’s recent call for a global agreement… Regards Jorge Von: Burr, Becky [mailto:Becky.Burr@neustar.biz] Gesendet: Donnerstag, 23. Februar 2017 20:33 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> >; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Betreff: RE: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Touché – although I think we can distinguish armed conflicts and the DNS. From: Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Thursday, February 23, 2017 2:29 PM To: Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz> >; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: AW: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Reminds me of ICANNs Articles of Incorporation :) In furtherance of the foregoing purposes, and in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, the Corporation shall, except as limited by Article 5 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by (i) coordinating the assignment of Internet technical parameters as needed to maintain universal connectivity on the Internet; (ii) performing and overseeing functions related to the coordination of the Internet Protocol ("IP") address space; (iii) performing and overseeing functions related to the coordination of the Internet domain name system ("DNS"), including the development of policies for determining the circumstances under which new top-level domains are added to the DNS root system; (iv) overseeing operation of the authoritative Internet DNS root server system; and (v) engaging in any other related lawful activity in furtherance of items (i) through (iv). Regards Jorge Von: Burr, Becky [mailto:Becky.Burr@neustar.biz] Gesendet: Donnerstag, 23. Februar 2017 20:24 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> >; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Betreff: RE: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Yes, I see it has been granted status under the “other international body” provision, which requires: Any other international body may by way of exception be accorded privileges, immunities and facilities if: a. it works closely with one or more intergovernmental organisations or international institutions based in Switzerland or with States in carrying out tasks which are normally the responsibility of those intergovernmental organisations, international institutions or States; b. it plays a key role in an important area of international relations; c. it has wide recognition at the international level; and d. the granting of privileges, immunities and facilities contributes substantially to the fulfilment of its mandate. Indeed, non-violent resolution of armed conflicts does strike me as carrying out tasks normally the responsibility of governments and/or intergovernmental organizations. The premise of ICANN, on the other hand, is to ensure that management of the DNS continues to be driven by the private sector (including civil society, academics, businesses, etc.) with input from governments on public policy issues. In From: Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> [mailto:Jorge.Cancio@bakom.admin.ch] Sent: Thursday, February 23, 2017 2:01 PM To: Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz> >; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: AW: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Dear Becky, I’m no expert either :) But the fact is that not only treaty organizations or intergovernmental ones may benefit from that law, although it is a complex process for doing so. A recent example of such an agreement with a private organization is the one with the Centre for Humanitarian Dialogue… Kind regards Jorge Von: Burr, Becky [mailto:Becky.Burr@neustar.biz] Gesendet: Donnerstag, 23. Februar 2017 19:49 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> >; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Betreff: RE: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Jorge, Certainly not claiming any expertise in Swiss law, but for further factual information I relied on this translation of the HSA on this Swiss government web site: https://www.admin.ch/opc/en/classified-compilation/20061778/index.html <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.admin.ch_opc_en_cla...> . B From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> Sent: Thursday, February 23, 2017 1:12 PM To: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Dear all, Just as factual information considering that a reference was made to Swiss regulations: The Swiss Host State Act (HSA) provides for the possibility that the Swiss government concludes agreements concerning privileges, immunities and facilities with different types of organizations. If an organization wishes to establish its headquarters in Switzerland and if it needs specific privileges and immunities, it will be necessary to examine in due course whether it meets the conditions required by the law and, as the case may be, which privileges and immunities could be granted by the Swiss government. Hope this is helpful Regards Jorge Von: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Burr, Becky Gesendet: Donnerstag, 23. Februar 2017 18:26 An: Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com> >; Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> > Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction 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> [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 <mailto:gregshatanipc@gmail.com> > Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto: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 <mailto:gregshatanipc@gmail.com> 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>____ 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....> >____ My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &search=0x9A830097CA066684>____ __ __ *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....> <http://www.redbranchconsulting.com/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> >____ My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &search=0x9A830097CA066684>____ ____ *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....> >____ My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &search=0x9A830097CA066684>____ __ __ *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....> <http://www.redbranchconsulting.com/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> >____ My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &search=0x9A830097CA066684>____ ____ *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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> > ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> > _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> 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> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> > ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> > _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...>
I also support Becky’s personal statement – and note again my personal opinion that even if ICANN’s private-sector Bylaws Core Value did not exist any value that treaties/immunities might or might not offer are matters beyond the capability of this subgroup. But of course the Core value does exist, as Becky notes. Best regards, David David McAuley International Policy Manager Verisign Inc. 703-948-4154 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Burr, Becky Sent: Thursday, February 23, 2017 12:26 PM To: Seun Ojedeji <seun.ojedeji@gmail.com>; Greg Shatan <gregshatanipc@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Subject: [EXTERNAL] Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction 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> [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<mailto:gregshatanipc@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: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>____ 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....> <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:*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....> <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:*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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>
Becky, thanks for your response and please see inline. On Thursday 23 February 2017 10:56 PM, Burr, Becky wrote:
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.
My impression is that immunities is part of the jurisdiction issue that got passed on to workstream, and we are dealing with it now. How and why was it discussed in work-stream is not known to me. it was in relation to enforceability of community accountability mechanism, please see below.
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.
As argued in my previous email, based on an legal memo attached to an ICANN report, it is evident that ICANN can waive immunity with regard to operation of relevant California non profit law required for its accountability mechanism. I am happy to seek legal advice on this point. But from what looks apparent now, your above statement may not hold true.
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.
Yes, it needs action by both the Congress and the President of the US. The former will need to just amend some existing laws related to some international orgs and add ICANN somewhere in it. Simple work. And the President has to issue a decree under the Immunities Act.
ICANN is not a treaty-based organization,
This is not required.
nor is it conducting work normally carried out by an intergovernmental organization.
As shown by Jorge, this is not true.
Turning it into a treaty-based organization
No need to turn it into treaty based org to get US immunity.
would seem to me to violate the Bylaws-mandated Core Value that requires ICANN to */remain rooted in the private sector/*.
There is a linguistic problem here. Private sector is understood differently in the US than almost everywhere else. In the US, it is just to be outside government, which ICANN is. Outside the US, it mostly mean for profit sector. ICANN is indeed outside government(s), and there is no proposal to change that. But it is also equally a non profit . That also I hope is not intended to be changed. In any case, whether non profit or for profit, everything is always subject to some kind of governmental jurisdiction. Being so subject does not change its non profit or even for profit nature. So the point is really moot.
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.
The community asked this group to consider the issue of US jurisdiction over ICANN. And a question can only be considered if it is open - -unless, sorry to use that word, we are all mutually and together fooling ourselves, and doing discussions that really have no meaning or purpose. I really hope this is not the case - -although, I must admit, despair often does arises that it may actually may be the case. parminder
*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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My PGP Key:
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<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....> <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...>
<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>____
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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...>
<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....> <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...>
<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) . ____
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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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
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On Saturday 11 February 2017 02:16 PM, Nigel Roberts wrote:____
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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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There is a linguistic problem here. Private sector is understood differently in the US than almost everywhere else.
There may indeed by a linguistic problem as you suggest, since if just one person understands a term-of-art different to the rest, as you state you do, confusion inevitably obtains. But there is not the widespread confusion you imply. I am oustide the US. I do not understand the term differently. "Private sector" is one of those terms which (like when lawyers use the terms "convention" or "common law") has multiple subtly different meanings which are wholly dependent upon context. In British English, "private sector" means, pretty much, the same as it mean in American English. Its direct antonym is "public sector". It therefore means exactly what it says on the tin. In the debate over socialism and communism in late 19th and most of the 20th Century, the controversy over ownership of capital and the means of production was between the public sector ("nationalisation") and the private sector ("privatised business") It is true that often "private sector" is used to refer to a for-profit structure for business ownership being, e.g., better than a bureaucratic socialist model (vide the - mostly - successful privatisations by British Governments of both political colours in the 1980s and 1990s). The expression used in the UK when you want to distinguish this kind of private sector body from the others is "voluntary sector" or "third sector". This means charities, non-profits and NGOs. But you really are dancing on the head of a pin here. ICANN is not private sector since it has governments as a fundamental and important part. It also is not private sector since it has the voluntary sector as a fundamental and important part. But it is undeniably "rooted" in the private sector irrespective of which definition you use. It has been quite fashionable since the aforementioned privatisations in the UK for the government to get outof the business of regulation. Hence the rise of "self-regulation" in the private sector. An example of this is the Phone Paid Service Authority (originally ICSTIS) http://psauthority.org.uk/ - a self-regulatory authority that is wholly owned by the the private sector that it regulates. (Yes, the poachers DO appoint the gamekeeper). ICANN is different from this exactly because of the participation of the public sector (GAC) and the voluntary sector (ALAC). But ICANN is still a private sector organisation. And even it, in some contexts you want to distinguish the type of organisation that ICANN is from a pure private sector organisation, we have coined the term 'multistakeholder' for that purpose. That is our collective contribution to the language! Its direct antonym is "multilateral" which, it seems to me, you want, and I don't.
On Saturday 25 February 2017 11:39 AM, Nigel Roberts wrote:
There is a linguistic problem here. Private sector is understood differently in the US than almost everywhere else.
There may indeed by a linguistic problem as you suggest, since if just one person understands a term-of-art different to the rest, as you state you do, confusion inevitably obtains.
Nigel, you are being harsh on me -- it is not just me, i have heard numerous people even in ICANN discussions posit this issue - even from Europe, at least from the continental Europe. But lets stick then to authoritative sources, most relevant to issue under consideration. In the UN and all other substantial global forums, including the OECD and G 20, private sector means only the for profit sector ( see this <https://www.unglobalcompact.org/take-action/events/691-united-nations-privat...>, this <https://www.oecd.org/dac/povertyreduction/34055384.pdf> and this <www.g20.utoronto.ca/analysis/2000privatesector.html> ) . Does this close the issue! You may need to reassess who is dancing on a pin here, I or you/ ICANN..... "That is our collective contribution to the language! Its direct antonym is "multilateral" which, it seems to me, you want, and I don't. " (NIgel) I know that you, and many others here, prefer to fight strawmen than respond to real arguments (for instances, whats wrong with getting US immunity with waiver for California non profit law)... And it simply does not matter if someone says a thousand times that there is no intention to change ICANN's current structure -- but only the jurisdictional level, which is even right now governmental. But I know, for many the US gov smells of all the good things, and other govs, especially of developing countries stink... Some hangovers I'd say.... parminder
But there is not the widespread confusion you imply.
I am oustide the US. I do not understand the term differently.
"Private sector" is one of those terms which (like when lawyers use the terms "convention" or "common law") has multiple subtly different meanings which are wholly dependent upon context.
In British English, "private sector" means, pretty much, the same as it mean in American English.
Its direct antonym is "public sector".
It therefore means exactly what it says on the tin.
In the debate over socialism and communism in late 19th and most of the 20th Century, the controversy over ownership of capital and the means of production was between the public sector ("nationalisation") and the private sector ("privatised business")
It is true that often "private sector" is used to refer to a for-profit structure for business ownership being, e.g., better than a bureaucratic socialist model (vide the - mostly - successful privatisations by British Governments of both political colours in the 1980s and 1990s).
The expression used in the UK when you want to distinguish this kind of private sector body from the others is "voluntary sector" or "third sector".
This means charities, non-profits and NGOs. But you really are dancing on the head of a pin here.
ICANN is not private sector since it has governments as a fundamental and important part.
It also is not private sector since it has the voluntary sector as a fundamental and important part.
But it is undeniably "rooted" in the private sector irrespective of which definition you use.
It has been quite fashionable since the aforementioned privatisations in the UK for the government to get outof the business of regulation. Hence the rise of "self-regulation" in the private sector. An example of this is the Phone Paid Service Authority (originally ICSTIS) http://psauthority.org.uk/ - a self-regulatory authority that is wholly owned by the the private sector that it regulates. (Yes, the poachers DO appoint the gamekeeper).
ICANN is different from this exactly because of the participation of the public sector (GAC) and the voluntary sector (ALAC).
But ICANN is still a private sector organisation.
And even it, in some contexts you want to distinguish the type of organisation that ICANN is from a pure private sector organisation, we have coined the term 'multistakeholder' for that purpose.
That is our collective contribution to the language! Its direct antonym is "multilateral" which, it seems to me, you want, and I don't.
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Dear Paraminder Your impression is wrong. The fact of a lack of immunity was integral to WS1. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Friday, February 24, 2017 11:21 PM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Becky, thanks for your response and please see inline. On Thursday 23 February 2017 10:56 PM, Burr, Becky wrote: 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. My impression is that immunities is part of the jurisdiction issue that got passed on to workstream, and we are dealing with it now. How and why was it discussed in work-stream is not known to me. it was in relation to enforceability of community accountability mechanism, please see below. 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. As argued in my previous email, based on an legal memo attached to an ICANN report, it is evident that ICANN can waive immunity with regard to operation of relevant California non profit law required for its accountability mechanism. I am happy to seek legal advice on this point. But from what looks apparent now, your above statement may not hold true. 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. Yes, it needs action by both the Congress and the President of the US. The former will need to just amend some existing laws related to some international orgs and add ICANN somewhere in it. Simple work. And the President has to issue a decree under the Immunities Act. ICANN is not a treaty-based organization, This is not required. nor is it conducting work normally carried out by an intergovernmental organization. As shown by Jorge, this is not true. Turning it into a treaty-based organization No need to turn it into treaty based org to get US immunity. would seem to me to violate the Bylaws-mandated Core Value that requires ICANN to remain rooted in the private sector. There is a linguistic problem here. Private sector is understood differently in the US than almost everywhere else. In the US, it is just to be outside government, which ICANN is. Outside the US, it mostly mean for profit sector. ICANN is indeed outside government(s), and there is no proposal to change that. But it is also equally a non profit . That also I hope is not intended to be changed. In any case, whether non profit or for profit, everything is always subject to some kind of governmental jurisdiction. Being so subject does not change its non profit or even for profit nature. So the point is really moot. 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. The community asked this group to consider the issue of US jurisdiction over ICANN. And a question can only be considered if it is open - -unless, sorry to use that word, we are all mutually and together fooling ourselves, and doing discussions that really have no meaning or purpose. I really hope this is not the case - -although, I must admit, despair often does arises that it may actually may be the case. parminder From: ws2-jurisdiction-bounces@icann.org <mailto: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 <mailto:gregshatanipc@gmail.com> <gregshatanipc@gmail.com> Cc: ws2-jurisdiction <mailto:ws2-jurisdiction@icann.org> <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 <mailto:gregshatanipc@gmail.com> 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>____ www.redbranchconsulting.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting .com&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8 WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=SW0awN355LgKou0VH8F oTnUMVW3Ew72doP7GYG8HOWw&e=> <http://www.redbranchconsulting.com/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting .com_&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP 8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=1k6KNFdJzQIC6CkW4- cXYamlUd3hWDS-W8MchdaYxlg&e=> >____ My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pk s_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDAL C_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3 LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=> &search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pk s_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDAL C_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3 LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=> &search=0x9A830097CA066684>____ __ __ *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 .com&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8 WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=SW0awN355LgKou0VH8F oTnUMVW3Ew72doP7GYG8HOWw&e=> <http://www.redbranchconsulting.com/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting .com_&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP 8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=1k6KNFdJzQIC6CkW4- cXYamlUd3hWDS-W8MchdaYxlg&e=> >____ My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pk s_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDAL C_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3 LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=> &search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pk s_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDAL C_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3 LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=> &search=0x9A830097CA066684>____ ____ *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 .com&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8 WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=SW0awN355LgKou0VH8F oTnUMVW3Ew72doP7GYG8HOWw&e=> <http://www.redbranchconsulting.com/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting .com_&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP 8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=1k6KNFdJzQIC6CkW4- cXYamlUd3hWDS-W8MchdaYxlg&e=> >____ My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pk s_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDAL C_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3 LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=> &search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pk s_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDAL C_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3 LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=> &search=0x9A830097CA066684>____ __ __ *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 .com&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8 WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=SW0awN355LgKou0VH8F oTnUMVW3Ew72doP7GYG8HOWw&e=> <http://www.redbranchconsulting.com/ <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting .com_&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP 8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=1k6KNFdJzQIC6CkW4- cXYamlUd3hWDS-W8MchdaYxlg&e=> >____ My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pk s_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDAL C_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3 LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=> &search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pk s_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFaQ&c=MOptNlVtIETeDAL C_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3 LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=> &search=0x9A830097CA066684>____ ____ *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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l istinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_ GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao &s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l istinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_ GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao &s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> > ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l istinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_ GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao &s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l istinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_ GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao &s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> > _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l istinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_ GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao &s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l istinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_ GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao &s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l istinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_ GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao &s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> > ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l istinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_ GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao &s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l istinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_ GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao &s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> > _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l istinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_ GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao &s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l istinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_ GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao &s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l istinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_ GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao &s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Yes, it needs action by both the Congress and the President of the US. The former will need to just amend some existing laws related to some international orgs and add ICANN somewhere in it. Simple work. And the President has to issue a decree under the Immunities Act.
So in the name of making ICANN more independent of the US government, you want to subject it to what would undoubtedly be a politically contentious and years-long process of legislation by the U.S. Congress (Republican-dominated) and would require the agreement a President whose platform vowed to never let ICANN be free of the U.S. government. Really smart. Does the word "backfire" have any meaning to non-Americans? If not, check out definition #2 here: https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q... Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology ICANN is not a treaty-based organization, This is not required. nor is it conducting work normally carried out by an intergovernmental organization. As shown by Jorge, this is not true. Turning it into a treaty-based organization No need to turn it into treaty based org to get US immunity. would seem to me to violate the Bylaws-mandated Core Value that requires ICANN to remain rooted in the private sector. There is a linguistic problem here. Private sector is understood differently in the US than almost everywhere else. In the US, it is just to be outside government, which ICANN is. Outside the US, it mostly mean for profit sector. ICANN is indeed outside government(s), and there is no proposal to change that. But it is also equally a non profit . That also I hope is not intended to be changed. In any case, whether non profit or for profit, everything is always subject to some kind of governmental jurisdiction. Being so subject does not change its non profit or even for profit nature. So the point is really moot. 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. The community asked this group to consider the issue of US jurisdiction over ICANN. And a question can only be considered if it is open - -unless, sorry to use that word, we are all mutually and together fooling ourselves, and doing discussions that really have no meaning or purpose. I really hope this is not the case - -although, I must admit, despair often does arises that it may actually may be the case. parminder From: ws2-jurisdiction-bounces@icann.org<mailto: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><mailto:gregshatanipc@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org><mailto: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>____ 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....> <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:*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....> <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:*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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Parminder - I used "private sector" in the manner it is used in the ICANN Bylaws, meaning business stakeholders, academics, civil society, technical community and end-users. See Article 1, Section 1.2(a)(iv). My larger point remains - this question (re privileges and immunities) was asked and answered in WS1. From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Saturday, February 25, 2017 10:06 AM To: parminder <parminder@itforchange.net>; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Yes, it needs action by both the Congress and the President of the US. The former will need to just amend some existing laws related to some international orgs and add ICANN somewhere in it. Simple work. And the President has to issue a decree under the Immunities Act.
So in the name of making ICANN more independent of the US government, you want to subject it to what would undoubtedly be a politically contentious and years-long process of legislation by the U.S. Congress (Republican-dominated) and would require the agreement a President whose platform vowed to never let ICANN be free of the U.S. government. Really smart. Does the word "backfire" have any meaning to non-Americans? If not, check out definition #2 here: https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=backfire+definition&*<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.google.com_webhp-3Fsourceid-3Dchrome-2Dinstant-26ion-3D1-26espv-3D2-26ie-3DUTF-2D8-23q-3Dbackfire-2Bdefinition-26-2A&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=lFzxyNZsqPq3dQCf2tQLLZwXRtWJNr01a16Lb6Zo_d8&s=2vjNdjcujIA_f13AAKVmN8mF_RYRvQZJ-bBgxoQ4Dd8&e=> Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology ICANN is not a treaty-based organization, This is not required. nor is it conducting work normally carried out by an intergovernmental organization. As shown by Jorge, this is not true. Turning it into a treaty-based organization No need to turn it into treaty based org to get US immunity. would seem to me to violate the Bylaws-mandated Core Value that requires ICANN to remain rooted in the private sector. There is a linguistic problem here. Private sector is understood differently in the US than almost everywhere else. In the US, it is just to be outside government, which ICANN is. Outside the US, it mostly mean for profit sector. ICANN is indeed outside government(s), and there is no proposal to change that. But it is also equally a non profit . That also I hope is not intended to be changed. In any case, whether non profit or for profit, everything is always subject to some kind of governmental jurisdiction. Being so subject does not change its non profit or even for profit nature. So the point is really moot. 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. The community asked this group to consider the issue of US jurisdiction over ICANN. And a question can only be considered if it is open - -unless, sorry to use that word, we are all mutually and together fooling ourselves, and doing discussions that really have no meaning or purpose. I really hope this is not the case - -although, I must admit, despair often does arises that it may actually may be the case. parminder From: ws2-jurisdiction-bounces@icann.org<mailto: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><mailto:gregshatanipc@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org><mailto: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>____ 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....> <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:*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....> <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:*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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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). 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On 27 Feb 2017 22:26, "Burr, Becky" <Becky.Burr@neustar.biz> wrote:. My larger point remains – this question (re privileges and immunities) was asked and answered in WS1. SO: I for one would appreciate a reference to this for the record so I can confirm if we are talking about similar context. Would you mind providing a reference where the question and response was documented Becky? Thanks *From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] *On Behalf Of *Mueller, Milton L *Sent:* Saturday, February 25, 2017 10:06 AM *To:* parminder <parminder@itforchange.net>; ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Yes, it needs action by both the Congress and the President of the US.
The former will need to just amend some existing laws related to some
international orgs and add ICANN somewhere in it. Simple work. And
the President has to issue a decree under the Immunities Act.
So in the name of making ICANN more independent of the US government, you want to subject it to what would undoubtedly be a politically contentious and years-long process of legislation by the U.S. Congress (Republican-dominated) and would require the agreement a President whose platform vowed to never let ICANN be free of the U.S. government. Really smart. Does the word “backfire” have any meaning to non-Americans? If not, check out definition #2 here: https://www.google.com/webhp? sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=backfire+definition&* <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.google.com_webhp-3F...> Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology ICANN is not a treaty-based organization, This is not required. nor is it conducting work normally carried out by an intergovernmental organization. As shown by Jorge, this is not true. Turning it into a treaty-based organization No need to turn it into treaty based org to get US immunity. would seem to me to violate the Bylaws-mandated Core Value that requires ICANN to *remain rooted in the private sector*. There is a linguistic problem here. Private sector is understood differently in the US than almost everywhere else. In the US, it is just to be outside government, which ICANN is. Outside the US, it mostly mean for profit sector. ICANN is indeed outside government(s), and there is no proposal to change that. But it is also equally a non profit . That also I hope is not intended to be changed. In any case, whether non profit or for profit, everything is always subject to some kind of governmental jurisdiction. Being so subject does not change its non profit or even for profit nature. So the point is really moot. 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. The community asked this group to consider the issue of US jurisdiction over ICANN. And a question can only be considered if it is open - -unless, sorry to use that word, we are all mutually and together fooling ourselves, and doing discussions that really have no meaning or purpose. I really hope this is not the case - -although, I must admit, despair often does arises that it may actually may be the case. parminder *From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Seun Ojedeji *Sent:* Tuesday, February 14, 2017 1:43 PM *To:* Greg Shatan <gregshatanipc@gmail.com> <gregshatanipc@gmail.com> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> <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> 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 On Tue, Feb 14, 2017 at 6:17 AM, Seun Ojedeji <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> 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>> 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>____ O: +1 (202) 547-0660 <tel:+1%20202-547-0660 <+1%20202-547-0660>>____ M: +1 (202) 329-9650 <tel:+1%20202-329-9650 <+1%20202-329-9650>>____ VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739 <+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....>
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__ __ *From:*parminder [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>>; 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>____ O: +1 (202) 547-0660 <tel:+1%20202-547-0660 <+1%20202-547-0660>>____ M: +1 (202) 329-9650 <tel:+1%20202-329-9650 <+1%20202-329-9650>>____ VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739 <+1%20202-738-1739>
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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>] *On Behalf Of *parminder *Sent:* Saturday, February 11, 2017 8:46 AM *To:* 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>> 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>____ O: +1 (202) 547-0660 <tel:+1%20202-547-0660 <+1%20202-547-0660>>____ M: +1 (202) 329-9650 <tel:+1%20202-329-9650 <+1%20202-329-9650>>____ VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739 <+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....>
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__ __ *From:*parminder [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>>; 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>____ O: +1 (202) 547-0660 <tel:+1%20202-547-0660 <+1%20202-547-0660>>____ M: +1 (202) 329-9650 <tel:+1%20202-329-9650 <+1%20202-329-9650>>____ VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739 <+1%20202-738-1739>
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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>] *On Behalf Of *parminder *Sent:* Saturday, February 11, 2017 8:46 AM *To:* 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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> 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> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...>
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Sure, will have to go back through the F2F meeting transcript, but I think the discussion took place in the first F2F meeting in Frankfurt in January 2015, with one of the outside experts who was pushing the idea From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Monday, February 27, 2017 11:38 AM To: Burr, Becky <Becky.Burr@neustar.biz> Cc: Mueller, Milton L <milton@gatech.edu>; ws2-jurisdiction <ws2-jurisdiction@icann.org>; parminder <parminder@itforchange.net> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction On 27 Feb 2017 22:26, "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote:. My larger point remains – this question (re privileges and immunities) was asked and answered in WS1. SO: I for one would appreciate a reference to this for the record so I can confirm if we are talking about similar context. Would you mind providing a reference where the question and response was documented Becky? Thanks From: 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 Mueller, Milton L Sent: Saturday, February 25, 2017 10:06 AM To: parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Yes, it needs action by both the Congress and the President of the US. The former will need to just amend some existing laws related to some international orgs and add ICANN somewhere in it. Simple work. And the President has to issue a decree under the Immunities Act.
So in the name of making ICANN more independent of the US government, you want to subject it to what would undoubtedly be a politically contentious and years-long process of legislation by the U.S. Congress (Republican-dominated) and would require the agreement a President whose platform vowed to never let ICANN be free of the U.S. government. Really smart. Does the word “backfire” have any meaning to non-Americans? If not, check out definition #2 here: https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=backfire+definition&*<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.google.com_webhp-3Fsourceid-3Dchrome-2Dinstant-26ion-3D1-26espv-3D2-26ie-3DUTF-2D8-23q-3Dbackfire-2Bdefinition-26-2A&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=lFzxyNZsqPq3dQCf2tQLLZwXRtWJNr01a16Lb6Zo_d8&s=2vjNdjcujIA_f13AAKVmN8mF_RYRvQZJ-bBgxoQ4Dd8&e=> Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology ICANN is not a treaty-based organization, This is not required. nor is it conducting work normally carried out by an intergovernmental organization. As shown by Jorge, this is not true. Turning it into a treaty-based organization No need to turn it into treaty based org to get US immunity. would seem to me to violate the Bylaws-mandated Core Value that requires ICANN to remain rooted in the private sector. There is a linguistic problem here. Private sector is understood differently in the US than almost everywhere else. In the US, it is just to be outside government, which ICANN is. Outside the US, it mostly mean for profit sector. ICANN is indeed outside government(s), and there is no proposal to change that. But it is also equally a non profit . That also I hope is not intended to be changed. In any case, whether non profit or for profit, everything is always subject to some kind of governmental jurisdiction. Being so subject does not change its non profit or even for profit nature. So the point is really moot. 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. The community asked this group to consider the issue of US jurisdiction over ICANN. And a question can only be considered if it is open - -unless, sorry to use that word, we are all mutually and together fooling ourselves, and doing discussions that really have no meaning or purpose. I really hope this is not the case - -although, I must admit, despair often does arises that it may actually may be the case. parminder From: ws2-jurisdiction-bounces@icann.org<mailto: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><mailto:gregshatanipc@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org><mailto: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>____ 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....> <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:*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....> <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:*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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=lFzxyNZsqPq3dQCf2tQLLZwXRtWJNr01a16Lb6Zo_d8&s=tc55Ch_YirCnbB-jJFF7yg-QW5vCtxAjnJrB0kpNZp4&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=BDl9R7sJbdeSjifdzPQw6zLp1q3vtgMWmW-wXQ0hrV4&s=1f6YFREa-qF1g6KUMiKsAK989VC121BpFuiZt4VwS-o&e=>
Dear Becky, Apart from possible initial discussion during the very early Frankfurt F2F meetings (February 2015… I wasn’t in Frankfurt, but I don’t recall that this issue had been really discussed in depth and less excluded from the ws2 work on “jurisdiction”), I guess we would need some clear basis in the work stream 1 recommendations, which are the ones which laid down our community-wide agreements and defined the scope of work for work stream 2. My feeling is that no decision to exclude was taken, that we still have to look into potential problems (on the basis of the ongoing fact-finding exercises) and that immunities and privileges are something to be discussed if need be under possible remedies to identified problems. Kind regards Jorge Von: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Burr, Becky Gesendet: Montag, 27. Februar 2017 18:51 An: Seun Ojedeji <seun.ojedeji@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Sure, will have to go back through the F2F meeting transcript, but I think the discussion took place in the first F2F meeting in Frankfurt in January 2015, with one of the outside experts who was pushing the idea From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Monday, February 27, 2017 11:38 AM To: Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Cc: Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>>; ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>>; parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction On 27 Feb 2017 22:26, "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote:. My larger point remains – this question (re privileges and immunities) was asked and answered in WS1. SO: I for one would appreciate a reference to this for the record so I can confirm if we are talking about similar context. Would you mind providing a reference where the question and response was documented Becky? Thanks From: 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 Mueller, Milton L Sent: Saturday, February 25, 2017 10:06 AM To: parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Yes, it needs action by both the Congress and the President of the US. The former will need to just amend some existing laws related to some international orgs and add ICANN somewhere in it. Simple work. And the President has to issue a decree under the Immunities Act.
So in the name of making ICANN more independent of the US government, you want to subject it to what would undoubtedly be a politically contentious and years-long process of legislation by the U.S. Congress (Republican-dominated) and would require the agreement a President whose platform vowed to never let ICANN be free of the U.S. government. Really smart. Does the word “backfire” have any meaning to non-Americans? If not, check out definition #2 here: https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=backfire+definition&*<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.google.com_webhp-3Fsourceid-3Dchrome-2Dinstant-26ion-3D1-26espv-3D2-26ie-3DUTF-2D8-23q-3Dbackfire-2Bdefinition-26-2A&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=lFzxyNZsqPq3dQCf2tQLLZwXRtWJNr01a16Lb6Zo_d8&s=2vjNdjcujIA_f13AAKVmN8mF_RYRvQZJ-bBgxoQ4Dd8&e=> Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology ICANN is not a treaty-based organization, This is not required. nor is it conducting work normally carried out by an intergovernmental organization. As shown by Jorge, this is not true. Turning it into a treaty-based organization No need to turn it into treaty based org to get US immunity. would seem to me to violate the Bylaws-mandated Core Value that requires ICANN to remain rooted in the private sector. There is a linguistic problem here. Private sector is understood differently in the US than almost everywhere else. In the US, it is just to be outside government, which ICANN is. Outside the US, it mostly mean for profit sector. ICANN is indeed outside government(s), and there is no proposal to change that. But it is also equally a non profit . That also I hope is not intended to be changed. In any case, whether non profit or for profit, everything is always subject to some kind of governmental jurisdiction. Being so subject does not change its non profit or even for profit nature. So the point is really moot. 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. The community asked this group to consider the issue of US jurisdiction over ICANN. And a question can only be considered if it is open - -unless, sorry to use that word, we are all mutually and together fooling ourselves, and doing discussions that really have no meaning or purpose. I really hope this is not the case - -although, I must admit, despair often does arises that it may actually may be the case. parminder From: ws2-jurisdiction-bounces@icann.org<mailto: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><mailto:gregshatanipc@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org><mailto: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>____ 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....> <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:*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....> <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:*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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=lFzxyNZsqPq3dQCf2tQLLZwXRtWJNr01a16Lb6Zo_d8&s=tc55Ch_YirCnbB-jJFF7yg-QW5vCtxAjnJrB0kpNZp4&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=BDl9R7sJbdeSjifdzPQw6zLp1q3vtgMWmW-wXQ0hrV4&s=1f6YFREa-qF1g6KUMiKsAK989VC121BpFuiZt4VwS-o&e=>
All, Jorge touches on an important point in terms of our working method: "immunities and privileges are something to be discussed if need be *under possible remedies to identified problems." * That reflects the working method adopted by the group. Nonetheless, this discussion of "immunity" has cropped up several times before the Subgroup has identified any problem supported by the Subgroup that calls for immunity as a possible remedy. Sometimes (as now) these discussions are at significant length and seem to take up much of the working energy of the Subgroup. At this point, we can do one of two things: (1) *Suspend any further discussion of immunity unless and until the Subgroup identifies a problem that calls for immunity as a plausible remedy to that problem*. Problems can be "identified" from items in any of several sources: proposals from participants in the Subgroup, Questionnaire responses, the review of ICANN's litigation, or possibly ICANN Legal's responses to our questions. An item should not be considered an "identified problem" until the Subgroup supports that designation (i.e., an item is proposed and discusse and the Subgroup supports designating it as a problem for purposes of this Subgroup). (2) *Directly consider and resolve the threshold question of whether immunity can and should be a remedy that this Subgroup would recommend. *This question needs to be answered before we move, if at all, to "subsidiary questions" such as "Is immunity available to ICANN?", "How does one get such immunity?", "What does such immunity actually cover?", "What are the consequences of such immunity?", "Can this immunity be customized in some fashion?", "Can such immunity be waived by ICANN (either on a case-by-case basis or generally)?", "What are the conseqences of such waiver?," "How can such immunity be challenged or revoked?", "How would these questions be answered differently under the laws of the US and under the laws of a selected set of other jurisdiction?", etc. *If we decide now that immunity is not a remedy this Subgroup would recommend, these other questions do not need to be considered. *If we decide that immunity is a remedy this Subgroup would potentially recommend, then we can seek answers to those subsidiary questions in an organized process of the Subgroup, including requesting legal advice. Option 1 is one that we've tried, but it has not succeeded (at least not for very long). (As Mark Twain once said, "Quitting smoking is easy. I've done it hundreds of times."). If we decide to re-try Option 1, then it will need to be strictly adhered to (and enforced, if need be). Option 2 is one we have flirted with but have never fully committed to (due to attempts to adhere to Option 1, on the one hand, and the tendency to mix this threshold question in with the subsidiary questions, on the other hand). Escalating these email threads and informal discussions to a focused Subgroup discussion and resolution of just the threshold question could greatly benefit this Subgroup. If we can answer this threshold question now, then we can either (if we answer "no") put the immunity question to rest for this Subgroup; or (if we answer yes), we can suspend further discussions of the "subsidiary questions" until we identify a problem that calls for immunity as a plausible remedy. Either way, we will be able to move past the immunity question and devote our current working energy to the litigation review and analysis, the Questionnaire response review, identification and discussion of potential problems for consideration by the Subgroup, and consideration of the answers from ICANN Legal (when received). *Given how far and how often we have gone down the path of the "immunity discussion" in some form, and since we may actually be honing in on an answer to this threshold question, I suggest that the Subgroup strongly consider Option 2.* I look forward to your thoughts. Greg On Tue, Feb 28, 2017 at 3:42 AM <Jorge.Cancio@bakom.admin.ch> wrote:
Dear Becky,y
Apart from possible initial discussion during the very early Frankfurt F2F meetings (February 2015… I wasn’t in Frankfurt, but I don’t recall that this issue had been really discussed in depth and less excluded from the ws2 work on “jurisdiction”), I guess we would need some clear basis in the work stream 1 recommendations, which are the ones which laid down our community-wide agreements and defined the scope of work for work stream 2.
My feeling is that no decision to exclude was taken, that we still have to look into potential problems (on the basis of the ongoing fact-finding exercises) and that immunities and privileges are something to be discussed if need be under possible remedies to identified problems.
Kind regards
Jorge
*Von:* ws2-jurisdiction-bounces@icann.org [mailto: ws2-jurisdiction-bounces@icann.org] *Im Auftrag von *Burr, Becky *Gesendet:* Montag, 27. Februar 2017 18:51 *An:* Seun Ojedeji <seun.ojedeji@gmail.com> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Betreff:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Sure, will have to go back through the F2F meeting transcript, but I think the discussion took place in the first F2F meeting in Frankfurt in January 2015, with one of the outside experts who was pushing the idea
*From:* Seun Ojedeji [mailto:seun.ojedeji@gmail.com <seun.ojedeji@gmail.com>] *Sent:* Monday, February 27, 2017 11:38 AM *To:* Burr, Becky <Becky.Burr@neustar.biz> *Cc:* Mueller, Milton L <milton@gatech.edu>; ws2-jurisdiction < ws2-jurisdiction@icann.org>; parminder <parminder@itforchange.net> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
On 27 Feb 2017 22:26, "Burr, Becky" <Becky.Burr@neustar.biz> wrote:.
My larger point remains – this question (re privileges and immunities) was asked and answered in WS1.
SO: I for one would appreciate a reference to this for the record so I can confirm if we are talking about similar context. Would you mind providing a reference where the question and response was documented Becky?
Thanks
*From:* ws2-jurisdiction-bounces@icann.org [mailto: ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Mueller, Milton L *Sent:* Saturday, February 25, 2017 10:06 AM *To:* parminder <parminder@itforchange.net>; ws2-jurisdiction@icann.org
*Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Yes, it needs action by both the Congress and the President of the US.
The former will need to just amend some existing laws related to some
international orgs and add ICANN somewhere in it. Simple work. And
the President has to issue a decree under the Immunities Act.
So in the name of making ICANN more independent of the US government, you want to subject it to what would undoubtedly be a politically contentious and years-long process of legislation by the U.S. Congress (Republican-dominated) and would require the agreement a President whose platform vowed to never let ICANN be free of the U.S. government.
Really smart.
Does the word “backfire” have any meaning to non-Americans? If not, check out definition #2 here: https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q... <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.google.com_webhp-3F...>
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
ICANN is not a treaty-based organization,
This is not required.
nor is it conducting work normally carried out by an intergovernmental organization.
As shown by Jorge, this is not true.
Turning it into a treaty-based organization
No need to turn it into treaty based org to get US immunity.
would seem to me to violate the Bylaws-mandated Core Value that requires ICANN to *remain rooted in the private sector*.
There is a linguistic problem here. Private sector is understood differently in the US than almost everywhere else. In the US, it is just to be outside government, which ICANN is. Outside the US, it mostly mean for profit sector. ICANN is indeed outside government(s), and there is no proposal to change that. But it is also equally a non profit . That also I hope is not intended to be changed.
In any case, whether non profit or for profit, everything is always subject to some kind of governmental jurisdiction. Being so subject does not change its non profit or even for profit nature. So the point is really moot.
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.
The community asked this group to consider the issue of US jurisdiction over ICANN. And a question can only be considered if it is open - -unless, sorry to use that word, we are all mutually and together fooling ourselves, and doing discussions that really have no meaning or purpose. I really hope this is not the case - -although, I must admit, despair often does arises that it may actually may be the case.
parminder
*From:* ws2-jurisdiction-bounces@icann.org [ mailto:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Seun Ojedeji *Sent:* Tuesday, February 14, 2017 1:43 PM *To:* Greg Shatan <gregshatanipc@gmail.com> <gregshatanipc@gmail.com> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> <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> 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
On Tue, Feb 14, 2017 at 6:17 AM, Seun Ojedeji <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> 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>> 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>____
O: +1 (202) 547-0660 <tel:+1%20202-547-0660 <+1%20202-547-0660>>____
M: +1 (202) 329-9650 <tel:+1%20202-329-9650 <+1%20202-329-9650>>____
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739 <+1%20202-738-1739>
____
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____
My PGP Key:
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____
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*From:*parminder [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>>; 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>____
O: +1 (202) 547-0660 <tel:+1%20202-547-0660 <+1%20202-547-0660>
____
M: +1 (202) 329-9650 <tel:+1%20202-329-9650 <+1%20202-329-9650>
____
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739 <+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....>
____
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...> < https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...>
____
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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>] *On Behalf Of *parminder *Sent:* Saturday, February 11, 2017 8:46 AM *To:* 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>> 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.____
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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>____
O: +1 (202) 547-0660 <tel:+1%20202-547-0660 <+1%20202-547-0660>>____
M: +1 (202) 329-9650 <tel:+1%20202-329-9650 <+1%20202-329-9650>>____
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739 <+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....>
____
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...> < https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...>
____
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*From:*parminder [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>>; 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>____
O: +1 (202) 547-0660 <tel:+1%20202-547-0660 <+1%20202-547-0660>
____
M: +1 (202) 329-9650 <tel:+1%20202-329-9650 <+1%20202-329-9650>
____
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739 <+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....>
____
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...> < https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...>
____
____
*From:*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> *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.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____
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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> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____
____
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-- *Greg Shatan *C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc@gmail.com
Greg, thanks for the below framing. Let me try to put in my response to it. About (1) below, the problem has not just been a lack of discipline of people keeping on jumping ahead to likely remedies. It is as much about that clear problems have been identified, and they have neither been argued to not exist, not do we as a group accept them as problems. Ii is this that causes a stalemate. Lets just take one category of oft mentioned problems, of the OFAC variety. Many expressions of this category of problems have been stated here. No one has made the case that these problems do not exist -- if there is any such case I am happy to hear it. . But neither we, as a group, have accepted themas being problems with the current US jurisdiction of ICANN. That is what causes frustration. Rather than clearly accepting them as problems that must be addressed (and I must repeat, this is just one category of them), the argument we often hear is -- that may be as it is, but any alternative would be worse. What then is the option for those who present these problems than to to actually try to speak about possible alternatives, and how they can work and not in fact be worse than the current situation?! Another category of problems is with regard to the known seizure of dotcom domains by US custom authorities for alleged IP violations by forcing verisign to act as per their orders. For a gTLD, the order will simply be directed at ICANN. No one has shown us why and how would US customs treat ICANN differently than verisign, in pursuance of what it considers as their legal duty. These seizures by US Customs of domain names for alleged IP violation, by ordering US organisations that allot and control them, also directly shows that any other US agency will do so a similar thing in due enforcement of its mandate. No argument has been forthcoming why this would not be so. Then, we already have US courts having exerted their jurisdiction over the question whether ICANN's allocation of domains names is lawful or not (as per US law). This act of exerting jurisdiction is a problem enough, for the global public not contributing to US law, and not willing to be dictated by it, whatever be the final decision by these courts. All these are problems enough - these are not small matters. Are we ready to list them as problems accepted by the group to be so, whether or not there are solutions for them or not, including whether any proposed solution is better or worse then the current situation? This is the question to the group and the chairs. Doing that would be going by the workplan of identifying problems first before we move to plausible solutions. The questionnaire we sent out is just one input into the exercise of identifying and listing problems, it is not the whole exercise. I think we clearly agreed to this. The information that we may receive will complement all that which has already been contributing in many discussion in this group. Having said this, I agree with you that at the present stage it is best that we moved forward with your option 2. parminder On Tuesday 28 February 2017 10:02 PM, Greg Shatan wrote:
All,
Jorge touches on an important point in terms of our working method: "immunities and privileges are something to be discussed if need be *under possible remedies to identified problems." * * * That reflects the working method adopted by the group. Nonetheless, this discussion of "immunity" has cropped up several times before the Subgroup has identified any problem supported by the Subgroup that calls for immunity as a possible remedy. Sometimes (as now) these discussions are at significant length and seem to take up much of the working energy of the Subgroup.
At this point, we can do one of two things:
(1) *Suspend any further discussion of immunity unless and until the Subgroup identifies a problem that calls for immunity as a plausible remedy to that problem*. Problems can be "identified" from items in any of several sources: proposals from participants in the Subgroup, Questionnaire responses, the review of ICANN's litigation, or possibly ICANN Legal's responses to our questions. An item should not be considered an "identified problem" until the Subgroup supports that designation (i.e., an item is proposed and discusse and the Subgroup supports designating it as a problem for purposes of this Subgroup).
(2) *Directly consider and resolve the threshold question of whether immunity can and should be a remedy that this Subgroup would recommend. *This question needs to be answered before we move, if at all, to "subsidiary questions" such as "Is immunity available to ICANN?", "How does one get such immunity?", "What does such immunity actually cover?", "What are the consequences of such immunity?", "Can this immunity be customized in some fashion?", "Can such immunity be waived by ICANN (either on a case-by-case basis or generally)?", "What are the conseqences of such waiver?," "How can such immunity be challenged or revoked?", "How would these questions be answered differently under the laws of the US and under the laws of a selected set of other jurisdiction?", etc. *If we decide now that immunity is not a remedy this Subgroup would recommend, these other questions do not need to be considered. *If we decide that immunity is a remedy this Subgroup would potentially recommend, then we can seek answers to those subsidiary questions in an organized process of the Subgroup, including requesting legal advice.
Option 1 is one that we've tried, but it has not succeeded (at least not for very long). (As Mark Twain once said, "Quitting smoking is easy. I've done it hundreds of times."). If we decide to re-try Option 1, then it will need to be strictly adhered to (and enforced, if need be).
Option 2 is one we have flirted with but have never fully committed to (due to attempts to adhere to Option 1, on the one hand, and the tendency to mix this threshold question in with the subsidiary questions, on the other hand). Escalating these email threads and informal discussions to a focused Subgroup discussion and resolution of just the threshold question could greatly benefit this Subgroup. If we can answer this threshold question now, then we can either (if we answer "no") put the immunity question to rest for this Subgroup; or (if we answer yes), we can suspend further discussions of the "subsidiary questions" until we identify a problem that calls for immunity as a plausible remedy.
Either way, we will be able to move past the immunity question and devote our current working energy to the litigation review and analysis, the Questionnaire response review, identification and discussion of potential problems for consideration by the Subgroup, and consideration of the answers from ICANN Legal (when received).
*Given how far and how often we have gone down the path of the "immunity discussion" in some form, and since we may actually be honing in on an answer to this threshold question, I suggest that the Subgroup strongly consider Option 2.*
I look forward to your thoughts.
Greg * * * * On Tue, Feb 28, 2017 at 3:42 AM <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>> wrote:
Dear Becky,y
Apart from possible initial discussion during the very early Frankfurt F2F meetings (February 2015… I wasn’t in Frankfurt, but I don’t recall that this issue had been really discussed in depth and less excluded from the ws2 work on “jurisdiction”), I guess we would need some clear basis in the work stream 1 recommendations, which are the ones which laid down our community-wide agreements and defined the scope of work for work stream 2.
My feeling is that no decision to exclude was taken, that we still have to look into potential problems (on the basis of the ongoing fact-finding exercises) and that immunities and privileges are something to be discussed if need be under possible remedies to identified problems.
Kind regards
Jorge
*Von:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *Im Auftrag von *Burr, Becky *Gesendet:* Montag, 27. Februar 2017 18:51 *An:* Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> *Betreff:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Sure, will have to go back through the F2F meeting transcript, but I think the discussion took place in the first F2F meeting in Frankfurt in January 2015, with one of the outside experts who was pushing the idea
*From:*Seun Ojedeji [mailto:seun.ojedeji@gmail.com] *Sent:* Monday, February 27, 2017 11:38 AM *To:* Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> *Cc:* Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>>; ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>>; parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
On 27 Feb 2017 22:26, "Burr, Becky" <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> wrote:.
My larger point remains – this question (re privileges and immunities) was asked and answered in WS1.
SO: I for one would appreciate a reference to this for the record so I can confirm if we are talking about similar context. Would you mind providing a reference where the question and response was documented Becky?
Thanks
*From:*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 *Mueller, Milton L *Sent:* Saturday, February 25, 2017 10:06 AM *To:* parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>
*Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
>Yes, it needs action by both the Congress and the President of the US.
> The former will need to just amend some existing laws related to some
> international orgs and add ICANN somewhere in it. Simple work. And
>the President has to issue a decree under the Immunities Act.
So in the name of making ICANN more independent of the US government, you want to subject it to what would undoubtedly be a politically contentious and years-long process of legislation by the U.S. Congress (Republican-dominated) and would require the agreement a President whose platform vowed to never let ICANN be free of the U.S. government.
Really smart.
Does the word “backfire” have any meaning to non-Americans? If not, check out definition #2 here: https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q... <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.google.com_webhp-3F...>
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
ICANN is not a treaty-based organization,
This is not required.
nor is it conducting work normally carried out by an intergovernmental organization.
As shown by Jorge, this is not true.
Turning it into a treaty-based organization
No need to turn it into treaty based org to get US immunity.
would seem to me to violate the Bylaws-mandated Core Value that requires ICANN to */remain rooted in the private sector/*.
There is a linguistic problem here. Private sector is understood differently in the US than almost everywhere else. In the US, it is just to be outside government, which ICANN is. Outside the US, it mostly mean for profit sector. ICANN is indeed outside government(s), and there is no proposal to change that. But it is also equally a non profit . That also I hope is not intended to be changed.
In any case, whether non profit or for profit, everything is always subject to some kind of governmental jurisdiction. Being so subject does not change its non profit or even for profit nature. So the point is really moot.
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.
The community asked this group to consider the issue of US jurisdiction over ICANN. And a question can only be considered if it is open - -unless, sorry to use that word, we are all mutually and together fooling ourselves, and doing discussions that really have no meaning or purpose. I really hope this is not the case - -although, I must admit, despair often does arises that it may actually may be the case.
parminder
*From:*ws2-jurisdiction-bounces@icann.org <mailto: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> <mailto:gregshatanipc@gmail.com> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> <mailto: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.____
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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.____
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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.____
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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____
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Paul____
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Paul Rosenzweig____
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
<mailto:paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>>____
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<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=>>____
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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____
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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>____
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VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739> <tel:+1%20202-738-1739>____
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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) . ____ > 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.____
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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.____
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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.____
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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____
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Paul____
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Paul Rosenzweig____
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
<mailto:paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>>____
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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____
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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>
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VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739> <tel:+1%20202-738-1739>____
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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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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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If we assume for the moment that these pose a threat to ICANN as a practical matter, there would be the same or similar problems if ICANN was principally headquartered in other jurisdictions. So, I think the question comes down to this: 1. Given the fact that laws vary from nation to nation, and that any nation that has effective jurisdiction over ICANN may attempt to enforce its laws via ICANN, do the benefits of constituting ICANN as an international organization in with privileges and immunities in a particular jurisdiction outside the US outweigh the disadvantages of doing so? (My read as a US lawyer is that ICANN would not qualify for such status under the US statute.) In weighing the costs and benefits above, should we not also acknowledge that even if some country granted ICANN privileges and immunities, it would continue to have meaningful and substantial activities in other countries, including the United States, thus subjecting it national law anywhere it conducts sufficient business to create long-arm jurisdiction? Again, asked in my personal capacity. From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Wednesday, March 01, 2017 12:17 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Greg, thanks for the below framing. Let me try to put in my response to it. About (1) below, the problem has not just been a lack of discipline of people keeping on jumping ahead to likely remedies. It is as much about that clear problems have been identified, and they have neither been argued to not exist, not do we as a group accept them as problems. Ii is this that causes a stalemate. Lets just take one category of oft mentioned problems, of the OFAC variety. Many expressions of this category of problems have been stated here. No one has made the case that these problems do not exist -- if there is any such case I am happy to hear it. . But neither we, as a group, have accepted them as being problems with the current US jurisdiction of ICANN. That is what causes frustration. Rather than clearly accepting them as problems that must be addressed (and I must repeat, this is just one category of them), the argument we often hear is -- that may be as it is, but any alternative would be worse. What then is the option for those who present these problems than to to actually try to speak about possible alternatives, and how they can work and not in fact be worse than the current situation?! Another category of problems is with regard to the known seizure of dotcom domains by US custom authorities for alleged IP violations by forcing verisign to act as per their orders. For a gTLD, the order will simply be directed at ICANN. No one has shown us why and how would US customs treat ICANN differently than verisign, in pursuance of what it considers as their legal duty. These seizures by US Customs of domain names for alleged IP violation, by ordering US organisations that allot and control them, also directly shows that any other US agency will do so a similar thing in due enforcement of its mandate. No argument has been forthcoming why this would not be so. Then, we already have US courts having exerted their jurisdiction over the question whether ICANN's allocation of domains names is lawful or not (as per US law). This act of exerting jurisdiction is a problem enough, for the global public not contributing to US law, and not willing to be dictated by it, whatever be the final decision by these courts. All these are problems enough - these are not small matters. Are we ready to list them as problems accepted by the group to be so, whether or not there are solutions for them or not, including whether any proposed solution is better or worse then the current situation? This is the question to the group and the chairs. Doing that would be going by the workplan of identifying problems first before we move to plausible solutions. The questionnaire we sent out is just one input into the exercise of identifying and listing problems, it is not the whole exercise. I think we clearly agreed to this. The information that we may receive will complement all that which has already been contributing in many discussion in this group. Having said this, I agree with you that at the present stage it is best that we moved forward with your option 2. parminder On Tuesday 28 February 2017 10:02 PM, Greg Shatan wrote: All, Jorge touches on an important point in terms of our working method: "immunities and privileges are something to be discussed if need be under possible remedies to identified problems." That reflects the working method adopted by the group. Nonetheless, this discussion of "immunity" has cropped up several times before the Subgroup has identified any problem supported by the Subgroup that calls for immunity as a possible remedy. Sometimes (as now) these discussions are at significant length and seem to take up much of the working energy of the Subgroup. At this point, we can do one of two things: (1) Suspend any further discussion of immunity unless and until the Subgroup identifies a problem that calls for immunity as a plausible remedy to that problem. Problems can be "identified" from items in any of several sources: proposals from participants in the Subgroup, Questionnaire responses, the review of ICANN's litigation, or possibly ICANN Legal's responses to our questions. An item should not be considered an "identified problem" until the Subgroup supports that designation (i.e., an item is proposed and discusse and the Subgroup supports designating it as a problem for purposes of this Subgroup). (2) Directly consider and resolve the threshold question of whether immunity can and should be a remedy that this Subgroup would recommend. This question needs to be answered before we move, if at all, to "subsidiary questions" such as "Is immunity available to ICANN?", "How does one get such immunity?", "What does such immunity actually cover?", "What are the consequences of such immunity?", "Can this immunity be customized in some fashion?", "Can such immunity be waived by ICANN (either on a case-by-case basis or generally)?", "What are the conseqences of such waiver?," "How can such immunity be challenged or revoked?", "How would these questions be answered differently under the laws of the US and under the laws of a selected set of other jurisdiction?", etc. If we decide now that immunity is not a remedy this Subgroup would recommend, these other questions do not need to be considered. If we decide that immunity is a remedy this Subgroup would potentially recommend, then we can seek answers to those subsidiary questions in an organized process of the Subgroup, including requesting legal advice. Option 1 is one that we've tried, but it has not succeeded (at least not for very long). (As Mark Twain once said, "Quitting smoking is easy. I've done it hundreds of times."). If we decide to re-try Option 1, then it will need to be strictly adhered to (and enforced, if need be). Option 2 is one we have flirted with but have never fully committed to (due to attempts to adhere to Option 1, on the one hand, and the tendency to mix this threshold question in with the subsidiary questions, on the other hand). Escalating these email threads and informal discussions to a focused Subgroup discussion and resolution of just the threshold question could greatly benefit this Subgroup. If we can answer this threshold question now, then we can either (if we answer "no") put the immunity question to rest for this Subgroup; or (if we answer yes), we can suspend further discussions of the "subsidiary questions" until we identify a problem that calls for immunity as a plausible remedy. Either way, we will be able to move past the immunity question and devote our current working energy to the litigation review and analysis, the Questionnaire response review, identification and discussion of potential problems for consideration by the Subgroup, and consideration of the answers from ICANN Legal (when received). Given how far and how often we have gone down the path of the "immunity discussion" in some form, and since we may actually be honing in on an answer to this threshold question, I suggest that the Subgroup strongly consider Option 2. I look forward to your thoughts. Greg On Tue, Feb 28, 2017 at 3:42 AM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> wrote: Dear Becky,y Apart from possible initial discussion during the very early Frankfurt F2F meetings (February 2015... I wasn't in Frankfurt, but I don't recall that this issue had been really discussed in depth and less excluded from the ws2 work on "jurisdiction"), I guess we would need some clear basis in the work stream 1 recommendations, which are the ones which laid down our community-wide agreements and defined the scope of work for work stream 2. My feeling is that no decision to exclude was taken, that we still have to look into potential problems (on the basis of the ongoing fact-finding exercises) and that immunities and privileges are something to be discussed if need be under possible remedies to identified problems. Kind regards Jorge Von: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] Im Auftrag von Burr, Becky Gesendet: Montag, 27. Februar 2017 18:51 An: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Sure, will have to go back through the F2F meeting transcript, but I think the discussion took place in the first F2F meeting in Frankfurt in January 2015, with one of the outside experts who was pushing the idea From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Monday, February 27, 2017 11:38 AM To: Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Cc: Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>>; ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>>; parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction On 27 Feb 2017 22:26, "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote:. My larger point remains - this question (re privileges and immunities) was asked and answered in WS1. SO: I for one would appreciate a reference to this for the record so I can confirm if we are talking about similar context. Would you mind providing a reference where the question and response was documented Becky? Thanks From: 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 Mueller, Milton L Sent: Saturday, February 25, 2017 10:06 AM To: parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Yes, it needs action by both the Congress and the President of the US. The former will need to just amend some existing laws related to some international orgs and add ICANN somewhere in it. Simple work. And the President has to issue a decree under the Immunities Act.
So in the name of making ICANN more independent of the US government, you want to subject it to what would undoubtedly be a politically contentious and years-long process of legislation by the U.S. Congress (Republican-dominated) and would require the agreement a President whose platform vowed to never let ICANN be free of the U.S. government. Really smart. Does the word "backfire" have any meaning to non-Americans? If not, check out definition #2 here: https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=backfire+definition&*<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.google.com_webhp-3Fsourceid-3Dchrome-2Dinstant-26ion-3D1-26espv-3D2-26ie-3DUTF-2D8-23q-3Dbackfire-2Bdefinition-26-2A&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=lFzxyNZsqPq3dQCf2tQLLZwXRtWJNr01a16Lb6Zo_d8&s=2vjNdjcujIA_f13AAKVmN8mF_RYRvQZJ-bBgxoQ4Dd8&e=> Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology ICANN is not a treaty-based organization, This is not required. nor is it conducting work normally carried out by an intergovernmental organization. As shown by Jorge, this is not true. Turning it into a treaty-based organization No need to turn it into treaty based org to get US immunity. would seem to me to violate the Bylaws-mandated Core Value that requires ICANN to remain rooted in the private sector. There is a linguistic problem here. Private sector is understood differently in the US than almost everywhere else. In the US, it is just to be outside government, which ICANN is. Outside the US, it mostly mean for profit sector. ICANN is indeed outside government(s), and there is no proposal to change that. But it is also equally a non profit . That also I hope is not intended to be changed. In any case, whether non profit or for profit, everything is always subject to some kind of governmental jurisdiction. Being so subject does not change its non profit or even for profit nature. So the point is really moot. 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. The community asked this group to consider the issue of US jurisdiction over ICANN. And a question can only be considered if it is open - -unless, sorry to use that word, we are all mutually and together fooling ourselves, and doing discussions that really have no meaning or purpose. I really hope this is not the case - -although, I must admit, despair often does arises that it may actually may be the case. parminder From: ws2-jurisdiction-bounces@icann.org<mailto: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><mailto:gregshatanipc@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org><mailto: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>____ 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....> <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:*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....> <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:*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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> 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Becky, apologies for the enormous delay in responding. Please see inline.. On Wednesday 01 March 2017 08:05 PM, Burr, Becky wrote:
If we assume for the moment that these pose a threat to ICANN as a practical matter, there would be the same or similar problems if ICANN was principally headquartered in other jurisdictions.
These issues will not exist either (1) if ICANN works under intentional law and not any national law, or (2) ICANN even as registered under national law (US for instance ) is given jurisdictional immunity. (1) is the more perfect and sustainable (and democratic) solution, but it would take time, and therefore at the present it is worth considering and focussing on (2).
So, I think the question comes down to this:
1. Given the fact that laws vary from nation to nation, and that any nation that has effective jurisdiction over ICANN may attempt to enforce its laws via ICANN, do the benefits of constituting ICANN as an international organization in with privileges and immunities in a particular jurisdiction outside the US outweigh the disadvantages of doing so?
Sure, this is a good assessment to be done collectively. What do you (or others) think are the disadvantages to of such an arrangements?
(My read as a US lawyer is that ICANN would not qualify for such status under the US statute.)
Why when International Fertilizer and Development Corp can get it ICANN cant -- if may require putting its name in an existign legislation by a samll amendment perhaps, but that is all Why you say it cannot, can you please elaborate. I have asked a number of times that we seek "nuetral outside legal advice on this point. I think we must, as a key possible direction for us to move.
In weighing the costs and benefits above, should we not also acknowledge that even if some country granted ICANN privileges and immunities, it would continue to have meaningful and substantial activities in other countries, including the United States, thus subjecting it national law anywhere it conducts sufficient business to create long-arm jurisdiction?
This has been discussed several times. As you have never ever heard of Indian law and courts taking on ICANN (unlike US which often do) the fact is that a jurisdiction where an entity is not legally incorporated (or is incorporated but provided legal immunities) has very little legal remit on its functioning. In any case, at least all countries have a similar remit, and therefore that is not such a problem. It is the enormous inequality which is the problem - between US's legal control over ICANN and those of other jurisdictions (which is very little) . parminder
Again, asked in my personal capacity.
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Wednesday, March 01, 2017 12:17 AM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Greg, thanks for the below framing. Let me try to put in my response to it.
About (1) below, the problem has not just been a lack of discipline of people keeping on jumping ahead to likely remedies. It is as much about that clear problems have been identified, and they have neither been argued to not exist, not do we as a group accept them as problems. Ii is this that causes a stalemate. Lets just take one category of oft mentioned problems, of the OFAC variety. Many expressions of this category of problems have been stated here. No one has made the case that these problems do not exist -- if there is any such case I am happy to hear it. . But neither we, as a group, have accepted them as being problems with the current US jurisdiction of ICANN. That is what causes frustration. Rather than clearly accepting them as problems that must be addressed (and I must repeat, this is just one category of them), the argument we often hear is -- that may be as it is, but any alternative would be worse. What then is the option for those who present these problems than to to actually try to speak about possible alternatives, and how they can work and not in fact be worse than the current situation?!
Another category of problems is with regard to the known seizure of dotcom domains by US custom authorities for alleged IP violations by forcing verisign to act as per their orders. For a gTLD, the order will simply be directed at ICANN. No one has shown us why and how would US customs treat ICANN differently than verisign, in pursuance of what it considers as their legal duty.
These seizures by US Customs of domain names for alleged IP violation, by ordering US organisations that allot and control them, also directly shows that any other US agency will do so a similar thing in due enforcement of its mandate. No argument has been forthcoming why this would not be so.
Then, we already have US courts having exerted their jurisdiction over the question whether ICANN's allocation of domains names is lawful or not (as per US law). This act of exerting jurisdiction is a problem enough, for the global public not contributing to US law, and not willing to be dictated by it, whatever be the final decision by these courts.
All these are problems enough - these are not small matters. Are we ready to list them as problems accepted by the group to be so, whether or not there are solutions for them or not, including whether any proposed solution is better or worse then the current situation? This is the question to the group and the chairs. Doing that would be going by the workplan of identifying problems first before we move to plausible solutions. The questionnaire we sent out is just one input into the exercise of identifying and listing problems, it is not the whole exercise. I think we clearly agreed to this. The information that we may receive will complement all that which has already been contributing in many discussion in this group.
Having said this, I agree with you that at the present stage it is best that we moved forward with your option 2.
parminder
On Tuesday 28 February 2017 10:02 PM, Greg Shatan wrote:
All,
Jorge touches on an important point in terms of our working method: "immunities and privileges are something to be discussed if need be *under possible remedies to identified problems." *
That reflects the working method adopted by the group. Nonetheless, this discussion of "immunity" has cropped up several times before the Subgroup has identified any problem supported by the Subgroup that calls for immunity as a possible remedy. Sometimes (as now) these discussions are at significant length and seem to take up much of the working energy of the Subgroup.
At this point, we can do one of two things:
(1) *Suspend any further discussion of immunity unless and until the Subgroup identifies a problem that calls for immunity as a plausible remedy to that problem*. Problems can be "identified" from items in any of several sources: proposals from participants in the Subgroup, Questionnaire responses, the review of ICANN's litigation, or possibly ICANN Legal's responses to our questions. An item should not be considered an "identified problem" until the Subgroup supports that designation (i.e., an item is proposed and discusse and the Subgroup supports designating it as a problem for purposes of this Subgroup).
(2) *Directly consider and resolve the threshold question of whether immunity can and should be a remedy that this Subgroup would recommend. *This question needs to be answered before we move, if at all, to "subsidiary questions" such as "Is immunity available to ICANN?", "How does one get such immunity?", "What does such immunity actually cover?", "What are the consequences of such immunity?", "Can this immunity be customized in some fashion?", "Can such immunity be waived by ICANN (either on a case-by-case basis or generally)?", "What are the conseqences of such waiver?," "How can such immunity be challenged or revoked?", "How would these questions be answered differently under the laws of the US and under the laws of a selected set of other jurisdiction?", etc. *If we decide now that immunity is not a remedy this Subgroup would recommend, these other questions do not need to be considered. *If we decide that immunity is a remedy this Subgroup would potentially recommend, then we can seek answers to those subsidiary questions in an organized process of the Subgroup, including requesting legal advice.
Option 1 is one that we've tried, but it has not succeeded (at least not for very long). (As Mark Twain once said, "Quitting smoking is easy. I've done it hundreds of times."). If we decide to re-try Option 1, then it will need to be strictly adhered to (and enforced, if need be).
Option 2 is one we have flirted with but have never fully committed to (due to attempts to adhere to Option 1, on the one hand, and the tendency to mix this threshold question in with the subsidiary questions, on the other hand). Escalating these email threads and informal discussions to a focused Subgroup discussion and resolution of just the threshold question could greatly benefit this Subgroup. If we can answer this threshold question now, then we can either (if we answer "no") put the immunity question to rest for this Subgroup; or (if we answer yes), we can suspend further discussions of the "subsidiary questions" until we identify a problem that calls for immunity as a plausible remedy.
Either way, we will be able to move past the immunity question and devote our current working energy to the litigation review and analysis, the Questionnaire response review, identification and discussion of potential problems for consideration by the Subgroup, and consideration of the answers from ICANN Legal (when received).
*Given how far and how often we have gone down the path of the "immunity discussion" in some form, and since we may actually be honing in on an answer to this threshold question, I suggest that the Subgroup strongly consider Option 2.*
I look forward to your thoughts.
Greg
On Tue, Feb 28, 2017 at 3:42 AM <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>> wrote:
Dear Becky,y
Apart from possible initial discussion during the very early Frankfurt F2F meetings (February 2015… I wasn’t in Frankfurt, but I don’t recall that this issue had been really discussed in depth and less excluded from the ws2 work on “jurisdiction”), I guess we would need some clear basis in the work stream 1 recommendations, which are the ones which laid down our community-wide agreements and defined the scope of work for work stream 2.
My feeling is that no decision to exclude was taken, that we still have to look into potential problems (on the basis of the ongoing fact-finding exercises) and that immunities and privileges are something to be discussed if need be under possible remedies to identified problems.
Kind regards
Jorge
*Von:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *Im Auftrag von *Burr, Becky *Gesendet:* Montag, 27. Februar 2017 18:51 *An:* Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> *Betreff:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Sure, will have to go back through the F2F meeting transcript, but I think the discussion took place in the first F2F meeting in Frankfurt in January 2015, with one of the outside experts who was pushing the idea
*From:*Seun Ojedeji [mailto:seun.ojedeji@gmail.com] *Sent:* Monday, February 27, 2017 11:38 AM *To:* Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> *Cc:* Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>>; ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>>; parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
On 27 Feb 2017 22:26, "Burr, Becky" <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> wrote:.
My larger point remains – this question (re privileges and immunities) was asked and answered in WS1.
SO: I for one would appreciate a reference to this for the record so I can confirm if we are talking about similar context. Would you mind providing a reference where the question and response was documented Becky?
Thanks
*From:*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 *Mueller, Milton L *Sent:* Saturday, February 25, 2017 10:06 AM *To:* parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>
*Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
>Yes, it needs action by both the Congress and the President of the US.
> The former will need to just amend some existing laws related to some
> international orgs and add ICANN somewhere in it. Simple work. And
>the President has to issue a decree under the Immunities Act.
So in the name of making ICANN more independent of the US government, you want to subject it to what would undoubtedly be a politically contentious and years-long process of legislation by the U.S. Congress (Republican-dominated) and would require the agreement a President whose platform vowed to never let ICANN be free of the U.S. government.
Really smart.
Does the word “backfire” have any meaning to non-Americans? If not, check out definition #2 here: https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q... <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.google.com_webhp-3F...>
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
ICANN is not a treaty-based organization,
This is not required.
nor is it conducting work normally carried out by an intergovernmental organization.
As shown by Jorge, this is not true.
Turning it into a treaty-based organization
No need to turn it into treaty based org to get US immunity.
would seem to me to violate the Bylaws-mandated Core Value that requires ICANN to */remain rooted in the private sector/*.
There is a linguistic problem here. Private sector is understood differently in the US than almost everywhere else. In the US, it is just to be outside government, which ICANN is. Outside the US, it mostly mean for profit sector. ICANN is indeed outside government(s), and there is no proposal to change that. But it is also equally a non profit . That also I hope is not intended to be changed.
In any case, whether non profit or for profit, everything is always subject to some kind of governmental jurisdiction. Being so subject does not change its non profit or even for profit nature. So the point is really moot.
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.
The community asked this group to consider the issue of US jurisdiction over ICANN. And a question can only be considered if it is open - -unless, sorry to use that word, we are all mutually and together fooling ourselves, and doing discussions that really have no meaning or purpose. I really hope this is not the case - -although, I must admit, despair often does arises that it may actually may be the case.
parminder
*From:*ws2-jurisdiction-bounces@icann.org <mailto: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> <mailto:gregshatanipc@gmail.com> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> <mailto: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>____
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...>
<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>____
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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) . ____ > 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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My PGP Key:
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<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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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...>
<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) . ____
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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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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<https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____
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*Greg Shatan *C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>
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Dear Greg I understand how tiring some debates may be. However from a logical viewpoint our agreed approach (1) is the one which is consistent and would allow us to tackle issues in the right order, providing the community with more solid outcomes. Besides I would be very reluctant to start over again with such scope-related discussions, which usually end up in a chicken and egg situation. Let's all be patient and tackle the next step which is fact-finding... So to say we are in "discovery" and we cannot rush into "summary judgment"... regards Jorge ________________________________ Von: Greg Shatan <gregshatanipc@gmail.com> Datum: 28. Februar 2017 um 17:32:24 MEZ An: Becky.Burr@neustar.biz <Becky.Burr@neustar.biz>, seun.ojedeji@gmail.com <seun.ojedeji@gmail.com>, Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch> Cc: ws2-jurisdiction@icann.org <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction All, Jorge touches on an important point in terms of our working method: "immunities and privileges are something to be discussed if need be under possible remedies to identified problems." That reflects the working method adopted by the group. Nonetheless, this discussion of "immunity" has cropped up several times before the Subgroup has identified any problem supported by the Subgroup that calls for immunity as a possible remedy. Sometimes (as now) these discussions are at significant length and seem to take up much of the working energy of the Subgroup. At this point, we can do one of two things: (1) Suspend any further discussion of immunity unless and until the Subgroup identifies a problem that calls for immunity as a plausible remedy to that problem. Problems can be "identified" from items in any of several sources: proposals from participants in the Subgroup, Questionnaire responses, the review of ICANN's litigation, or possibly ICANN Legal's responses to our questions. An item should not be considered an "identified problem" until the Subgroup supports that designation (i.e., an item is proposed and discusse and the Subgroup supports designating it as a problem for purposes of this Subgroup). (2) Directly consider and resolve the threshold question of whether immunity can and should be a remedy that this Subgroup would recommend. This question needs to be answered before we move, if at all, to "subsidiary questions" such as "Is immunity available to ICANN?", "How does one get such immunity?", "What does such immunity actually cover?", "What are the consequences of such immunity?", "Can this immunity be customized in some fashion?", "Can such immunity be waived by ICANN (either on a case-by-case basis or generally)?", "What are the conseqences of such waiver?," "How can such immunity be challenged or revoked?", "How would these questions be answered differently under the laws of the US and under the laws of a selected set of other jurisdiction?", etc. If we decide now that immunity is not a remedy this Subgroup would recommend, these other questions do not need to be considered. If we decide that immunity is a remedy this Subgroup would potentially recommend, then we can seek answers to those subsidiary questions in an organized process of the Subgroup, including requesting legal advice. Option 1 is one that we've tried, but it has not succeeded (at least not for very long). (As Mark Twain once said, "Quitting smoking is easy. I've done it hundreds of times."). If we decide to re-try Option 1, then it will need to be strictly adhered to (and enforced, if need be). Option 2 is one we have flirted with but have never fully committed to (due to attempts to adhere to Option 1, on the one hand, and the tendency to mix this threshold question in with the subsidiary questions, on the other hand). Escalating these email threads and informal discussions to a focused Subgroup discussion and resolution of just the threshold question could greatly benefit this Subgroup. If we can answer this threshold question now, then we can either (if we answer "no") put the immunity question to rest for this Subgroup; or (if we answer yes), we can suspend further discussions of the "subsidiary questions" until we identify a problem that calls for immunity as a plausible remedy. Either way, we will be able to move past the immunity question and devote our current working energy to the litigation review and analysis, the Questionnaire response review, identification and discussion of potential problems for consideration by the Subgroup, and consideration of the answers from ICANN Legal (when received). Given how far and how often we have gone down the path of the "immunity discussion" in some form, and since we may actually be honing in on an answer to this threshold question, I suggest that the Subgroup strongly consider Option 2. I look forward to your thoughts. Greg On Tue, Feb 28, 2017 at 3:42 AM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> wrote: Dear Becky,y Apart from possible initial discussion during the very early Frankfurt F2F meetings (February 2015… I wasn’t in Frankfurt, but I don’t recall that this issue had been really discussed in depth and less excluded from the ws2 work on “jurisdiction”), I guess we would need some clear basis in the work stream 1 recommendations, which are the ones which laid down our community-wide agreements and defined the scope of work for work stream 2. My feeling is that no decision to exclude was taken, that we still have to look into potential problems (on the basis of the ongoing fact-finding exercises) and that immunities and privileges are something to be discussed if need be under possible remedies to identified problems. Kind regards Jorge Von: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] Im Auftrag von Burr, Becky Gesendet: Montag, 27. Februar 2017 18:51 An: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Sure, will have to go back through the F2F meeting transcript, but I think the discussion took place in the first F2F meeting in Frankfurt in January 2015, with one of the outside experts who was pushing the idea From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Monday, February 27, 2017 11:38 AM To: Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Cc: Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>>; ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>>; parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction On 27 Feb 2017 22:26, "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote:. My larger point remains – this question (re privileges and immunities) was asked and answered in WS1. SO: I for one would appreciate a reference to this for the record so I can confirm if we are talking about similar context. Would you mind providing a reference where the question and response was documented Becky? Thanks From: 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 Mueller, Milton L Sent: Saturday, February 25, 2017 10:06 AM To: parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Yes, it needs action by both the Congress and the President of the US.
The former will need to just amend some existing laws related to some
international orgs and add ICANN somewhere in it. Simple work. And
the President has to issue a decree under the Immunities Act.
So in the name of making ICANN more independent of the US government, you want to subject it to what would undoubtedly be a politically contentious and years-long process of legislation by the U.S. Congress (Republican-dominated) and would require the agreement a President whose platform vowed to never let ICANN be free of the U.S. government. Really smart. Does the word “backfire” have any meaning to non-Americans? If not, check out definition #2 here: https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=backfire+definition&*<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.google.com_webhp-3Fsourceid-3Dchrome-2Dinstant-26ion-3D1-26espv-3D2-26ie-3DUTF-2D8-23q-3Dbackfire-2Bdefinition-26-2A&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=lFzxyNZsqPq3dQCf2tQLLZwXRtWJNr01a16Lb6Zo_d8&s=2vjNdjcujIA_f13AAKVmN8mF_RYRvQZJ-bBgxoQ4Dd8&e=> Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology ICANN is not a treaty-based organization, This is not required. nor is it conducting work normally carried out by an intergovernmental organization. As shown by Jorge, this is not true. Turning it into a treaty-based organization No need to turn it into treaty based org to get US immunity. would seem to me to violate the Bylaws-mandated Core Value that requires ICANN to remain rooted in the private sector. There is a linguistic problem here. Private sector is understood differently in the US than almost everywhere else. In the US, it is just to be outside government, which ICANN is. Outside the US, it mostly mean for profit sector. ICANN is indeed outside government(s), and there is no proposal to change that. But it is also equally a non profit . That also I hope is not intended to be changed. In any case, whether non profit or for profit, everything is always subject to some kind of governmental jurisdiction. Being so subject does not change its non profit or even for profit nature. So the point is really moot. 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. The community asked this group to consider the issue of US jurisdiction over ICANN. And a question can only be considered if it is open - -unless, sorry to use that word, we are all mutually and together fooling ourselves, and doing discussions that really have no meaning or purpose. I really hope this is not the case - -although, I must admit, despair often does arises that it may actually may be the case. parminder From: ws2-jurisdiction-bounces@icann.org<mailto: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><mailto:gregshatanipc@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org><mailto: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>____ 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....> <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:*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....> <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:*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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=lFzxyNZsqPq3dQCf2tQLLZwXRtWJNr01a16Lb6Zo_d8&s=tc55Ch_YirCnbB-jJFF7yg-QW5vCtxAjnJrB0kpNZp4&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=BDl9R7sJbdeSjifdzPQw6zLp1q3vtgMWmW-wXQ0hrV4&s=1f6YFREa-qF1g6KUMiKsAK989VC121BpFuiZt4VwS-o&e=> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Greg Shatan C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>
Dear Jorge, We have a lot of known facts at hand which constitute problems relating to the issue of jurisdiction. There is no progress in the group about these known facts or problems. Are we to pin all our hopes on what comes out of the the questionnaire responses, which in any case is faultily designed to disallow a very large set of very important facts. I really do not think anything startling will come out of this exercise, much beyond what we all already know (other than some mundane specificities which may not be too germane to the overall political issue that is being considered here). It is IMHO vain to hope for some such thing magically emerging to illuminate our path forward. In any case, it was always agreed that the questionnaire is just one way to ascertain information, but not to be taken as the only valid source for it, or even the main one. What about all the "problems" that have routinely been raised here, in this elist? Lets say, the questionnaire brings up nothing, or nothing new. The numerous problems that have been placed here by the group's members would not disappear just because of that. I dont see any sense in keeping postponing our real work. We all know there are a number of problems with US jurisdiction over ICANN (do you have any doubt?). We need to figure out, are these problems solvable, and solvable by means where the cure is worse than the original illness? That is the job of this group. Earlier we abandon going around in circles without getting to the meat of the matter the better it would be. /*I would like us to *//*go for*//*option 2 listed by Greg, whereby we begin simultaneously to deal with the "solutions" side, which of course does not stop the process of getting in*//*formation about*//*the "probl*//*ems", over and above the information that we*//*already have. */ Regards, parminder On Wednesday 01 March 2017 11:52 AM, Jorge.Cancio@bakom.admin.ch wrote:
Dear Greg I understand how tiring some debates may be. However from a logical viewpoint our agreed approach (1) is the one which is consistent and would allow us to tackle issues in the right order, providing the community with more solid outcomes. Besides I would be very reluctant to start over again with such scope-related discussions, which usually end up in a chicken and egg situation. Let's all be patient and tackle the next step which is fact-finding... So to say we are in "discovery" and we cannot rush into "summary judgment"... regards Jorge
________________________________
Von: Greg Shatan <gregshatanipc@gmail.com> Datum: 28. Februar 2017 um 17:32:24 MEZ An: Becky.Burr@neustar.biz <Becky.Burr@neustar.biz>, seun.ojedeji@gmail.com <seun.ojedeji@gmail.com>, Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch> Cc: ws2-jurisdiction@icann.org <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
All,
Jorge touches on an important point in terms of our working method: "immunities and privileges are something to be discussed if need be under possible remedies to identified problems."
That reflects the working method adopted by the group. Nonetheless, this discussion of "immunity" has cropped up several times before the Subgroup has identified any problem supported by the Subgroup that calls for immunity as a possible remedy. Sometimes (as now) these discussions are at significant length and seem to take up much of the working energy of the Subgroup.
At this point, we can do one of two things:
(1) Suspend any further discussion of immunity unless and until the Subgroup identifies a problem that calls for immunity as a plausible remedy to that problem. Problems can be "identified" from items in any of several sources: proposals from participants in the Subgroup, Questionnaire responses, the review of ICANN's litigation, or possibly ICANN Legal's responses to our questions. An item should not be considered an "identified problem" until the Subgroup supports that designation (i.e., an item is proposed and discusse and the Subgroup supports designating it as a problem for purposes of this Subgroup).
(2) Directly consider and resolve the threshold question of whether immunity can and should be a remedy that this Subgroup would recommend. This question needs to be answered before we move, if at all, to "subsidiary questions" such as "Is immunity available to ICANN?", "How does one get such immunity?", "What does such immunity actually cover?", "What are the consequences of such immunity?", "Can this immunity be customized in some fashion?", "Can such immunity be waived by ICANN (either on a case-by-case basis or generally)?", "What are the conseqences of such waiver?," "How can such immunity be challenged or revoked?", "How would these questions be answered differently under the laws of the US and under the laws of a selected set of other jurisdiction?", etc. If we decide now that immunity is not a remedy this Subgroup would recommend, these other questions do not need to be considered. If we decide that immunity is a remedy this Subgroup would potentially recommend, then we can seek answers to those subsidiary questions in an organized process of the Subgroup, including requesting legal advice.
Option 1 is one that we've tried, but it has not succeeded (at least not for very long). (As Mark Twain once said, "Quitting smoking is easy. I've done it hundreds of times."). If we decide to re-try Option 1, then it will need to be strictly adhered to (and enforced, if need be).
Option 2 is one we have flirted with but have never fully committed to (due to attempts to adhere to Option 1, on the one hand, and the tendency to mix this threshold question in with the subsidiary questions, on the other hand). Escalating these email threads and informal discussions to a focused Subgroup discussion and resolution of just the threshold question could greatly benefit this Subgroup. If we can answer this threshold question now, then we can either (if we answer "no") put the immunity question to rest for this Subgroup; or (if we answer yes), we can suspend further discussions of the "subsidiary questions" until we identify a problem that calls for immunity as a plausible remedy.
Either way, we will be able to move past the immunity question and devote our current working energy to the litigation review and analysis, the Questionnaire response review, identification and discussion of potential problems for consideration by the Subgroup, and consideration of the answers from ICANN Legal (when received).
Given how far and how often we have gone down the path of the "immunity discussion" in some form, and since we may actually be honing in on an answer to this threshold question, I suggest that the Subgroup strongly consider Option 2.
I look forward to your thoughts.
Greg
On Tue, Feb 28, 2017 at 3:42 AM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> wrote:
Dear Becky,y
Apart from possible initial discussion during the very early Frankfurt F2F meetings (February 2015… I wasn’t in Frankfurt, but I don’t recall that this issue had been really discussed in depth and less excluded from the ws2 work on “jurisdiction”), I guess we would need some clear basis in the work stream 1 recommendations, which are the ones which laid down our community-wide agreements and defined the scope of work for work stream 2.
My feeling is that no decision to exclude was taken, that we still have to look into potential problems (on the basis of the ongoing fact-finding exercises) and that immunities and privileges are something to be discussed if need be under possible remedies to identified problems.
Kind regards
Jorge
Von: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] Im Auftrag von Burr, Becky Gesendet: Montag, 27. Februar 2017 18:51 An: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Sure, will have to go back through the F2F meeting transcript, but I think the discussion took place in the first F2F meeting in Frankfurt in January 2015, with one of the outside experts who was pushing the idea
From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Monday, February 27, 2017 11:38 AM To: Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Cc: Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>>; ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>>; parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
On 27 Feb 2017 22:26, "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote:.
My larger point remains – this question (re privileges and immunities) was asked and answered in WS1.
SO: I for one would appreciate a reference to this for the record so I can confirm if we are talking about similar context. Would you mind providing a reference where the question and response was documented Becky?
Thanks
From: 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 Mueller, Milton L Sent: Saturday, February 25, 2017 10:06 AM To: parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>
Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Yes, it needs action by both the Congress and the President of the US. The former will need to just amend some existing laws related to some international orgs and add ICANN somewhere in it. Simple work. And the President has to issue a decree under the Immunities Act. So in the name of making ICANN more independent of the US government, you want to subject it to what would undoubtedly be a politically contentious and years-long process of legislation by the U.S. Congress (Republican-dominated) and would require the agreement a President whose platform vowed to never let ICANN be free of the U.S. government.
Really smart.
Does the word “backfire” have any meaning to non-Americans? If not, check out definition #2 here: https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=backfire+definition&*<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.google.com_webhp-3Fsourceid-3Dchrome-2Dinstant-26ion-3D1-26espv-3D2-26ie-3DUTF-2D8-23q-3Dbackfire-2Bdefinition-26-2A&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=lFzxyNZsqPq3dQCf2tQLLZwXRtWJNr01a16Lb6Zo_d8&s=2vjNdjcujIA_f13AAKVmN8mF_RYRvQZJ-bBgxoQ4Dd8&e=>
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
ICANN is not a treaty-based organization,
This is not required.
nor is it conducting work normally carried out by an intergovernmental organization.
As shown by Jorge, this is not true.
Turning it into a treaty-based organization
No need to turn it into treaty based org to get US immunity.
would seem to me to violate the Bylaws-mandated Core Value that requires ICANN to remain rooted in the private sector.
There is a linguistic problem here. Private sector is understood differently in the US than almost everywhere else. In the US, it is just to be outside government, which ICANN is. Outside the US, it mostly mean for profit sector. ICANN is indeed outside government(s), and there is no proposal to change that. But it is also equally a non profit . That also I hope is not intended to be changed.
In any case, whether non profit or for profit, everything is always subject to some kind of governmental jurisdiction. Being so subject does not change its non profit or even for profit nature. So the point is really moot.
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.
The community asked this group to consider the issue of US jurisdiction over ICANN. And a question can only be considered if it is open - -unless, sorry to use that word, we are all mutually and together fooling ourselves, and doing discussions that really have no meaning or purpose. I really hope this is not the case - -although, I must admit, despair often does arises that it may actually may be the case.
parminder
From: ws2-jurisdiction-bounces@icann.org<mailto: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><mailto:gregshatanipc@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org><mailto: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____
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O: +1 (202) 547-0660<tel:%2B1%20%28202%29%20547-0660> <tel:+1%20202-547-0660>____
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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____
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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>>____
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VOIP: +1 (202) 738-1739<tel:%2B1%20%28202%29%20738-1739> <tel:+1%20202-738-1739>____
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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) . ____
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.____
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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.____
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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.____
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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____
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Paul____
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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....> <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=>>____
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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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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
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On Saturday 11 February 2017 02:16 PM, Nigel Roberts wrote:____
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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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Greg Shatan C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Regrets for meeting today. Strongly favor approach 2 We have been sidetracked for months now because some participants are insistent on out of scope answers. With respect Jorge "immunity" is in fact out of scope and utterly inconsistent with our mandate. It also is overwhelmingly rejected in response to Greg's survey. And finally it is not realistic. We might as well consider incorporation on Mars. Let us stop spinning our wheels. Paul -- Paul Rosenzweig Sent from myMail app for Android Wednesday, 01 March 2017, 01:22AM -05:00 from Jorge.Cancio@bakom.admin.ch :
Dear Greg I understand how tiring some debates may be. However from a logical viewpoint our agreed approach (1) is the one which is consistent and would allow us to tackle issues in the right order, providing the community with more solid outcomes. Besides I would be very reluctant to start over again with such scope-related discussions, which usually end up in a chicken and egg situation. Let's all be patient and tackle the next step which is fact-finding... So to say we are in "discovery" and we cannot rush into "summary judgment"... regards Jorge
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Von: Greg Shatan < gregshatanipc@gmail.com > Datum: 28. Februar 2017 um 17:32:24 MEZ An: Becky.Burr@neustar.biz < Becky.Burr@neustar.biz >, seun.ojedeji@gmail.com < seun.ojedeji@gmail.com >, Cancio Jorge BAKOM < Jorge.Cancio@bakom.admin.ch > Cc: ws2-jurisdiction@icann.org < ws2-jurisdiction@icann.org > Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
All,
Jorge touches on an important point in terms of our working method: "immunities and privileges are something to be discussed if need be under possible remedies to identified problems."
That reflects the working method adopted by the group. Nonetheless, this discussion of "immunity" has cropped up several times before the Subgroup has identified any problem supported by the Subgroup that calls for immunity as a possible remedy. Sometimes (as now) these discussions are at significant length and seem to take up much of the working energy of the Subgroup.
At this point, we can do one of two things:
(1) Suspend any further discussion of immunity unless and until the Subgroup identifies a problem that calls for immunity as a plausible remedy to that problem. Problems can be "identified" from items in any of several sources: proposals from participants in the Subgroup, Questionnaire responses, the review of ICANN's litigation, or possibly ICANN Legal's responses to our questions. An item should not be considered an "identified problem" until the Subgroup supports that designation (i.e., an item is proposed and discusse and the Subgroup supports designating it as a problem for purposes of this Subgroup).
(2) Directly consider and resolve the threshold question of whether immunity can and should be a remedy that this Subgroup would recommend. This question needs to be answered before we move, if at all, to "subsidiary questions" such as "Is immunity available to ICANN?", "How does one get such immunity?", "What does such immunity actually cover?", "What are the consequences of such immunity?", "Can this immunity be customized in some fashion?", "Can such immunity be waived by ICANN (either on a case-by-case basis or generally)?", "What are the conseqences of such waiver?," "How can such immunity be challenged or revoked?", "How would these questions be answered differently under the laws of the US and under the laws of a selected set of other jurisdiction?", etc. If we decide now that immunity is not a remedy this Subgroup would recommend, these other questions do not need to be considered. If we decide that immunity is a remedy this Subgroup would potentially recommend, then we can seek answers to those subsidiary questions in an organized process of the Subgroup, including requesting legal advice.
Option 1 is one that we've tried, but it has not succeeded (at least not for very long). (As Mark Twain once said, "Quitting smoking is easy. I've done it hundreds of times."). If we decide to re-try Option 1, then it will need to be strictly adhered to (and enforced, if need be).
Option 2 is one we have flirted with but have never fully committed to (due to attempts to adhere to Option 1, on the one hand, and the tendency to mix this threshold question in with the subsidiary questions, on the other hand). Escalating these email threads and informal discussions to a focused Subgroup discussion and resolution of just the threshold question could greatly benefit this Subgroup. If we can answer this threshold question now, then we can either (if we answer "no") put the immunity question to rest for this Subgroup; or (if we answer yes), we can suspend further discussions of the "subsidiary questions" until we identify a problem that calls for immunity as a plausible remedy.
Either way, we will be able to move past the immunity question and devote our current working energy to the litigation review and analysis, the Questionnaire response review, identification and discussion of potential problems for consideration by the Subgroup, and consideration of the answers from ICANN Legal (when received).
Given how far and how often we have gone down the path of the "immunity discussion" in some form, and since we may actually be honing in on an answer to this threshold question, I suggest that the Subgroup strongly consider Option 2.
I look forward to your thoughts.
Greg
On Tue, Feb 28, 2017 at 3:42 AM <Jorge.Cancio@bakom.admin.ch<mailto: Jorge.Cancio@bakom.admin.ch >> wrote:
Dear Becky,y
Apart from possible initial discussion during the very early Frankfurt F2F meetings (February 2015… I wasn’t in Frankfurt, but I don’t recall that this issue had been really discussed in depth and less excluded from the ws2 work on “jurisdiction”), I guess we would need some clear basis in the work stream 1 recommendations, which are the ones which laid down our community-wide agreements and defined the scope of work for work stream 2.
My feeling is that no decision to exclude was taken, that we still have to look into potential problems (on the basis of the ongoing fact-finding exercises) and that immunities and privileges are something to be discussed if need be under possible remedies to identified problems.
Kind regards
Jorge
Von: ws2-jurisdiction-bounces@icann.org<mailto: ws2-jurisdiction-bounces@icann.org > [mailto:ws2-jurisdiction-bounces@icann.org<mailto: ws2-jurisdiction-bounces@icann.org >] Im Auftrag von Burr, Becky Gesendet: Montag, 27. Februar 2017 18:51 An: Seun Ojedeji <seun.ojedeji@gmail.com<mailto: seun.ojedeji@gmail.com >> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org >> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Sure, will have to go back through the F2F meeting transcript, but I think the discussion took place in the first F2F meeting in Frankfurt in January 2015, with one of the outside experts who was pushing the idea
From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Monday, February 27, 2017 11:38 AM To: Burr, Becky <Becky.Burr@neustar.biz<mailto: Becky.Burr@neustar.biz >> Cc: Mueller, Milton L <milton@gatech.edu<mailto: milton@gatech.edu >>; ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org >>; parminder <parminder@itforchange.net<mailto: parminder@itforchange.net >> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
On 27 Feb 2017 22:26, "Burr, Becky" <Becky.Burr@neustar.biz<mailto: Becky.Burr@neustar.biz >> wrote:.
My larger point remains – this question (re privileges and immunities) was asked and answered in WS1.
SO: I for one would appreciate a reference to this for the record so I can confirm if we are talking about similar context. Would you mind providing a reference where the question and response was documented Becky?
Thanks
From: 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 Mueller, Milton L Sent: Saturday, February 25, 2017 10:06 AM To: parminder <parminder@itforchange.net<mailto: parminder@itforchange.net >>; ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org >
Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Yes, it needs action by both the Congress and the President of the US.
The former will need to just amend some existing laws related to some
international orgs and add ICANN somewhere in it. Simple work. And
the President has to issue a decree under the Immunities Act.
So in the name of making ICANN more independent of the US government, you want to subject it to what would undoubtedly be a politically contentious and years-long process of legislation by the U.S. Congress (Republican-dominated) and would require the agreement a President whose platform vowed to never let ICANN be free of the U.S. government.
Really smart.
Does the word “backfire” have any meaning to non-Americans? If not, check out definition #2 here: https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q... < https://urldefense.proofpoint.com/v2/url?u=https-3A__www.google.com_webhp-3F... =>
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
ICANN is not a treaty-based organization,
This is not required.
nor is it conducting work normally carried out by an intergovernmental organization.
As shown by Jorge, this is not true.
Turning it into a treaty-based organization
No need to turn it into treaty based org to get US immunity.
would seem to me to violate the Bylaws-mandated Core Value that requires ICANN to remain rooted in the private sector.
There is a linguistic problem here. Private sector is understood differently in the US than almost everywhere else. In the US, it is just to be outside government, which ICANN is. Outside the US, it mostly mean for profit sector. ICANN is indeed outside government(s), and there is no proposal to change that. But it is also equally a non profit . That also I hope is not intended to be changed.
In any case, whether non profit or for profit, everything is always subject to some kind of governmental jurisdiction. Being so subject does not change its non profit or even for profit nature. So the point is really moot.
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.
The community asked this group to consider the issue of US jurisdiction over ICANN. And a question can only be considered if it is open - -unless, sorry to use that word, we are all mutually and together fooling ourselves, and doing discussions that really have no meaning or purpose. I really hope this is not the case - -although, I must admit, despair often does arises that it may actually may be the case.
parminder
From: ws2-jurisdiction-bounces@icann.org<mailto: 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 ><mailto: gregshatanipc@gmail.com > Cc: ws2-jurisdiction < ws2-jurisdiction@icann.org ><mailto: 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>____
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.... =>>____
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... => < https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 < https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks... =>>____
__ __
*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.... => < http://www.redbranchconsulting.com/ < https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.... =>>____
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... => < https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 < https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks... =>>____
____
*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.... =>>____
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... => < https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 < https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks... =>>____
__ __
*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.... => < http://www.redbranchconsulting.com/ < https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.... =>>____
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... => < https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 < https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks... =>>____
____
*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.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto: Ws2-jurisdiction@icann.org > <mailto:Ws2-jurisdiction@icann.org<mailto: Ws2-jurisdiction@icann.org >> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction < https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li... => < https://mm.icann.org/mailman/listinfo/ws2-jurisdiction < https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li... =>> ____
____
__ __
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto: Ws2-jurisdiction@icann.org > <mailto:Ws2-jurisdiction@icann.org<mailto: Ws2-jurisdiction@icann.org >> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction < https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li... => < https://mm.icann.org/mailman/listinfo/ws2-jurisdiction < https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li... =>>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto: Ws2-jurisdiction@icann.org > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction < https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li... =>
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 >> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction < https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li... => < https://mm.icann.org/mailman/listinfo/ws2-jurisdiction < https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li... =>> ____
____
__ __
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Greg Shatan C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc@gmail.com<mailto: gregshatanipc@gmail.com > _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Agree that immunity seems not realistic - regardless of this, we should finalize our fact-finding mission – see whether we have any problems to be solved, and if so, look at possible remedies – so +1 for (1)! Best, Finn Fra: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] På vegne af Paul Rosenzweig Sendt: 1. marts 2017 13:12 Til: Jorge.Cancio@bakom.admin.ch Cc: ws2-jurisdiction@icann.org Emne: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Regrets for meeting today. Strongly favor approach 2 We have been sidetracked for months now because some participants are insistent on out of scope answers. With respect Jorge "immunity" is in fact out of scope and utterly inconsistent with our mandate. It also is overwhelmingly rejected in response to Greg's survey. And finally it is not realistic. We might as well consider incorporation on Mars. Let us stop spinning our wheels. Paul -- Paul Rosenzweig Sent from myMail app for Android Wednesday, 01 March 2017, 01:22AM -05:00 from Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>: Dear Greg I understand how tiring some debates may be. However from a logical viewpoint our agreed approach (1) is the one which is consistent and would allow us to tackle issues in the right order, providing the community with more solid outcomes. Besides I would be very reluctant to start over again with such scope-related discussions, which usually end up in a chicken and egg situation. Let's all be patient and tackle the next step which is fact-finding... So to say we are in "discovery" and we cannot rush into "summary judgment"... regards Jorge ________________________________ Von: Greg Shatan <gregshatanipc@gmail.com</compose?To=gregshatanipc@gmail.com>> Datum: 28. Februar 2017 um 17:32:24 MEZ An: Becky.Burr@neustar.biz</compose?To=Becky.Burr@neustar.biz> <Becky.Burr@neustar.biz</compose?To=Becky.Burr@neustar.biz>>, seun.ojedeji@gmail.com</compose?To=seun.ojedeji@gmail.com> <seun.ojedeji@gmail.com</compose?To=seun.ojedeji@gmail.com>>, Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch</compose?To=Jorge.Cancio@bakom.admin.ch>> Cc: ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@icann.org> <ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction All, Jorge touches on an important point in terms of our working method: "immunities and privileges are something to be discussed if need be under possible remedies to identified problems." That reflects the working method adopted by the group. Nonetheless, this discussion of "immunity" has cropped up several times before the Subgroup has identified any problem supported by the Subgroup that calls for immunity as a possible remedy. Sometimes (as now) these discussions are at significant length and seem to take up much of the working energy of the Subgroup. At this point, we can do one of two things: (1) Suspend any further discussion of immunity unless and until the Subgroup identifies a problem that calls for immunity as a plausible remedy to that problem. Problems can be "identified" from items in any of several sources: proposals from participants in the Subgroup, Questionnaire responses, the review of ICANN's litigation, or possibly ICANN Legal's responses to our questions. An item should not be considered an "identified problem" until the Subgroup supports that designation (i.e., an item is proposed and discusse and the Subgroup supports designating it as a problem for purposes of this Subgroup). (2) Directly consider and resolve the threshold question of whether immunity can and should be a remedy that this Subgroup would recommend. This question needs to be answered before we move, if at all, to "subsidiary questions" such as "Is immunity available to ICANN?", "How does one get such immunity?", "What does such immunity actually cover?", "What are the consequences of such immunity?", "Can this immunity be customized in some fashion?", "Can such immunity be waived by ICANN (either on a case-by-case basis or generally)?", "What are the conseqences of such waiver?," "How can such immunity be challenged or revoked?", "How would these questions be answered differently under the laws of the US and under the laws of a selected set of other jurisdiction?", etc. If we decide now that immunity is not a remedy this Subgroup would recommend, these other questions do not need to be considered. If we decide that immunity is a remedy this Subgroup would potentially recommend, then we can seek answers to those subsidiary questions in an organized process of the Subgroup, including requesting legal advice. Option 1 is one that we've tried, but it has not succeeded (at least not for very long). (As Mark Twain once said, "Quitting smoking is easy. I've done it hundreds of times."). If we decide to re-try Option 1, then it will need to be strictly adhered to (and enforced, if need be). Option 2 is one we have flirted with but have never fully committed to (due to attempts to adhere to Option 1, on the one hand, and the tendency to mix this threshold question in with the subsidiary questions, on the other hand). Escalating these email threads and informal discussions to a focused Subgroup discussion and resolution of just the threshold question could greatly benefit this Subgroup. If we can answer this threshold question now, then we can either (if we answer "no") put the immunity question to rest for this Subgroup; or (if we answer yes), we can suspend further discussions of the "subsidiary questions" until we identify a problem that calls for immunity as a plausible remedy. Either way, we will be able to move past the immunity question and devote our current working energy to the litigation review and analysis, the Questionnaire response review, identification and discussion of potential problems for consideration by the Subgroup, and consideration of the answers from ICANN Legal (when received). Given how far and how often we have gone down the path of the "immunity discussion" in some form, and since we may actually be honing in on an answer to this threshold question, I suggest that the Subgroup strongly consider Option 2. I look forward to your thoughts. Greg On Tue, Feb 28, 2017 at 3:42 AM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch</compose?To=Jorge.Cancio@bakom.admin.ch>>> wrote: Dear Becky,y Apart from possible initial discussion during the very early Frankfurt F2F meetings (February 2015… I wasn’t in Frankfurt, but I don’t recall that this issue had been really discussed in depth and less excluded from the ws2 work on “jurisdiction”), I guess we would need some clear basis in the work stream 1 recommendations, which are the ones which laid down our community-wide agreements and defined the scope of work for work stream 2. My feeling is that no decision to exclude was taken, that we still have to look into potential problems (on the basis of the ongoing fact-finding exercises) and that immunities and privileges are something to be discussed if need be under possible remedies to identified problems. Kind regards Jorge Von: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@icann.org>> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@icann.org>>] Im Auftrag von Burr, Becky Gesendet: Montag, 27. Februar 2017 18:51 An: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com</compose?To=seun.ojedeji@gmail.com>>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@icann.org>>> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Sure, will have to go back through the F2F meeting transcript, but I think the discussion took place in the first F2F meeting in Frankfurt in January 2015, with one of the outside experts who was pushing the idea From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Monday, February 27, 2017 11:38 AM To: Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz</compose?To=Becky.Burr@neustar.biz>>> Cc: Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu</compose?To=milton@gatech.edu>>>; ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@icann.org>>>; parminder <parminder@itforchange.net<mailto:parminder@itforchange.net</compose?To=parminder@itforchange.net>>> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction On 27 Feb 2017 22:26, "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz</compose?To=Becky.Burr@neustar.biz>>> wrote:. My larger point remains – this question (re privileges and immunities) was asked and answered in WS1. SO: I for one would appreciate a reference to this for the record so I can confirm if we are talking about similar context. Would you mind providing a reference where the question and response was documented Becky? Thanks From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@icann.org>> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@icann.org>>] On Behalf Of Mueller, Milton L Sent: Saturday, February 25, 2017 10:06 AM To: parminder <parminder@itforchange.net<mailto:parminder@itforchange.net</compose?To=parminder@itforchange.net>>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Yes, it needs action by both the Congress and the President of the US.
The former will need to just amend some existing laws related to some
international orgs and add ICANN somewhere in it. Simple work. And
the President has to issue a decree under the Immunities Act.
So in the name of making ICANN more independent of the US government, you want to subject it to what would undoubtedly be a politically contentious and years-long process of legislation by the U.S. Congress (Republican-dominated) and would require the agreement a President whose platform vowed to never let ICANN be free of the U.S. government. Really smart. Does the word “backfire” have any meaning to non-Americans? If not, check out definition #2 here: https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=backfire+definition&*<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.google.com_webhp-3Fsourceid-3Dchrome-2Dinstant-26ion-3D1-26espv-3D2-26ie-3DUTF-2D8-23q-3Dbackfire-2Bdefinition-26-2A&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=lFzxyNZsqPq3dQCf2tQLLZwXRtWJNr01a16Lb6Zo_d8&s=2vjNdjcujIA_f13AAKVmN8mF_RYRvQZJ-bBgxoQ4Dd8&e=> Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology ICANN is not a treaty-based organization, This is not required. nor is it conducting work normally carried out by an intergovernmental organization. As shown by Jorge, this is not true. Turning it into a treaty-based organization No need to turn it into treaty based org to get US immunity. would seem to me to violate the Bylaws-mandated Core Value that requires ICANN to remain rooted in the private sector. There is a linguistic problem here. Private sector is understood differently in the US than almost everywhere else. In the US, it is just to be outside government, which ICANN is. Outside the US, it mostly mean for profit sector. ICANN is indeed outside government(s), and there is no proposal to change that. But it is also equally a non profit . That also I hope is not intended to be changed. In any case, whether non profit or for profit, everything is always subject to some kind of governmental jurisdiction. Being so subject does not change its non profit or even for profit nature. So the point is really moot. 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. The community asked this group to consider the issue of US jurisdiction over ICANN. And a question can only be considered if it is open - -unless, sorry to use that word, we are all mutually and together fooling ourselves, and doing discussions that really have no meaning or purpose. I really hope this is not the case - -although, I must admit, despair often does arises that it may actually may be the case. parminder From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@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</compose?To=gregshatanipc@gmail.com>><mailto:gregshatanipc@gmail.com</compose?To=gregshatanipc@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@icann.org>><mailto:ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@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</compose?To=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</compose?To=gregshatanipc@gmail.com>> On Tue, Feb 14, 2017 at 6:17 AM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com</compose?To=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</compose?To=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</compose?To=paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com</compose?To=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</compose?To=paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com</compose?To=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<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=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=> <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</compose?To=parminder@itforchange.net>> <mailto:parminder@itforchange.net<mailto:parminder@itforchange.net</compose?To=parminder@itforchange.net>>>] *Sent:* Sunday, February 12, 2017 12:54 AM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com</compose?To=paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com</compose?To=paul.rosenzweig@redbranchconsulting.com>>>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@icann.org>> <mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@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</compose?To=paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com</compose?To=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<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=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=> <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:*ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@icann.org>> <mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@icann.org>>> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@icann.org>> <mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@icann.org>>>] *On Behalf Of *parminder *Sent:* Saturday, February 11, 2017 8:46 AM *To:* ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@icann.org>> <mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@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</compose?To=paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com</compose?To=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</compose?To=paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com</compose?To=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<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=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=> <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</compose?To=parminder@itforchange.net>> <mailto:parminder@itforchange.net<mailto:parminder@itforchange.net</compose?To=parminder@itforchange.net>>>] *Sent:* Sunday, February 12, 2017 12:54 AM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com</compose?To=paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com</compose?To=paul.rosenzweig@redbranchconsulting.com>>>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@icann.org>> <mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@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</compose?To=paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com</compose?To=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<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=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=> <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:*ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@icann.org>> <mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@icann.org>>> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@icann.org>> <mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@icann.org>>>] *On Behalf Of *parminder *Sent:* Saturday, February 11, 2017 8:46 AM *To:* ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@icann.org>> <mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org</compose?To=Ws2%2djurisdiction@icann.org>> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org</compose?To=Ws2%2djurisdiction@icann.org>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org</compose?To=Ws2%2djurisdiction@icann.org>> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org</compose?To=Ws2%2djurisdiction@icann.org>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org</compose?To=Ws2%2djurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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</compose?To=Ws2%2djurisdiction@icann.org>> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org</compose?To=Ws2%2djurisdiction@icann.org>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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Dear Paul Could you elaborate on what you refer to with „Greg’s survey“? BTW I feel standards of behavior should be adhered to Regards Jorge Von: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Gesendet: Mittwoch, 1. März 2017 13:12 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch> Cc: ws2-jurisdiction@icann.org; seun.ojedeji@gmail.com; Becky.Burr@neustar.biz; gregshatanipc@gmail.com Betreff: Re[2]: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Regrets for meeting today. Strongly favor approach 2 We have been sidetracked for months now because some participants are insistent on out of scope answers. With respect Jorge "immunity" is in fact out of scope and utterly inconsistent with our mandate. It also is overwhelmingly rejected in response to Greg's survey. And finally it is not realistic. We might as well consider incorporation on Mars. Let us stop spinning our wheels. Paul -- Paul Rosenzweig Sent from myMail app for Android Wednesday, 01 March 2017, 01:22AM -05:00 from Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>: Dear Greg I understand how tiring some debates may be. However from a logical viewpoint our agreed approach (1) is the one which is consistent and would allow us to tackle issues in the right order, providing the community with more solid outcomes. Besides I would be very reluctant to start over again with such scope-related discussions, which usually end up in a chicken and egg situation. Let's all be patient and tackle the next step which is fact-finding... So to say we are in "discovery" and we cannot rush into "summary judgment"... regards Jorge ________________________________ Von: Greg Shatan <gregshatanipc@gmail.com</compose?To=gregshatanipc@gmail.com>> Datum: 28. Februar 2017 um 17:32:24 MEZ An: Becky.Burr@neustar.biz</compose?To=Becky.Burr@neustar.biz> <Becky.Burr@neustar.biz</compose?To=Becky.Burr@neustar.biz>>, seun.ojedeji@gmail.com</compose?To=seun.ojedeji@gmail.com> <seun.ojedeji@gmail.com</compose?To=seun.ojedeji@gmail.com>>, Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch</compose?To=Jorge.Cancio@bakom.admin.ch>> Cc: ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@icann.org> <ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction All, Jorge touches on an important point in terms of our working method: "immunities and privileges are something to be discussed if need be under possible remedies to identified problems." That reflects the working method adopted by the group. Nonetheless, this discussion of "immunity" has cropped up several times before the Subgroup has identified any problem supported by the Subgroup that calls for immunity as a possible remedy. Sometimes (as now) these discussions are at significant length and seem to take up much of the working energy of the Subgroup. At this point, we can do one of two things: (1) Suspend any further discussion of immunity unless and until the Subgroup identifies a problem that calls for immunity as a plausible remedy to that problem. Problems can be "identified" from items in any of several sources: proposals from participants in the Subgroup, Questionnaire responses, the review of ICANN's litigation, or possibly ICANN Legal's responses to our questions. An item should not be considered an "identified problem" until the Subgroup supports that designation (i.e., an item is proposed and discusse and the Subgroup supports designating it as a problem for purposes of this Subgroup). (2) Directly consider and resolve the threshold question of whether immunity can and should be a remedy that this Subgroup would recommend. This question needs to be answered before we move, if at all, to "subsidiary questions" such as "Is immunity available to ICANN?", "How does one get such immunity?", "What does such immunity actually cover?", "What are the consequences of such immunity?", "Can this immunity be customized in some fashion?", "Can such immunity be waived by ICANN (either on a case-by-case basis or generally)?", "What are the conseqences of such waiver?," "How can such immunity be challenged or revoked?", "How would these questions be answered differently under the laws of the US and under the laws of a selected set of other jurisdiction?", etc. If we decide now that immunity is not a remedy this Subgroup would recommend, these other questions do not need to be considered. If we decide that immunity is a remedy this Subgroup would potentially recommend, then we can seek answers to those subsidiary questions in an organized process of the Subgroup, including requesting legal advice. Option 1 is one that we've tried, but it has not succeeded (at least not for very long). (As Mark Twain once said, "Quitting smoking is easy. I've done it hundreds of times."). If we decide to re-try Option 1, then it will need to be strictly adhered to (and enforced, if need be). Option 2 is one we have flirted with but have never fully committed to (due to attempts to adhere to Option 1, on the one hand, and the tendency to mix this threshold question in with the subsidiary questions, on the other hand). Escalating these email threads and informal discussions to a focused Subgroup discussion and resolution of just the threshold question could greatly benefit this Subgroup. If we can answer this threshold question now, then we can either (if we answer "no") put the immunity question to rest for this Subgroup; or (if we answer yes), we can suspend further discussions of the "subsidiary questions" until we identify a problem that calls for immunity as a plausible remedy. Either way, we will be able to move past the immunity question and devote our current working energy to the litigation review and analysis, the Questionnaire response review, identification and discussion of potential problems for consideration by the Subgroup, and consideration of the answers from ICANN Legal (when received). Given how far and how often we have gone down the path of the "immunity discussion" in some form, and since we may actually be honing in on an answer to this threshold question, I suggest that the Subgroup strongly consider Option 2. I look forward to your thoughts. Greg On Tue, Feb 28, 2017 at 3:42 AM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch</compose?To=Jorge.Cancio@bakom.admin.ch>>> wrote: Dear Becky,y Apart from possible initial discussion during the very early Frankfurt F2F meetings (February 2015… I wasn’t in Frankfurt, but I don’t recall that this issue had been really discussed in depth and less excluded from the ws2 work on “jurisdiction”), I guess we would need some clear basis in the work stream 1 recommendations, which are the ones which laid down our community-wide agreements and defined the scope of work for work stream 2. My feeling is that no decision to exclude was taken, that we still have to look into potential problems (on the basis of the ongoing fact-finding exercises) and that immunities and privileges are something to be discussed if need be under possible remedies to identified problems. Kind regards Jorge Von: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@icann.org>> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@icann.org>>] Im Auftrag von Burr, Becky Gesendet: Montag, 27. Februar 2017 18:51 An: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com</compose?To=seun.ojedeji@gmail.com>>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@icann.org>>> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Sure, will have to go back through the F2F meeting transcript, but I think the discussion took place in the first F2F meeting in Frankfurt in January 2015, with one of the outside experts who was pushing the idea From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Monday, February 27, 2017 11:38 AM To: Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz</compose?To=Becky.Burr@neustar.biz>>> Cc: Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu</compose?To=milton@gatech.edu>>>; ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@icann.org>>>; parminder <parminder@itforchange.net<mailto:parminder@itforchange.net</compose?To=parminder@itforchange.net>>> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction On 27 Feb 2017 22:26, "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz</compose?To=Becky.Burr@neustar.biz>>> wrote:. My larger point remains – this question (re privileges and immunities) was asked and answered in WS1. SO: I for one would appreciate a reference to this for the record so I can confirm if we are talking about similar context. Would you mind providing a reference where the question and response was documented Becky? Thanks From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@icann.org>> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@icann.org>>] On Behalf Of Mueller, Milton L Sent: Saturday, February 25, 2017 10:06 AM To: parminder <parminder@itforchange.net<mailto:parminder@itforchange.net</compose?To=parminder@itforchange.net>>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Yes, it needs action by both the Congress and the President of the US.
The former will need to just amend some existing laws related to some
international orgs and add ICANN somewhere in it. Simple work. And
the President has to issue a decree under the Immunities Act.
So in the name of making ICANN more independent of the US government, you want to subject it to what would undoubtedly be a politically contentious and years-long process of legislation by the U.S. Congress (Republican-dominated) and would require the agreement a President whose platform vowed to never let ICANN be free of the U.S. government. Really smart. Does the word “backfire” have any meaning to non-Americans? If not, check out definition #2 here: https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=backfire+definition&*<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.google.com_webhp-3Fsourceid-3Dchrome-2Dinstant-26ion-3D1-26espv-3D2-26ie-3DUTF-2D8-23q-3Dbackfire-2Bdefinition-26-2A&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=lFzxyNZsqPq3dQCf2tQLLZwXRtWJNr01a16Lb6Zo_d8&s=2vjNdjcujIA_f13AAKVmN8mF_RYRvQZJ-bBgxoQ4Dd8&e=> Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology ICANN is not a treaty-based organization, This is not required. nor is it conducting work normally carried out by an intergovernmental organization. As shown by Jorge, this is not true. Turning it into a treaty-based organization No need to turn it into treaty based org to get US immunity. would seem to me to violate the Bylaws-mandated Core Value that requires ICANN to remain rooted in the private sector. There is a linguistic problem here. Private sector is understood differently in the US than almost everywhere else. In the US, it is just to be outside government, which ICANN is. Outside the US, it mostly mean for profit sector. ICANN is indeed outside government(s), and there is no proposal to change that. But it is also equally a non profit . That also I hope is not intended to be changed. In any case, whether non profit or for profit, everything is always subject to some kind of governmental jurisdiction. Being so subject does not change its non profit or even for profit nature. So the point is really moot. 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. The community asked this group to consider the issue of US jurisdiction over ICANN. And a question can only be considered if it is open - -unless, sorry to use that word, we are all mutually and together fooling ourselves, and doing discussions that really have no meaning or purpose. I really hope this is not the case - -although, I must admit, despair often does arises that it may actually may be the case. parminder From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@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</compose?To=gregshatanipc@gmail.com>><mailto:gregshatanipc@gmail.com</compose?To=gregshatanipc@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@icann.org>><mailto:ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@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</compose?To=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</compose?To=gregshatanipc@gmail.com>> On Tue, Feb 14, 2017 at 6:17 AM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com</compose?To=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</compose?To=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</compose?To=paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com</compose?To=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</compose?To=paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com</compose?To=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<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=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=> <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</compose?To=parminder@itforchange.net>> <mailto:parminder@itforchange.net<mailto:parminder@itforchange.net</compose?To=parminder@itforchange.net>>>] *Sent:* Sunday, February 12, 2017 12:54 AM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com</compose?To=paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com</compose?To=paul.rosenzweig@redbranchconsulting.com>>>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@icann.org>> <mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@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</compose?To=paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com</compose?To=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<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=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=> <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:*ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@icann.org>> <mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@icann.org>>> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@icann.org>> <mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@icann.org>>>] *On Behalf Of *parminder *Sent:* Saturday, February 11, 2017 8:46 AM *To:* ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@icann.org>> <mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@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</compose?To=paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com</compose?To=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</compose?To=paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com</compose?To=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<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=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=> <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</compose?To=parminder@itforchange.net>> <mailto:parminder@itforchange.net<mailto:parminder@itforchange.net</compose?To=parminder@itforchange.net>>>] *Sent:* Sunday, February 12, 2017 12:54 AM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com</compose?To=paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com</compose?To=paul.rosenzweig@redbranchconsulting.com>>>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@icann.org>> <mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@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</compose?To=paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com</compose?To=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<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=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=> <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:*ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@icann.org>> <mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@icann.org>>> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@icann.org>> <mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org</compose?To=ws2%2djurisdiction%2dbounces@icann.org>>>] *On Behalf Of *parminder *Sent:* Saturday, February 11, 2017 8:46 AM *To:* ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@icann.org>> <mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org</compose?To=ws2%2djurisdiction@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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org</compose?To=Ws2%2djurisdiction@icann.org>> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org</compose?To=Ws2%2djurisdiction@icann.org>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org</compose?To=Ws2%2djurisdiction@icann.org>> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org</compose?To=Ws2%2djurisdiction@icann.org>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org</compose?To=Ws2%2djurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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</compose?To=Ws2%2djurisdiction@icann.org>> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org</compose?To=Ws2%2djurisdiction@icann.org>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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Greg captured Paraminder's questions about immunity in a for question survey approximately two weeks ago. The responses to that inquiry are the survey responses to which I refer. I agree about standard of behavior. To what are you referring? Paul -- Paul Rosenzweig Sent from myMail app for Android Wednesday, 01 March 2017, 08:21AM -05:00 from Jorge.Cancio@bakom.admin.ch :
Dear Paul Could you elaborate on what you refer to with „Greg’s survey“? BTW I feel standards of behavior should be adhered to Regards Jorge Von: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Gesendet: Mittwoch, 1. März 2017 13:12 An: Cancio Jorge BAKOM < Jorge.Cancio@bakom.admin.ch > Cc: ws2-jurisdiction@icann.org; seun.ojedeji@gmail.com; Becky.Burr@neustar.biz; gregshatanipc@gmail.com Betreff: Re[2]: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Regrets for meeting today. Strongly favor approach 2 We have been sidetracked for months now because some participants are insistent on out of scope answers. With respect Jorge "immunity" is in fact out of scope and utterly inconsistent with our mandate. It also is overwhelmingly rejected in response to Greg's survey. And finally it is not realistic. We might as well consider incorporation on Mars. Let us stop spinning our wheels. Paul -- Paul Rosenzweig Sent from myMail app for Android Wednesday, 01 March 2017, 01:22AM -05:00 from Jorge.Cancio@bakom.admin.ch :
Dear Greg I understand how tiring some debates may be. However from a logical viewpoint our agreed approach (1) is the one which is consistent and would allow us to tackle issues in the right order, providing the community with more solid outcomes. Besides I would be very reluctant to start over again with such scope-related discussions, which usually end up in a chicken and egg situation. Let's all be patient and tackle the next step which is fact-finding... So to say we are in "discovery" and we cannot rush into "summary judgment"... regards Jorge
________________________________
Von: Greg Shatan < gregshatanipc@gmail.com > Datum: 28. Februar 2017 um 17:32:24 MEZ An: Becky.Burr@neustar.biz < Becky.Burr@neustar.biz >, seun.ojedeji@gmail.com < seun.ojedeji@gmail.com >, Cancio Jorge BAKOM < Jorge.Cancio@bakom.admin.ch > Cc: ws2-jurisdiction@icann.org < ws2-jurisdiction@icann.org > Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
All,
Jorge touches on an important point in terms of our working method: "immunities and privileges are something to be discussed if need be under possible remedies to identified problems."
That reflects the working method adopted by the group. Nonetheless, this discussion of "immunity" has cropped up several times before the Subgroup has identified any problem supported by the Subgroup that calls for immunity as a possible remedy. Sometimes (as now) these discussions are at significant length and seem to take up much of the working energy of the Subgroup.
At this point, we can do one of two things:
(1) Suspend any further discussion of immunity unless and until the Subgroup identifies a problem that calls for immunity as a plausible remedy to that problem. Problems can be "identified" from items in any of several sources: proposals from participants in the Subgroup, Questionnaire responses, the review of ICANN's litigation, or possibly ICANN Legal's responses to our questions. An item should not be considered an "identified problem" until the Subgroup supports that designation (i.e., an item is proposed and discusse and the Subgroup supports designating it as a problem for purposes of this Subgroup).
(2) Directly consider and resolve the threshold question of whether immunity can and should be a remedy that this Subgroup would recommend. This question needs to be answered before we move, if at all, to "subsidiary questions" such as "Is immunity available to ICANN?", "How does one get such immunity?", "What does such immunity actually cover?", "What are the consequences of such immunity?", "Can this immunity be customized in some fashion?", "Can such immunity be waived by ICANN (either on a case-by-case basis or generally)?", "What are the conseqences of such waiver?," "How can such immunity be challenged or revoked?", "How would these questions be answered differently under the laws of the US and under the laws of a selected set of other jurisdiction?", etc. If we decide now that immunity is not a remedy this Subgroup would recommend, these other questions do not need to be considered. If we decide that immunity is a remedy this Subgroup would potentially recommend, then we can seek answers to those subsidiary questions in an organized process of the Subgroup, including requesting legal advice.
Option 1 is one that we've tried, but it has not succeeded (at least not for very long). (As Mark Twain once said, "Quitting smoking is easy. I've done it hundreds of times."). If we decide to re-try Option 1, then it will need to be strictly adhered to (and enforced, if need be).
Option 2 is one we have flirted with but have never fully committed to (due to attempts to adhere to Option 1, on the one hand, and the tendency to mix this threshold question in with the subsidiary questions, on the other hand). Escalating these email threads and informal discussions to a focused Subgroup discussion and resolution of just the threshold question could greatly benefit this Subgroup. If we can answer this threshold question now, then we can either (if we answer "no") put the immunity question to rest for this Subgroup; or (if we answer yes), we can suspend further discussions of the "subsidiary questions" until we identify a problem that calls for immunity as a plausible remedy.
Either way, we will be able to move past the immunity question and devote our current working energy to the litigation review and analysis, the Questionnaire response review, identification and discussion of potential problems for consideration by the Subgroup, and consideration of the answers from ICANN Legal (when received).
Given how far and how often we have gone down the path of the "immunity discussion" in some form, and since we may actually be honing in on an answer to this threshold question, I suggest that the Subgroup strongly consider Option 2.
I look forward to your thoughts.
Greg
On Tue, Feb 28, 2017 at 3:42 AM <Jorge.Cancio@bakom.admin.ch<mailto: Jorge.Cancio@bakom.admin.ch >> wrote:
Dear Becky,y
Apart from possible initial discussion during the very early Frankfurt F2F meetings (February 2015… I wasn’t in Frankfurt, but I don’t recall that this issue had been really discussed in depth and less excluded from the ws2 work on “jurisdiction”), I guess we would need some clear basis in the work stream 1 recommendations, which are the ones which laid down our community-wide agreements and defined the scope of work for work stream 2.
My feeling is that no decision to exclude was taken, that we still have to look into potential problems (on the basis of the ongoing fact-finding exercises) and that immunities and privileges are something to be discussed if need be under possible remedies to identified problems.
Kind regards
Jorge
Von: ws2-jurisdiction-bounces@icann.org<mailto: ws2-jurisdiction-bounces@icann.org > [mailto:ws2-jurisdiction-bounces@icann.org<mailto: ws2-jurisdiction-bounces@icann.org >] Im Auftrag von Burr, Becky Gesendet: Montag, 27. Februar 2017 18:51 An: Seun Ojedeji <seun.ojedeji@gmail.com<mailto: seun.ojedeji@gmail.com >> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org >> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Sure, will have to go back through the F2F meeting transcript, but I think the discussion took place in the first F2F meeting in Frankfurt in January 2015, with one of the outside experts who was pushing the idea
From: Seun Ojedeji [ mailto:seun.ojedeji@gmail.com ] Sent: Monday, February 27, 2017 11:38 AM To: Burr, Becky <Becky.Burr@neustar.biz<mailto: Becky.Burr@neustar.biz >> Cc: Mueller, Milton L <milton@gatech.edu<mailto: milton@gatech.edu >>; ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org >>; parminder <parminder@itforchange.net<mailto: parminder@itforchange.net >> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
On 27 Feb 2017 22:26, "Burr, Becky" <Becky.Burr@neustar.biz<mailto: Becky.Burr@neustar.biz >> wrote:.
My larger point remains – this question (re privileges and immunities) was asked and answered in WS1.
SO: I for one would appreciate a reference to this for the record so I can confirm if we are talking about similar context. Would you mind providing a reference where the question and response was documented Becky?
Thanks
From: 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 Mueller, Milton L Sent: Saturday, February 25, 2017 10:06 AM To: parminder <parminder@itforchange.net<mailto: parminder@itforchange.net >>; ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org >
Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Yes, it needs action by both the Congress and the President of the US.
The former will need to just amend some existing laws related to some
international orgs and add ICANN somewhere in it. Simple work. And
the President has to issue a decree under the Immunities Act.
So in the name of making ICANN more independent of the US government, you want to subject it to what would undoubtedly be a politically contentious and years-long process of legislation by the U.S. Congress (Republican-dominated) and would require the agreement a President whose platform vowed to never let ICANN be free of the U.S. government.
Really smart.
Does the word “backfire” have any meaning to non-Americans? If not, check out definition #2 here: https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q... < https://urldefense.proofpoint.com/v2/url?u=https-3A__www.google.com_webhp-3F... =>
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
ICANN is not a treaty-based organization,
This is not required.
nor is it conducting work normally carried out by an intergovernmental organization.
As shown by Jorge, this is not true.
Turning it into a treaty-based organization
No need to turn it into treaty based org to get US immunity.
would seem to me to violate the Bylaws-mandated Core Value that requires ICANN to remain rooted in the private sector.
There is a linguistic problem here. Private sector is understood differently in the US than almost everywhere else. In the US, it is just to be outside government, which ICANN is. Outside the US, it mostly mean for profit sector. ICANN is indeed outside government(s), and there is no proposal to change that. But it is also equally a non profit . That also I hope is not intended to be changed.
In any case, whether non profit or for profit, everything is always subject to some kind of governmental jurisdiction. Being so subject does not change its non profit or even for profit nature. So the point is really moot.
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.
The community asked this group to consider the issue of US jurisdiction over ICANN. And a question can only be considered if it is open - -unless, sorry to use that word, we are all mutually and together fooling ourselves, and doing discussions that really have no meaning or purpose. I really hope this is not the case - -although, I must admit, despair often does arises that it may actually may be the case.
parminder
From: ws2-jurisdiction-bounces@icann.org<mailto: 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 ><mailto: gregshatanipc@gmail.com > Cc: ws2-jurisdiction < ws2-jurisdiction@icann.org ><mailto: 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.____
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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____
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Paul____
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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.... =>>____
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... => < https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 < https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks... =>>____
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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____
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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
____
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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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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... => < https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 < https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks... =>>____
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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) . ____
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.____
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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.____
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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.____
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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____
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Paul____
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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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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... => < https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 < https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks... =>>____
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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____
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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.... => < http://www.redbranchconsulting.com/ < https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.... =>>____
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... => < https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 < https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks... =>>____
____
*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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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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Greg Shatan C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc@gmail.com<mailto: gregshatanipc@gmail.com > _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Dear Paul Please forgive me if I do not remember that specific survey. Perhaps you or somebody could point to the exact results of that survey. In any case, if the issue was so clearly settled as you say, I doubt Greg would be requesting the opinion of the group about this issue. But I might have missed something. As to standards of behavior I think we all have to treat others with respect and dignity, avoiding a ridiculing different opinions, which may create unwanted perceptions, especially in a multicultural setting like this one. Regards Jorge Von: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Gesendet: Mittwoch, 1. März 2017 14:28 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch> Cc: ws2-jurisdiction@icann.org; seun.ojedeji@gmail.com; Becky.Burr@neustar.biz; gregshatanipc@gmail.com Betreff: Re: AW: Re[2]: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Greg captured Paraminder's questions about immunity in a for question survey approximately two weeks ago. The responses to that inquiry are the survey responses to which I refer. I agree about standard of behavior. To what are you referring? Paul -- Paul Rosenzweig Sent from myMail app for Android Wednesday, 01 March 2017, 08:21AM -05:00 from Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>: Dear Paul Could you elaborate on what you refer to with „Greg’s survey“? BTW I feel standards of behavior should be adhered to Regards Jorge Von: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Gesendet: Mittwoch, 1. März 2017 13:12 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>; seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>; Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>; gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> Betreff: Re[2]: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Regrets for meeting today. Strongly favor approach 2 We have been sidetracked for months now because some participants are insistent on out of scope answers. With respect Jorge "immunity" is in fact out of scope and utterly inconsistent with our mandate. It also is overwhelmingly rejected in response to Greg's survey. And finally it is not realistic. We might as well consider incorporation on Mars. Let us stop spinning our wheels. Paul -- Paul Rosenzweig Sent from myMail app for Android Wednesday, 01 March 2017, 01:22AM -05:00 from Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>: Dear Greg I understand how tiring some debates may be. However from a logical viewpoint our agreed approach (1) is the one which is consistent and would allow us to tackle issues in the right order, providing the community with more solid outcomes. Besides I would be very reluctant to start over again with such scope-related discussions, which usually end up in a chicken and egg situation. Let's all be patient and tackle the next step which is fact-finding... So to say we are in "discovery" and we cannot rush into "summary judgment"... regards Jorge ________________________________ Von: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Datum: 28. Februar 2017 um 17:32:24 MEZ An: Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz> <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>>, seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com> <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>>, Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction All, Jorge touches on an important point in terms of our working method: "immunities and privileges are something to be discussed if need be under possible remedies to identified problems." That reflects the working method adopted by the group. Nonetheless, this discussion of "immunity" has cropped up several times before the Subgroup has identified any problem supported by the Subgroup that calls for immunity as a possible remedy. Sometimes (as now) these discussions are at significant length and seem to take up much of the working energy of the Subgroup. At this point, we can do one of two things: (1) Suspend any further discussion of immunity unless and until the Subgroup identifies a problem that calls for immunity as a plausible remedy to that problem. Problems can be "identified" from items in any of several sources: proposals from participants in the Subgroup, Questionnaire responses, the review of ICANN's litigation, or possibly ICANN Legal's responses to our questions. An item should not be considered an "identified problem" until the Subgroup supports that designation (i.e., an item is proposed and discusse and the Subgroup supports designating it as a problem for purposes of this Subgroup). (2) Directly consider and resolve the threshold question of whether immunity can and should be a remedy that this Subgroup would recommend. This question needs to be answered before we move, if at all, to "subsidiary questions" such as "Is immunity available to ICANN?", "How does one get such immunity?", "What does such immunity actually cover?", "What are the consequences of such immunity?", "Can this immunity be customized in some fashion?", "Can such immunity be waived by ICANN (either on a case-by-case basis or generally)?", "What are the conseqences of such waiver?," "How can such immunity be challenged or revoked?", "How would these questions be answered differently under the laws of the US and under the laws of a selected set of other jurisdiction?", etc. If we decide now that immunity is not a remedy this Subgroup would recommend, these other questions do not need to be considered. If we decide that immunity is a remedy this Subgroup would potentially recommend, then we can seek answers to those subsidiary questions in an organized process of the Subgroup, including requesting legal advice. Option 1 is one that we've tried, but it has not succeeded (at least not for very long). (As Mark Twain once said, "Quitting smoking is easy. I've done it hundreds of times."). If we decide to re-try Option 1, then it will need to be strictly adhered to (and enforced, if need be). Option 2 is one we have flirted with but have never fully committed to (due to attempts to adhere to Option 1, on the one hand, and the tendency to mix this threshold question in with the subsidiary questions, on the other hand). Escalating these email threads and informal discussions to a focused Subgroup discussion and resolution of just the threshold question could greatly benefit this Subgroup. If we can answer this threshold question now, then we can either (if we answer "no") put the immunity question to rest for this Subgroup; or (if we answer yes), we can suspend further discussions of the "subsidiary questions" until we identify a problem that calls for immunity as a plausible remedy. Either way, we will be able to move past the immunity question and devote our current working energy to the litigation review and analysis, the Questionnaire response review, identification and discussion of potential problems for consideration by the Subgroup, and consideration of the answers from ICANN Legal (when received). Given how far and how often we have gone down the path of the "immunity discussion" in some form, and since we may actually be honing in on an answer to this threshold question, I suggest that the Subgroup strongly consider Option 2. I look forward to your thoughts. Greg On Tue, Feb 28, 2017 at 3:42 AM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch%3cmailto:Jorge.Cancio@bakom.admin.ch>>> wrote: Dear Becky,y Apart from possible initial discussion during the very early Frankfurt F2F meetings (February 2015… I wasn’t in Frankfurt, but I don’t recall that this issue had been really discussed in depth and less excluded from the ws2 work on “jurisdiction”), I guess we would need some clear basis in the work stream 1 recommendations, which are the ones which laid down our community-wide agreements and defined the scope of work for work stream 2. My feeling is that no decision to exclude was taken, that we still have to look into potential problems (on the basis of the ongoing fact-finding exercises) and that immunities and privileges are something to be discussed if need be under possible remedies to identified problems. Kind regards Jorge Von: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org%3cmailto:ws2-jurisdiction-bounces@icann.org>> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org><mailto:ws2-jurisdiction-bounces@icann.org%3cmailto:ws2-jurisdiction-bounces@icann.org%3e>] Im Auftrag von Burr, Becky Gesendet: Montag, 27. Februar 2017 18:51 An: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com%3cmailto:seun.ojedeji@gmail.com>>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org%3cmailto:ws2-jurisdiction@icann.org>>> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Sure, will have to go back through the F2F meeting transcript, but I think the discussion took place in the first F2F meeting in Frankfurt in January 2015, with one of the outside experts who was pushing the idea From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Monday, February 27, 2017 11:38 AM To: Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz%3cmailto:Becky.Burr@neustar.biz>>> Cc: Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu<mailto:milton@gatech.edu%3cmailto:milton@gatech.edu>>>; ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org%3cmailto:ws2-jurisdiction@icann.org>>>; parminder <parminder@itforchange.net<mailto:parminder@itforchange.net<mailto:parminder@itforchange.net%3cmailto:parminder@itforchange.net>>> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction On 27 Feb 2017 22:26, "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz%3cmailto:Becky.Burr@neustar.biz>>> wrote:. My larger point remains – this question (re privileges and immunities) was asked and answered in WS1. SO: I for one would appreciate a reference to this for the record so I can confirm if we are talking about similar context. Would you mind providing a reference where the question and response was documented Becky? Thanks From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org%3cmailto:ws2-jurisdiction-bounces@icann.org>> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org><mailto:ws2-jurisdiction-bounces@icann.org%3cmailto:ws2-jurisdiction-bounces@icann.org%3e>] On Behalf Of Mueller, Milton L Sent: Saturday, February 25, 2017 10:06 AM To: parminder <parminder@itforchange.net<mailto:parminder@itforchange.net<mailto:parminder@itforchange.net%3cmailto:parminder@itforchange.net>>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org%3cmailto:ws2-jurisdiction@icann.org>> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Yes, it needs action by both the Congress and the President of the US.
The former will need to just amend some existing laws related to some
international orgs and add ICANN somewhere in it. Simple work. And
the President has to issue a decree under the Immunities Act.
So in the name of making ICANN more independent of the US government, you want to subject it to what would undoubtedly be a politically contentious and years-long process of legislation by the U.S. Congress (Republican-dominated) and would require the agreement a President whose platform vowed to never let ICANN be free of the U.S. government. Really smart. Does the word “backfire” have any meaning to non-Americans? If not, check out definition #2 here: https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=backfire+definition&*<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.google.com_webhp-3Fsourceid-3Dchrome-2Dinstant-26ion-3D1-26espv-3D2-26ie-3DUTF-2D8-23q-3Dbackfire-2Bdefinition-26-2A&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=lFzxyNZsqPq3dQCf2tQLLZwXRtWJNr01a16Lb6Zo_d8&s=2vjNdjcujIA_f13AAKVmN8mF_RYRvQZJ-bBgxoQ4Dd8&e=> Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology ICANN is not a treaty-based organization, This is not required. nor is it conducting work normally carried out by an intergovernmental organization. As shown by Jorge, this is not true. Turning it into a treaty-based organization No need to turn it into treaty based org to get US immunity. would seem to me to violate the Bylaws-mandated Core Value that requires ICANN to remain rooted in the private sector. There is a linguistic problem here. Private sector is understood differently in the US than almost everywhere else. In the US, it is just to be outside government, which ICANN is. Outside the US, it mostly mean for profit sector. ICANN is indeed outside government(s), and there is no proposal to change that. But it is also equally a non profit . That also I hope is not intended to be changed. In any case, whether non profit or for profit, everything is always subject to some kind of governmental jurisdiction. Being so subject does not change its non profit or even for profit nature. So the point is really moot. 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. The community asked this group to consider the issue of US jurisdiction over ICANN. And a question can only be considered if it is open - -unless, sorry to use that word, we are all mutually and together fooling ourselves, and doing discussions that really have no meaning or purpose. I really hope this is not the case - -although, I must admit, despair often does arises that it may actually may be the case. parminder From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org%3cmailto: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<mailto:gregshatanipc@gmail.com>><mailto:gregshatanipc@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>><mailto: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<mailto:gregshatanipc@gmail.com%3cmailto: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<mailto:gregshatanipc@gmail.com%3cmailto:gregshatanipc@gmail.com>> On Tue, Feb 14, 2017 at 6:17 AM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com%3cmailto: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<mailto:nigel@channelisles.net%3cmailto: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%3cmailto:paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com%3cmailto: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%3cmailto:paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com%3cmailto: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<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=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=> <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>><mailto:parminder@itforchange.net%3cmailto:parminder@itforchange.net%3e%0b %3cmailto:parminder@itforchange.net%3cmailto:parminder@itforchange.net%3e%3e>] *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%3cmailto:paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com%3cmailto:paul.rosenzweig@redbranchconsulting.com>>>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org%3cmailto:ws2-jurisdiction@icann.org>> <mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org%3cmailto: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%3cmailto:paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com%3cmailto: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<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=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=> <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:*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%3cmailto: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%3cmailto:ws2-jurisdiction-bounces@icann.org%3e%0b %3cmailto:ws2-jurisdiction-bounces@icann.org%3cmailto:ws2-jurisdiction-bounces@icann.org%3e%3e>] *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%3cmailto:ws2-jurisdiction@icann.org>> <mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org%3cmailto: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%3cmailto:paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com%3cmailto: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%3cmailto:paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com%3cmailto: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<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=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=> <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>><mailto:parminder@itforchange.net%3cmailto:parminder@itforchange.net%3e%0b %3cmailto:parminder@itforchange.net%3cmailto:parminder@itforchange.net%3e%3e>] *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%3cmailto:paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com%3cmailto:paul.rosenzweig@redbranchconsulting.com>>>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org%3cmailto:ws2-jurisdiction@icann.org>> <mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org%3cmailto: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%3cmailto:paul.rosenzweig@redbranchconsulting.com>> <mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com%3cmailto: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<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=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=> <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:*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%3cmailto: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%3cmailto:ws2-jurisdiction-bounces@icann.org%3e%0b %3cmailto:ws2-jurisdiction-bounces@icann.org%3cmailto:ws2-jurisdiction-bounces@icann.org%3e%3e>] *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%3cmailto:ws2-jurisdiction@icann.org>> <mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org%3cmailto: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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org%3cmailto:Ws2-jurisdiction@icann.org>> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org%3cmailto:Ws2-jurisdiction@icann.org>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org%3cmailto:Ws2-jurisdiction@icann.org>> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org%3cmailto:Ws2-jurisdiction@icann.org>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org%3cmailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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%3cmailto:Ws2-jurisdiction@icann.org>> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org%3cmailto:Ws2-jurisdiction@icann.org>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Greg Shatan C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
On Wed, Mar 1, 2017 at 2:28 PM, Paul Rosenzweig <paul.rosenzweig@ redbranchconsulting.com> wrote:
Greg captured Paraminder's questions about immunity in a for question survey approximately two weeks ago. The responses to that inquiry are the survey responses to which I refer.
SO: FWIW, I can't remember seeing any survey sent to the list. If this survey is probably something that was shared on the call then you will agree with me (for obvious reasons) that discussions on the call cannot be final until its taken back to the list. As a side note to you Phil, I personally do have a concern that efforts to formerly put this subject matter to final rest has always been stalled and not given the opportunity to be followed through. I really hope we will give opportunity for this and lets get this topic done with for once. It is not helpful to keep saying it should not happen or that it was earlier discussed without pointing to any reference where is was formerly documented. Regards
I agree about standard of behavior. To what are you referring?
Paul
-- Paul Rosenzweig Sent from myMail app for Android Wednesday, 01 March 2017, 08:21AM -05:00 from Jorge.Cancio@bakom.admin.ch:
Dear Paul
Could you elaborate on what you refer to with „Greg’s survey“?
BTW I feel standards of behavior should be adhered to
Regards
Jorge
*Von:* Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] *Gesendet:* Mittwoch, 1. März 2017 13:12 *An:* Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch> *Cc:* ws2-jurisdiction@icann.org; seun.ojedeji@gmail.com; Becky.Burr@neustar.biz; gregshatanipc@gmail.com *Betreff:* Re[2]: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Regrets for meeting today.
Strongly favor approach 2
We have been sidetracked for months now because some participants are insistent on out of scope answers.
With respect Jorge "immunity" is in fact out of scope and utterly inconsistent with our mandate. It also is overwhelmingly rejected in response to Greg's survey. And finally it is not realistic. We might as well consider incorporation on Mars.
Let us stop spinning our wheels.
Paul
-- Paul Rosenzweig Sent from myMail app for Android
Wednesday, 01 March 2017, 01:22AM -05:00 from Jorge.Cancio@bakom.admin.ch:
Dear Greg I understand how tiring some debates may be. However from a logical viewpoint our agreed approach (1) is the one which is consistent and would allow us to tackle issues in the right order, providing the community with more solid outcomes. Besides I would be very reluctant to start over again with such scope-related discussions, which usually end up in a chicken and egg situation. Let's all be patient and tackle the next step which is fact-finding... So to say we are in "discovery" and we cannot rush into "summary judgment"... regards Jorge
________________________________
Von: Greg Shatan <gregshatanipc@gmail.com> Datum: 28. Februar 2017 um 17:32:24 MEZ An: Becky.Burr@neustar.biz <Becky.Burr@neustar.biz>, seun.ojedeji@gmail.com <seun.ojedeji@gmail.com>, Cancio Jorge BAKOM < Jorge.Cancio@bakom.admin.ch> Cc: ws2-jurisdiction@icann.org <ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
All,
Jorge touches on an important point in terms of our working method: "immunities and privileges are something to be discussed if need be under possible remedies to identified problems."
That reflects the working method adopted by the group. Nonetheless, this discussion of "immunity" has cropped up several times before the Subgroup has identified any problem supported by the Subgroup that calls for immunity as a possible remedy. Sometimes (as now) these discussions are at significant length and seem to take up much of the working energy of the Subgroup.
At this point, we can do one of two things:
(1) Suspend any further discussion of immunity unless and until the Subgroup identifies a problem that calls for immunity as a plausible remedy to that problem. Problems can be "identified" from items in any of several sources: proposals from participants in the Subgroup, Questionnaire responses, the review of ICANN's litigation, or possibly ICANN Legal's responses to our questions. An item should not be considered an "identified problem" until the Subgroup supports that designation (i.e., an item is proposed and discusse and the Subgroup supports designating it as a problem for purposes of this Subgroup).
(2) Directly consider and resolve the threshold question of whether immunity can and should be a remedy that this Subgroup would recommend. This question needs to be answered before we move, if at all, to "subsidiary questions" such as "Is immunity available to ICANN?", "How does one get such immunity?", "What does such immunity actually cover?", "What are the consequences of such immunity?", "Can this immunity be customized in some fashion?", "Can such immunity be waived by ICANN (either on a case-by-case basis or generally)?", "What are the conseqences of such waiver?," "How can such immunity be challenged or revoked?", "How would these questions be answered differently under the laws of the US and under the laws of a selected set of other jurisdiction?", etc. If we decide now that immunity is not a remedy this Subgroup would recommend, these other questions do not need to be considered. If we decide that immunity is a remedy this Subgroup would potentially recommend, then we can seek answers to those subsidiary questions in an organized process of the Subgroup, including requesting legal advice.
Option 1 is one that we've tried, but it has not succeeded (at least not for very long). (As Mark Twain once said, "Quitting smoking is easy. I've done it hundreds of times."). If we decide to re-try Option 1, then it will need to be strictly adhered to (and enforced, if need be).
Option 2 is one we have flirted with but have never fully committed to (due to attempts to adhere to Option 1, on the one hand, and the tendency to mix this threshold question in with the subsidiary questions, on the other hand). Escalating these email threads and informal discussions to a focused Subgroup discussion and resolution of just the threshold question could greatly benefit this Subgroup. If we can answer this threshold question now, then we can either (if we answer "no") put the immunity question to rest for this Subgroup; or (if we answer yes), we can suspend further discussions of the "subsidiary questions" until we identify a problem that calls for immunity as a plausible remedy.
Either way, we will be able to move past the immunity question and devote our current working energy to the litigation review and analysis, the Questionnaire response review, identification and discussion of potential problems for consideration by the Subgroup, and consideration of the answers from ICANN Legal (when received).
Given how far and how often we have gone down the path of the "immunity discussion" in some form, and since we may actually be honing in on an answer to this threshold question, I suggest that the Subgroup strongly consider Option 2.
I look forward to your thoughts.
Greg
On Tue, Feb 28, 2017 at 3:42 AM <Jorge.Cancio@bakom.admin.ch<mailto: Jorge.Cancio@bakom.admin.ch>> wrote:
Dear Becky,y
Apart from possible initial discussion during the very early Frankfurt F2F meetings (February 2015… I wasn’t in Frankfurt, but I don’t recall that this issue had been really discussed in depth and less excluded from the ws2 work on “jurisdiction”), I guess we would need some clear basis in the work stream 1 recommendations, which are the ones which laid down our community-wide agreements and defined the scope of work for work stream 2.
My feeling is that no decision to exclude was taken, that we still have to look into potential problems (on the basis of the ongoing fact-finding exercises) and that immunities and privileges are something to be discussed if need be under possible remedies to identified problems.
Kind regards
Jorge
Von: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction- bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org<mailto: ws2-jurisdiction-bounces@icann.org>] Im Auftrag von Burr, Becky Gesendet: Montag, 27. Februar 2017 18:51 An: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Sure, will have to go back through the F2F meeting transcript, but I think the discussion took place in the first F2F meeting in Frankfurt in January 2015, with one of the outside experts who was pushing the idea
From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com <seun.ojedeji@gmail.com> ] Sent: Monday, February 27, 2017 11:38 AM To: Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Cc: Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>>; ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto: ws2-jurisdiction@icann.org>>; parminder <parminder@itforchange.net<mailto: parminder@itforchange.net>> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
On 27 Feb 2017 22:26, "Burr, Becky" <Becky.Burr@neustar.biz<mailto: Becky.Burr@neustar.biz>> wrote:.
My larger point remains – this question (re privileges and immunities) was asked and answered in WS1.
SO: I for one would appreciate a reference to this for the record so I can confirm if we are talking about similar context. Would you mind providing a reference where the question and response was documented Becky?
Thanks
From: 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 Mueller, Milton L Sent: Saturday, February 25, 2017 10:06 AM To: parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>
Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Yes, it needs action by both the Congress and the President of the US.
The former will need to just amend some existing laws related to some
international orgs and add ICANN somewhere in it. Simple work. And
the President has to issue a decree under the Immunities Act.
So in the name of making ICANN more independent of the US government, you want to subject it to what would undoubtedly be a politically contentious and years-long process of legislation by the U.S. Congress (Republican-dominated) and would require the agreement a President whose platform vowed to never let ICANN be free of the U.S. government.
Really smart.
Does the word “backfire” have any meaning to non-Americans? If not, check out definition #2 here: https://www.google.com/webhp?s ourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=backfire+definition&*< https://urldefense.proofpoint.com/v2/url?u=https-3A__www.google.com_webhp- 3Fsourceid-3Dchrome-2Dinstant-26ion-3D1-26espv-3D2-26ie- 3DUTF-2D8-23q-3Dbackfire-2Bdefinition-26-2A&d=DwMFAg&c= MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdY ahOP8WDDkMr4k&m=lFzxyNZsqPq3dQCf2tQLLZwXRtWJNr01a16Lb6Zo_d8& s=2vjNdjcujIA_f13AAKVmN8mF_RYRvQZJ-bBgxoQ4Dd8&e=>
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
ICANN is not a treaty-based organization,
This is not required.
nor is it conducting work normally carried out by an intergovernmental organization.
As shown by Jorge, this is not true.
Turning it into a treaty-based organization
No need to turn it into treaty based org to get US immunity.
would seem to me to violate the Bylaws-mandated Core Value that requires ICANN to remain rooted in the private sector.
There is a linguistic problem here. Private sector is understood differently in the US than almost everywhere else. In the US, it is just to be outside government, which ICANN is. Outside the US, it mostly mean for profit sector. ICANN is indeed outside government(s), and there is no proposal to change that. But it is also equally a non profit . That also I hope is not intended to be changed.
In any case, whether non profit or for profit, everything is always subject to some kind of governmental jurisdiction. Being so subject does not change its non profit or even for profit nature. So the point is really moot.
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.
The community asked this group to consider the issue of US jurisdiction over ICANN. And a question can only be considered if it is open - -unless, sorry to use that word, we are all mutually and together fooling ourselves, and doing discussions that really have no meaning or purpose. I really hope this is not the case - -although, I must admit, despair often does arises that it may actually may be the case.
parminder
From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction- bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] On Behalf Of Seun Ojedeji Sent: Tuesday, February 14, 2017 1:43 PM To: Greg Shatan <gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org><mailto: 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:p aul.rosenzweig@redbranchconsulting.com>>____
O: +1 (202) 547-0660 <+1%20202-547-0660><tel:%2B1%20%28202%29% 20547-0660> <tel:+1%20202-547-0660>____
M: +1 (202) 329-9650 <+1%20202-329-9650><tel:%2B1%20%28202%29% 20329-9650> <tel:+1%20202-329-9650>____
VOIP: +1 (202) 738-1739 <+1%20202-738-1739><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:p aul.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 <+1%20202-547-0660><tel:%2B1%20%28202%29% 20547-0660> <tel:+1%20202-547-0660>____
M: +1 (202) 329-9650 <+1%20202-329-9650><tel:%2B1%20%28202%29% 20329-9650> <tel:+1%20202-329-9650>____
VOIP: +1 (202) 738-1739 <+1%20202-738-1739><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.com&d=DwMFaQ&c= MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m= auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=SW0awN355LgKou 0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=> <http://www.redbranchconsulting.com/<https:// urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchco nsulting.com_&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r= 62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m= auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=1k6KNFdJzQIC6C kW4-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_GRlaq8Mo8TjDmrxdYahOP8 WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJ P9BR7SmJmiYPTtMNTO5cs0-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_GRlaq8Mo8TjDmrxdYahOP8 WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJ P9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>>____
____
*From:*ws2-jurisdiction-bounces@icann.org<mailto:ws2 -jurisdiction-bounces@icann.org> <mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws 2-jurisdiction-bounces@icann.org>> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws 2-jurisdiction-bounces@icann.org> <mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws 2-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:p aul.rosenzweig@redbranchconsulting.com>>____
O: +1 (202) 547-0660 <+1%20202-547-0660><tel:%2B1%20%28202%29% 20547-0660> <tel:+1%20202-547-0660>____
M: +1 (202) 329-9650 <+1%20202-329-9650><tel:%2B1%20%28202%29% 20329-9650> <tel:+1%20202-329-9650>____
VOIP: +1 (202) 738-1739 <+1%20202-738-1739><tel:%2B1%20%28202%29% 20738-1739> <tel:+1%20202-738-1739>____
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My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9 A830097CA066684<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=gBJP9BR7SmJmiY PTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=> <https://keys.mailvelope.com/pks/lookup?op=get&search=0x 9A830097CA066684<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=gBJP9BR7SmJmiY PTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>>____
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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:p aul.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>>____
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*From:*ws2-jurisdiction-bounces@icann.org<mailto:ws2 -jurisdiction-bounces@icann.org> <mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws 2-jurisdiction-bounces@icann.org>> [mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws 2-jurisdiction-bounces@icann.org> <mailto:ws2-jurisdiction-bounces@icann.org<mailto:ws 2-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____
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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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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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-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* Bringing another down does not take you up - think about your action!
I would agree if that were the case, but the four question survey was sent to the list. I answered it, as did (as far as I recall) Becky, Milton, Matt, Ed, John L, Nigel, David McCaully and Phil. The first question related to the GAC and was directed to only GAC members… I did not answer it. P Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Wednesday, March 1, 2017 8:51 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: <Jorge.Cancio@bakom.admin.ch> <Jorge.Cancio@bakom.admin.ch>; ws2-jurisdiction <ws2-jurisdiction@icann.org>; Becky Burr <Becky.Burr@neustar.biz>; Greg Shatan <gregshatanipc@gmail.com> Subject: Re: AW: Re[2]: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction On Wed, Mar 1, 2017 at 2:28 PM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > wrote: Greg captured Paraminder's questions about immunity in a for question survey approximately two weeks ago. The responses to that inquiry are the survey responses to which I refer. SO: FWIW, I can't remember seeing any survey sent to the list. If this survey is probably something that was shared on the call then you will agree with me (for obvious reasons) that discussions on the call cannot be final until its taken back to the list. As a side note to you Phil, I personally do have a concern that efforts to formerly put this subject matter to final rest has always been stalled and not given the opportunity to be followed through. I really hope we will give opportunity for this and lets get this topic done with for once. It is not helpful to keep saying it should not happen or that it was earlier discussed without pointing to any reference where is was formerly documented. Regards I agree about standard of behavior. To what are you referring? Paul -- Paul Rosenzweig Sent from myMail app for Android Wednesday, 01 March 2017, 08:21AM -05:00 from Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> : Dear Paul Could you elaborate on what you refer to with „Greg’s survey“? BTW I feel standards of behavior should be adhered to Regards Jorge Von: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> ] Gesendet: Mittwoch, 1. März 2017 13:12 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> > Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> ; seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com> ; Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz> ; gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> Betreff: Re[2]: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Regrets for meeting today. Strongly favor approach 2 We have been sidetracked for months now because some participants are insistent on out of scope answers. With respect Jorge "immunity" is in fact out of scope and utterly inconsistent with our mandate. It also is overwhelmingly rejected in response to Greg's survey. And finally it is not realistic. We might as well consider incorporation on Mars. Let us stop spinning our wheels. Paul -- Paul Rosenzweig Sent from myMail app for Android Wednesday, 01 March 2017, 01:22AM -05:00 from Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> : Dear Greg I understand how tiring some debates may be. However from a logical viewpoint our agreed approach (1) is the one which is consistent and would allow us to tackle issues in the right order, providing the community with more solid outcomes. Besides I would be very reluctant to start over again with such scope-related discussions, which usually end up in a chicken and egg situation. Let's all be patient and tackle the next step which is fact-finding... So to say we are in "discovery" and we cannot rush into "summary judgment"... regards Jorge ________________________________ Von: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > Datum: 28. Februar 2017 um 17:32:24 MEZ An: Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz> <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz> >, seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com> <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com> >, Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> > Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> > Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction All, Jorge touches on an important point in terms of our working method: "immunities and privileges are something to be discussed if need be under possible remedies to identified problems." That reflects the working method adopted by the group. Nonetheless, this discussion of "immunity" has cropped up several times before the Subgroup has identified any problem supported by the Subgroup that calls for immunity as a possible remedy. Sometimes (as now) these discussions are at significant length and seem to take up much of the working energy of the Subgroup. At this point, we can do one of two things: (1) Suspend any further discussion of immunity unless and until the Subgroup identifies a problem that calls for immunity as a plausible remedy to that problem. Problems can be "identified" from items in any of several sources: proposals from participants in the Subgroup, Questionnaire responses, the review of ICANN's litigation, or possibly ICANN Legal's responses to our questions. An item should not be considered an "identified problem" until the Subgroup supports that designation (i.e., an item is proposed and discusse and the Subgroup supports designating it as a problem for purposes of this Subgroup). (2) Directly consider and resolve the threshold question of whether immunity can and should be a remedy that this Subgroup would recommend. This question needs to be answered before we move, if at all, to "subsidiary questions" such as "Is immunity available to ICANN?", "How does one get such immunity?", "What does such immunity actually cover?", "What are the consequences of such immunity?", "Can this immunity be customized in some fashion?", "Can such immunity be waived by ICANN (either on a case-by-case basis or generally)?", "What are the conseqences of such waiver?," "How can such immunity be challenged or revoked?", "How would these questions be answered differently under the laws of the US and under the laws of a selected set of other jurisdiction?", etc. If we decide now that immunity is not a remedy this Subgroup would recommend, these other questions do not need to be considered. If we decide that immunity is a remedy this Subgroup would potentially recommend, then we can seek answers to those subsidiary questions in an organized process of the Subgroup, including requesting legal advice. Option 1 is one that we've tried, but it has not succeeded (at least not for very long). (As Mark Twain once said, "Quitting smoking is easy. I've done it hundreds of times."). If we decide to re-try Option 1, then it will need to be strictly adhered to (and enforced, if need be). Option 2 is one we have flirted with but have never fully committed to (due to attempts to adhere to Option 1, on the one hand, and the tendency to mix this threshold question in with the subsidiary questions, on the other hand). Escalating these email threads and informal discussions to a focused Subgroup discussion and resolution of just the threshold question could greatly benefit this Subgroup. If we can answer this threshold question now, then we can either (if we answer "no") put the immunity question to rest for this Subgroup; or (if we answer yes), we can suspend further discussions of the "subsidiary questions" until we identify a problem that calls for immunity as a plausible remedy. Either way, we will be able to move past the immunity question and devote our current working energy to the litigation review and analysis, the Questionnaire response review, identification and discussion of potential problems for consideration by the Subgroup, and consideration of the answers from ICANN Legal (when received). Given how far and how often we have gone down the path of the "immunity discussion" in some form, and since we may actually be honing in on an answer to this threshold question, I suggest that the Subgroup strongly consider Option 2. I look forward to your thoughts. Greg On Tue, Feb 28, 2017 at 3:42 AM <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> <mailto:Jorge.Cancio@bakom.admin.ch>> wrote: Dear Becky,y Apart from possible initial discussion during the very early Frankfurt F2F meetings (February 2015… I wasn’t in Frankfurt, but I don’t recall that this issue had been really discussed in depth and less excluded from the ws2 work on “jurisdiction”), I guess we would need some clear basis in the work stream 1 recommendations, which are the ones which laid down our community-wide agreements and defined the scope of work for work stream 2. My feeling is that no decision to exclude was taken, that we still have to look into potential problems (on the basis of the ongoing fact-finding exercises) and that immunities and privileges are something to be discussed if need be under possible remedies to identified problems. Kind regards Jorge Von: 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>] Im Auftrag von Burr, Becky Gesendet: Montag, 27. Februar 2017 18:51 An: Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com> <mailto:seun.ojedeji@gmail.com>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> <mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Sure, will have to go back through the F2F meeting transcript, but I think the discussion took place in the first F2F meeting in Frankfurt in January 2015, with one of the outside experts who was pushing the idea From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Monday, February 27, 2017 11:38 AM To: Burr, Becky <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz> <mailto:Becky.Burr@neustar.biz>> Cc: Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu> <mailto:milton@gatech.edu>>; ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> <mailto:ws2-jurisdiction@icann.org>>; parminder <parminder@itforchange.net <mailto:parminder@itforchange.net> <mailto:parminder@itforchange.net>> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction On 27 Feb 2017 22:26, "Burr, Becky" <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz> <mailto:Becky.Burr@neustar.biz>> wrote:. My larger point remains – this question (re privileges and immunities) was asked and answered in WS1. SO: I for one would appreciate a reference to this for the record so I can confirm if we are talking about similar context. Would you mind providing a reference where the question and response was documented Becky? Thanks 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>] On Behalf Of Mueller, Milton L Sent: Saturday, February 25, 2017 10:06 AM To: parminder <parminder@itforchange.net <mailto:parminder@itforchange.net> <mailto:parminder@itforchange.net>>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Yes, it needs action by both the Congress and the President of the US.
The former will need to just amend some existing laws related to some
international orgs and add ICANN somewhere in it. Simple work. And
the President has to issue a decree under the Immunities Act.
So in the name of making ICANN more independent of the US government, you want to subject it to what would undoubtedly be a politically contentious and years-long process of legislation by the U.S. Congress (Republican-dominated) and would require the agreement a President whose platform vowed to never let ICANN be free of the U.S. government. Really smart. Does the word “backfire” have any meaning to non-Americans? If not, check out definition #2 here: https://www.google.com/webhp?sourceid=chrome-instant <https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q...> &ion=1&espv=2&ie=UTF-8#q=backfire+definition&*<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.google.com_webhp-3F... <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.google.com_webhp-3F...> &d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=lFzxyNZsqPq3dQCf2tQLLZwXRtWJNr01a16Lb6Zo_d8&s=2vjNdjcujIA_f13AAKVmN8mF_RYRvQZJ-bBgxoQ4Dd8&e=> Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology ICANN is not a treaty-based organization, This is not required. nor is it conducting work normally carried out by an intergovernmental organization. As shown by Jorge, this is not true. Turning it into a treaty-based organization No need to turn it into treaty based org to get US immunity. would seem to me to violate the Bylaws-mandated Core Value that requires ICANN to remain rooted in the private sector. There is a linguistic problem here. Private sector is understood differently in the US than almost everywhere else. In the US, it is just to be outside government, which ICANN is. Outside the US, it mostly mean for profit sector. ICANN is indeed outside government(s), and there is no proposal to change that. But it is also equally a non profit . That also I hope is not intended to be changed. In any case, whether non profit or for profit, everything is always subject to some kind of governmental jurisdiction. Being so subject does not change its non profit or even for profit nature. So the point is really moot. 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. The community asked this group to consider the issue of US jurisdiction over ICANN. And a question can only be considered if it is open - -unless, sorry to use that word, we are all mutually and together fooling ourselves, and doing discussions that really have no meaning or purpose. I really hope this is not the case - -although, I must admit, despair often does arises that it may actually may be the case. parminder From: 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 Seun Ojedeji Sent: Tuesday, February 14, 2017 1:43 PM To: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> ><mailto:gregshatanipc@gmail.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> ><mailto: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> <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> <mailto:gregshatanipc@gmail.com> On Tue, Feb 14, 2017 at 6:17 AM, Seun Ojedeji <seun.ojedeji@gmail.com <mailto: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> <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 <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 <mailto:paul.rosenzweig@redbranchconsulting.com> <mailto:paul.rosenzweig@redbranchconsulting.com>>____ O: +1 (202) 547-0660 <tel:+1%20202-547-0660> <tel:%2B1%20%28202%29%20547-0660> <tel:+1%20202-547-0660>____ M: +1 (202) 329-9650 <tel:+1%20202-329-9650> <tel:%2B1%20%28202%29%20329-9650> <tel:+1%20202-329-9650>____ VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739> <tel:%2B1%20%28202%29%20738-1739> <tel:+1%20202-738-1739>____ www.redbranchconsulting.com <http://www.redbranchconsulting.com> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.... <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> &d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=> <http://www.redbranchconsulting.com/<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_ <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> &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 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> &search=0x9A830097CA066684<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks... <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=> <https://keys.mailvelope.com/pks/lookup?op=get <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> &search=0x9A830097CA066684<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks... <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &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 <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 <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 <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 <mailto:paul.rosenzweig@redbranchconsulting.com> <mailto:paul.rosenzweig@redbranchconsulting.com>>____ O: +1 (202) 547-0660 <tel:+1%20202-547-0660> <tel:%2B1%20%28202%29%20547-0660> <tel:+1%20202-547-0660>____ M: +1 (202) 329-9650 <tel:+1%20202-329-9650> <tel:%2B1%20%28202%29%20329-9650> <tel:+1%20202-329-9650>____ VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739> <tel:%2B1%20%28202%29%20738-1739> <tel:+1%20202-738-1739>____ www.redbranchconsulting.com <http://www.redbranchconsulting.com> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.... <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> &d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=> <http://www.redbranchconsulting.com/<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_ <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> &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 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> &search=0x9A830097CA066684<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks... <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=> <https://keys.mailvelope.com/pks/lookup?op=get <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> &search=0x9A830097CA066684<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks... <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &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> <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 <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 <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 <mailto:paul.rosenzweig@redbranchconsulting.com> <mailto:paul.rosenzweig@redbranchconsulting.com>>____ O: +1 (202) 547-0660 <tel:+1%20202-547-0660> <tel:%2B1%20%28202%29%20547-0660> <tel:+1%20202-547-0660>____ M: +1 (202) 329-9650 <tel:+1%20202-329-9650> <tel:%2B1%20%28202%29%20329-9650> <tel:+1%20202-329-9650>____ VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739> <tel:%2B1%20%28202%29%20738-1739> <tel:+1%20202-738-1739>____ www.redbranchconsulting.com <http://www.redbranchconsulting.com> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.... <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> &d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=> <http://www.redbranchconsulting.com/<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_ <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> &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 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> &search=0x9A830097CA066684<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks... <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=> <https://keys.mailvelope.com/pks/lookup?op=get <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> &search=0x9A830097CA066684<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks... <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &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 <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 <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 <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 <mailto:paul.rosenzweig@redbranchconsulting.com> <mailto:paul.rosenzweig@redbranchconsulting.com>>____ O: +1 (202) 547-0660 <tel:+1%20202-547-0660> <tel:%2B1%20%28202%29%20547-0660> <tel:+1%20202-547-0660>____ M: +1 (202) 329-9650 <tel:+1%20202-329-9650> <tel:%2B1%20%28202%29%20329-9650> <tel:+1%20202-329-9650>____ VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739> <tel:%2B1%20%28202%29%20738-1739> <tel:+1%20202-738-1739>____ www.redbranchconsulting.com <http://www.redbranchconsulting.com> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.... <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> &d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=> <http://www.redbranchconsulting.com/<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_ <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> &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 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> &search=0x9A830097CA066684<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks... <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=> <https://keys.mailvelope.com/pks/lookup?op=get <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> &search=0x9A830097CA066684<https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks... <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> &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> <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 <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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> &d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> &d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> &d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> &d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> &d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=> 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). 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https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Greg Shatan C: 917-816-6428 S: gsshatan Phone-to-Skype: 646-845-9428 gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng Mobile: +2348035233535 alt email: <http://goog_1872880453> seun.ojedeji@fuoye.edu.ng <mailto:seun.ojedeji@fuoye.edu.ng> Bringing another down does not take you up - think about your action!
On 28 Feb 2017 23:32, "Greg Shatan" <gregshatanipc@gmail.com> wrote: Option 2 is one we have flirted with but have never fully committed to (due to attempts to adhere to Option 1, on the one hand, and the tendency to mix this threshold question in with the subsidiary questions, on the other hand). Escalating these email threads and informal discussions to a focused Subgroup discussion and resolution of just the threshold question could greatly benefit this Subgroup. SO: Makes a helpful way forward. If we can answer this threshold question now, then we can either (if we answer "no") put the immunity question to rest for this Subgroup; or (if we answer yes), we can suspend further discussions of the "subsidiary questions" until we identify a problem that calls for immunity as a plausible remedy. SO: What "subsidiary questions"? Anyway can we then get on with what you've suggested above. One way is to produce a template to formerly log the problems/issues that people may have and then we can discuss/validate them thereafter. Regards Either way, we will be able to move past the immunity question and devote our current working energy to the litigation review and analysis, the Questionnaire response review, identification and discussion of potential problems for consideration by the Subgroup, and consideration of the answers from ICANN Legal (when received). *Given how far and how often we have gone down the path of the "immunity discussion" in some form, and since we may actually be honing in on an answer to this threshold question, I suggest that the Subgroup strongly consider Option 2.* I look forward to your thoughts. Greg On Tue, Feb 28, 2017 at 3:42 AM <Jorge.Cancio@bakom.admin.ch> wrote:
Dear Becky,y
Apart from possible initial discussion during the very early Frankfurt F2F meetings (February 2015… I wasn’t in Frankfurt, but I don’t recall that this issue had been really discussed in depth and less excluded from the ws2 work on “jurisdiction”), I guess we would need some clear basis in the work stream 1 recommendations, which are the ones which laid down our community-wide agreements and defined the scope of work for work stream 2.
My feeling is that no decision to exclude was taken, that we still have to look into potential problems (on the basis of the ongoing fact-finding exercises) and that immunities and privileges are something to be discussed if need be under possible remedies to identified problems.
Kind regards
Jorge
*Von:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] *Im Auftrag von *Burr, Becky *Gesendet:* Montag, 27. Februar 2017 18:51 *An:* Seun Ojedeji <seun.ojedeji@gmail.com> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Betreff:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Sure, will have to go back through the F2F meeting transcript, but I think the discussion took place in the first F2F meeting in Frankfurt in January 2015, with one of the outside experts who was pushing the idea
*From:* Seun Ojedeji [mailto:seun.ojedeji@gmail.com <seun.ojedeji@gmail.com>] *Sent:* Monday, February 27, 2017 11:38 AM *To:* Burr, Becky <Becky.Burr@neustar.biz> *Cc:* Mueller, Milton L <milton@gatech.edu>; ws2-jurisdiction < ws2-jurisdiction@icann.org>; parminder <parminder@itforchange.net> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
On 27 Feb 2017 22:26, "Burr, Becky" <Becky.Burr@neustar.biz> wrote:.
My larger point remains – this question (re privileges and immunities) was asked and answered in WS1.
SO: I for one would appreciate a reference to this for the record so I can confirm if we are talking about similar context. Would you mind providing a reference where the question and response was documented Becky?
Thanks
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] *On Behalf Of *Mueller, Milton L *Sent:* Saturday, February 25, 2017 10:06 AM *To:* parminder <parminder@itforchange.net>; ws2-jurisdiction@icann.org
*Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Yes, it needs action by both the Congress and the President of the US.
The former will need to just amend some existing laws related to some
international orgs and add ICANN somewhere in it. Simple work. And
the President has to issue a decree under the Immunities Act.
So in the name of making ICANN more independent of the US government, you want to subject it to what would undoubtedly be a politically contentious and years-long process of legislation by the U.S. Congress (Republican-dominated) and would require the agreement a President whose platform vowed to never let ICANN be free of the U.S. government.
Really smart.
Does the word “backfire” have any meaning to non-Americans? If not, check out definition #2 here: https://www.google.com/webhp? sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=backfire+definition&* <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.google.com_webhp-3F...>
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
ICANN is not a treaty-based organization,
This is not required.
nor is it conducting work normally carried out by an intergovernmental organization.
As shown by Jorge, this is not true.
Turning it into a treaty-based organization
No need to turn it into treaty based org to get US immunity.
would seem to me to violate the Bylaws-mandated Core Value that requires ICANN to *remain rooted in the private sector*.
There is a linguistic problem here. Private sector is understood differently in the US than almost everywhere else. In the US, it is just to be outside government, which ICANN is. Outside the US, it mostly mean for profit sector. ICANN is indeed outside government(s), and there is no proposal to change that. But it is also equally a non profit . That also I hope is not intended to be changed.
In any case, whether non profit or for profit, everything is always subject to some kind of governmental jurisdiction. Being so subject does not change its non profit or even for profit nature. So the point is really moot.
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.
The community asked this group to consider the issue of US jurisdiction over ICANN. And a question can only be considered if it is open - -unless, sorry to use that word, we are all mutually and together fooling ourselves, and doing discussions that really have no meaning or purpose. I really hope this is not the case - -although, I must admit, despair often does arises that it may actually may be the case.
parminder
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Seun Ojedeji *Sent:* Tuesday, February 14, 2017 1:43 PM *To:* Greg Shatan <gregshatanipc@gmail.com> <gregshatanipc@gmail.com> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> <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> 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
On Tue, Feb 14, 2017 at 6:17 AM, Seun Ojedeji <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> 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>> 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>____
O: +1 (202) 547-0660 <tel:+1%20202-547-0660 <+1%20202-547-0660>>____
M: +1 (202) 329-9650 <tel:+1%20202-329-9650 <+1%20202-329-9650>>____
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739 <+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....>
____
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...> <https://keys.mailvelope.com/pks/lookup?op=get&search= 0x9A830097CA066684 <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...>
____
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*From:*parminder [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>>; 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>____
O: +1 (202) 547-0660 <tel:+1%20202-547-0660 <+1%20202-547-0660>
____
M: +1 (202) 329-9650 <tel:+1%20202-329-9650 <+1%20202-329-9650>
____
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739 <+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....>
____
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...> <https://keys.mailvelope.com/pks/lookup?op=get&search= 0x9A830097CA066684 <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...>
____
____
*From:*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> *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>> 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>____
O: +1 (202) 547-0660 <tel:+1%20202-547-0660 <+1%20202-547-0660>>____
M: +1 (202) 329-9650 <tel:+1%20202-329-9650 <+1%20202-329-9650>>____
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739 <+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....>
____
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...> <https://keys.mailvelope.com/pks/lookup?op=get&search= 0x9A830097CA066684 <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...>
____
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*From:*parminder [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>>; 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>____
O: +1 (202) 547-0660 <tel:+1%20202-547-0660 <+1%20202-547-0660>
____
M: +1 (202) 329-9650 <tel:+1%20202-329-9650 <+1%20202-329-9650>
____
VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739 <+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....>
____
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...> <https://keys.mailvelope.com/pks/lookup?op=get&search= 0x9A830097CA066684 <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...>
____
____
*From:*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> *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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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'
...
In regard to President Trump's proposed temporary travel restrictions, the fact that they have been enjoined by US Courts illustrates that ICANN is well placed in a nation subject to rule of law and separation of powers. So far as OFAC restrictions aimed at preventing business transactions with criminal and terrorist organizations, ICANN has indicated that it can request exemptions and that when it has done so they have been granted (at least that is my recollection). Finally, and once again, arguments that ICANN should be immune not just from US jurisdiction but from the laws of any nation state are in effect positing that ICANN should be an IGO with broad quasi-sovereign immunity. That would be both contrary to the aim of the transition as well as contrary to effective accountability, which can only occur when Bylaws transgressions can be adjudicated in court if internal mechanisms fail. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell "Luck is the residue of design" -- Branch Rickey ________________________________ From: ws2-jurisdiction-bounces@icann.org [ws2-jurisdiction-bounces@icann.org] on behalf of Seun Ojedeji [seun.ojedeji@gmail.com] Sent: Tuesday, February 14, 2017 6:17 AM To: Nigel Roberts Cc: ws2-jurisdiction Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction 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>____ www.redbranchconsulting.com<http://www.redbranchconsulting.com> <http://www.redbranchconsulting.com/>____ My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>____ __ __ *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<http://www.redbranchconsulting.com> <http://www.redbranchconsulting.com/>____ My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>____ ____ *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<http://www.redbranchconsulting.com> <http://www.redbranchconsulting.com/>____ My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>____ __ __ *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<http://www.redbranchconsulting.com> <http://www.redbranchconsulting.com/>____ My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>____ ____ *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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction 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>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com/email-signature> Version: 2016.0.7998 / Virus Database: 4756/13918 - Release Date: 02/09/17
+1 Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Phil Corwin Sent: Tuesday, February 14, 2017 6:32 AM To: Seun Ojedeji <seun.ojedeji@gmail.com>; Nigel Roberts <nigel@channelisles.net> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction In regard to President Trump's proposed temporary travel restrictions, the fact that they have been enjoined by US Courts illustrates that ICANN is well placed in a nation subject to rule of law and separation of powers. So far as OFAC restrictions aimed at preventing business transactions with criminal and terrorist organizations, ICANN has indicated that it can request exemptions and that when it has done so they have been granted (at least that is my recollection). Finally, and once again, arguments that ICANN should be immune not just from US jurisdiction but from the laws of any nation state are in effect positing that ICANN should be an IGO with broad quasi-sovereign immunity. That would be both contrary to the aim of the transition as well as contrary to effective accountability, which can only occur when Bylaws transgressions can be adjudicated in court if internal mechanisms fail. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell "Luck is the residue of design" -- Branch Rickey _____ From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org] on behalf of Seun Ojedeji [seun.ojedeji@gmail.com] Sent: Tuesday, February 14, 2017 6:17 AM To: Nigel Roberts Cc: ws2-jurisdiction Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction 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>____ www.redbranchconsulting.com <http://www.redbranchconsulting.com> <http://www.redbranchconsulting.com/>____ My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> &search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> &search=0x9A830097CA066684>____ __ __ *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 <http://www.redbranchconsulting.com> <http://www.redbranchconsulting.com/>____ My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> &search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> &search=0x9A830097CA066684>____ ____ *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 <http://www.redbranchconsulting.com> <http://www.redbranchconsulting.com/>____ My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> &search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> &search=0x9A830097CA066684>____ __ __ *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 <http://www.redbranchconsulting.com> <http://www.redbranchconsulting.com/>____ My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> &search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> &search=0x9A830097CA066684>____ ____ *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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction 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> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> ____ ____ __ __ _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _____ No virus found in this message. Checked by AVG - www.avg.com <http://www.avg.com/email-signature> Version: 2016.0.7998 / Virus Database: 4756/13918 - Release Date: 02/09/17
+ 1 On 14/02/2017 14:39, Paul Rosenzweig wrote:
+1
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
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*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Phil Corwin *Sent:* Tuesday, February 14, 2017 6:32 AM *To:* Seun Ojedeji <seun.ojedeji@gmail.com>; Nigel Roberts <nigel@channelisles.net> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
In regard to President Trump's proposed temporary travel restrictions, the fact that they have been enjoined by US Courts illustrates that ICANN is well placed in a nation subject to rule of law and separation of powers.
So far as OFAC restrictions aimed at preventing business transactions with criminal and terrorist organizations, ICANN has indicated that it can request exemptions and that when it has done so they have been granted (at least that is my recollection).
Finally, and once again, arguments that ICANN should be immune not just from US jurisdiction but from the laws of any nation state are in effect positing that ICANN should be an IGO with broad quasi-sovereign immunity. That would be both contrary to the aim of the transition as well as contrary to effective accountability, which can only occur when Bylaws transgressions can be adjudicated in court if internal mechanisms fail.
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*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org] on behalf of Seun Ojedeji [seun.ojedeji@gmail.com] *Sent:* Tuesday, February 14, 2017 6:17 AM *To:* Nigel Roberts *Cc:* ws2-jurisdiction *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
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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<https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>____
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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 <http://www.redbranchconsulting.com> <http://www.redbranchconsulting.com/>____
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
<https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>____
____
*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 <http://www.redbranchconsulting.com> <http://www.redbranchconsulting.com/>____
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
<https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>____
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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 <http://www.redbranchconsulting.com> <http://www.redbranchconsulting.com/>____
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
<https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>____
____
*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.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
<https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> ____
____
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_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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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-- ------------ Matthew Shears Global Internet Policy and Human Rights Center for Democracy & Technology (CDT) + 44 771 2472987
That is of course, a different fish kettle. But I don't think it that likely that the current Administration will think ICANN is important enough to be granted exemptions from things like OFAC except in very specific circumstances (such as managing the delegation records for the ccTLDs for various embargoed countries, such as .KP etc, and of course that's PTI now anyway) n 14/02/17 11:17, Seun Ojedeji 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>____
www.redbranchconsulting.com <http://www.redbranchconsulting.com> <http://www.redbranchconsulting.com/ <http://www.redbranchconsulting.com/>>____
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>
<https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>>____
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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 <http://www.redbranchconsulting.com> <http://www.redbranchconsulting.com/ <http://www.redbranchconsulting.com/>>____
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>
<https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>>____
____
*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 <http://www.redbranchconsulting.com> <http://www.redbranchconsulting.com/ <http://www.redbranchconsulting.com/>>____
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>
<https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>>____
__ __
*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 <http://www.redbranchconsulting.com> <http://www.redbranchconsulting.com/ <http://www.redbranchconsulting.com/>>____
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>
<https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>>____
____
*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.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
<https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>> ____
____
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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.
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Sorry, but neither the travel ban nor the OFAC requirements are dependent on ICANN’s place of incorporation. Even if ICANN were incorporated in, say, Switzerland, the travel ban would still effect a hypothetical meeting in the US. The way to ameliorate the travel ban is to change the need for travel. I do suspect (and support) the idea that IF the travel ban takes effect ICANN consider that factor in deciding where to hold meetings. As for OFAC requirements, they can be applied to any corporation doing business in the US (which is how, for example, the US tries to get foreign banks not to do business with listed entities). Again, unless ICANN stops doing all business in the US (no office; not ccTLD; no registrar or registry contracts and maybe even no American consumer customers) OFAC can be applied. It even applies (in some cases, to wholly foreign subsidiaries). Like Greg, let me emphasize that I do not support the Travel Ban and I support ICANN’s effort (so far successful) to avoid the impact of OFAC on its operations. But it is simply a myth to say that moving ICANN’s legal place of incorporation to someplace outside the US will change anything about the applicability of US law. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Tuesday, February 14, 2017 4:23 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org>; parminder <parminder@itforchange.net> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Hi, I am not a lawyer but it doesn't sound accurate to say that the effect of the country of incorporation (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> > 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 <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 <tel:+1%20202-547-0660> M: +1 (202) 329-9650 <tel:+1%20202-329-9650> VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739> <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: parminder [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> >; 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 <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 <tel:+1%20202-547-0660> M: +1 (202) 329-9650 <tel:+1%20202-329-9650> VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739> <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: 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> 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. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
The travel bans make the simple but clear point that a nation will use its legal machinery for all purposes that it considers being in national interest, no matter if that rides roughshod over the interests of people from other countries. The many lessons from this for the issue of ICANN being under US jurisdiction are rather obvious.... " But it is simply a myth to say that moving ICANN’s legal place of incorporation to someplace outside the US will change anything about the applicability of US law." (Paul) This repeated restatement of a manifest untruth is astonishing --- that US law's application over ICANN does not change whether or not ICANN is incorporated in the US. You must have some extraordinary vision of the grandeur and reach of the US law! I am now getting afraid that the US government may now ban travel from the 7 banned countries to India too. People beware!. Are we living in the Alice's wonderland!! (Why btw then you wont agree to let ICANN get incorporated say in India. I can bet Indian government will readily pay all the costs involved. It will just end this otherwise endless debate.) parminder On Tuesday 14 February 2017 08:16 PM, Paul Rosenzweig wrote:
Sorry, but neither the travel ban nor the OFAC requirements are dependent on ICANN’s place of incorporation. Even if ICANN were incorporated in, say, Switzerland, the travel ban would still effect a hypothetical meeting in the US. The way to ameliorate the travel ban is to change the need for travel. I do suspect (and support) the idea that IF the travel ban takes effect ICANN consider that factor in deciding where to hold meetings.
As for OFAC requirements, they can be applied to any corporation doing business in the US (which is how, for example, the US tries to get foreign banks not to do business with listed entities). Again, unless ICANN stops doing all business in the US (no office; not ccTLD; no registrar or registry contracts and maybe even no American consumer customers) OFAC can be applied. It even applies (in some cases, to wholly foreign subsidiaries).
Like Greg, let me emphasize that I do not support the Travel Ban and I support ICANN’s effort (so far successful) to avoid the impact of OFAC on its operations. But it is simply a myth to say that moving ICANN’s legal place of incorporation to someplace outside the US will change anything about the applicability of US law.
Paul
Paul Rosenzweig
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*From:*Seun Ojedeji [mailto:seun.ojedeji@gmail.com] *Sent:* Tuesday, February 14, 2017 4:23 AM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org>; parminder <parminder@itforchange.net> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Hi,
I am not a lawyer but it doesn't sound accurate to say that the effect of the country of incorporation (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>> 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
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*From:*parminder [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>>; 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
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*From:*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> *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.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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Paraminder Ask UBS -- Paul Rosenzweig Sent from myMail app for Android Friday, 17 February 2017, 08:18AM -05:00 from parminder parminder@itforchange.net :
The travel bans make the simple but clear point that a nation will use its legal machinery for all purposes that it considers being in national interest, no matter if that rides roughshod over the interests of people from other countries. The many lessons from this for the issue of ICANN being under US jurisdiction are rather obvious.... " But it is simply a myth to say that moving ICANN’s legal place of incorporation to someplace outside the US will change anything about the applicability of US law." (Paul) This repeated restatement of a manifest untruth is astonishing --- that US law's application over ICANN does not change whether or not ICANN is incorporated in the US. You must have some extraordinary vision of the grandeur and reach of the US law! I am now getting afraid that the US government may now ban travel from the 7 banned countries to India too. People beware!. Are we living in the Alice's wonderland!! (Why btw then you wont agree to let ICANN get incorporated say in India. I can bet Indian government will readily pay all the costs involved. It will just end this otherwise endless debate.) parminder
On Tuesday 14 February 2017 08:16 PM, Paul Rosenzweig wrote:
Sorry, but neither the travel ban nor the OFAC requirements are dependent on ICANN’s place of incorporation. Even if ICANN were incorporated in, say, Switzerland, the travel ban would still effect a hypothetical meeting in the US. The way to ameliorate the travel ban is to change the need for travel. I do suspect (and support) the idea that IF the travel ban takes effect ICANN consider that factor in deciding where to hold meetings. As for OFAC requirements, they can be applied to any corporation doing business in the US (which is how, for example, the US tries to get foreign banks not to do business with listed entities). Again, unless ICANN stops doing all business in the US (no office; not ccTLD; no registrar or registry contracts and maybe even no American consumer customers) OFAC can be applied. It even applies (in some cases, to wholly foreign subsidiaries). Like Greg, let me emphasize that I do not support the Travel Ban and I support ICANN’s effort (so far successful) to avoid the impact of OFAC on its operations. But it is simply a myth to say that moving ICANN’s legal place of incorporation to someplace outside the US will change anything about the applicability of US law. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: Seun Ojedeji [ mailto:seun.ojedeji@gmail.com ] Sent: Tuesday, February 14, 2017 4:23 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org> ; parminder <parminder@itforchange.net> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Hi, I am not a lawyer but it doesn't sound accurate to say that the effect of the country of incorporation (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 > 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 O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: parminder [mailto: parminder@itforchange.net ] Sent: Sunday, February 12, 2017 12:54 AM To: Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com >; 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 O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: 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 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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Parminder said: The travel bans make the simple but clear point that a nation will use its legal machinery for all purposes that it considers being in national interest, no matter if that rides roughshod over the interests of people from other countries. The many lessons from this for the issue of ICANN being under US jurisdiction are rather obvious.... MM reply: It is obvious that your use of the indefinite article is correct: “a nation will use…” That is, ANY nation will or might use. So moving jurisdiction out of the US does not change this problem in the slightest. Indeed, it could make it worse, as I can offhand think of 8-10 nations that would make it worse. I think this is the point you keep missing. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology
On Sunday 19 February 2017 11:37 PM, Mueller, Milton L wrote:
Parminder said:
The travel bans make the simple but clear point that a nation will use its legal machinery for all purposes that it considers being in national interest, no matter if that rides roughshod over the interests of people from other countries. The many lessons from this for the issue of ICANN being under US jurisdiction are rather obvious....
MM reply: It is obvious that your use of the indefinite article is correct: “a nation will use…”
So, we agree here that US government can very plausibly be expected to use all existing or possible new laws, within its constitutional competence to make, to direct ICANN (aka interference with ICANN's policy processes) as its sees to be in US's national interest, which we all know cannot be supposed to fully conflate with global public interest. BTW, do see the recent order of Trump administration which expressly says "“Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies /*exclude */persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.” (emphasis added) Now, I know most national laws afford protection only to citizens but insisting on specifically excluding protections to non citizens looks like a overkill, but its the US gov's privilege, as we have been discussing. In the circumstance, since this position , that US state can very plausibly interfere with ICANN's policy implementation,can a priori be established, we really do not need that questionnaire and its responses, (which has deliberately been specifically rigged to exclude such extremely justified a priori considerations) to work on solutions against such expected eventualities. Does this not logically follow from your agreement with my "indefinite article"?
That is, ANY nation will or might use. So moving jurisdiction out of the US does not change this problem in the slightest. Indeed, it could make it worse, as I can offhand think of 8-10 nations that would make it worse. I think this is the point you keep missing.
My deal Milton, I do not miss this point. I have never, and I have insisted on this point several times on this elist, asked for ICANN jurisdiction to be moved to another country from the US. I would consider any such demand to be disrespectful of the US, as much as I consider present ICANN's jurisdictional status to be disrespectful of all non US nations. Dont know why not just you but many others keep missing this point again and again. I have asked for immunity and/or shift to international law. In both these cases no nation will be able to use its legal system to unilaterally assert its own national interest over ICANN's working. I hope I make my position clear. best, parminder
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
Hi Parminder, “I have asked for immunity and/or shift to international law. In both these cases no nation will be able to use its legal system to unilaterally assert its own national interest over ICANN's working. I hope I make my position clear.” Crystal. Yes, every jurisdiction has pros and cons. Unfortunately the system of jurisdiction you suggest moving ICANN to is insufficiently robust or even developed. Moreover, I don’t see anything remotely approaching global consensus on such a move nor even the desirability of such a move. As a thought experiment it is interesting and engaging but from a pragmatic, practical standpoint is it sorely lacking. Best regards, John Laprise, Ph.D. Consulting Scholar <http://www.linkedin.com/in/jplaprise/> http://www.linkedin.com/in/jplaprise/ From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Sunday, February 19, 2017 10:54 PM To: Mueller, Milton L <milton@gatech.edu>; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: 'ws2-jurisdiction' <ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction On Sunday 19 February 2017 11:37 PM, Mueller, Milton L wrote: Parminder said: The travel bans make the simple but clear point that a nation will use its legal machinery for all purposes that it considers being in national interest, no matter if that rides roughshod over the interests of people from other countries. The many lessons from this for the issue of ICANN being under US jurisdiction are rather obvious.... MM reply: It is obvious that your use of the indefinite article is correct: “a nation will use…” So, we agree here that US government can very plausibly be expected to use all existing or possible new laws, within its constitutional competence to make, to direct ICANN (aka interference with ICANN's policy processes) as its sees to be in US's national interest, which we all know cannot be supposed to fully conflate with global public interest. BTW, do see the recent order of Trump administration which expressly says " “Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.” (emphasis added) Now, I know most national laws afford protection only to citizens but insisting on specifically excluding protections to non citizens looks like a overkill, but its the US gov's privilege, as we have been discussing. In the circumstance, since this position , that US state can very plausibly interfere with ICANN's policy implementation, can a priori be established, we really do not need that questionnaire and its responses, (which has deliberately been specifically rigged to exclude such extremely justified a priori considerations) to work on solutions against such expected eventualities. Does this not logically follow from your agreement with my "indefinite article"? That is, ANY nation will or might use. So moving jurisdiction out of the US does not change this problem in the slightest. Indeed, it could make it worse, as I can offhand think of 8-10 nations that would make it worse. I think this is the point you keep missing. My deal Milton, I do not miss this point. I have never, and I have insisted on this point several times on this elist, asked for ICANN jurisdiction to be moved to another country from the US. I would consider any such demand to be disrespectful of the US, as much as I consider present ICANN's jurisdictional status to be disrespectful of all non US nations. Dont know why not just you but many others keep missing this point again and again. best, parminder Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology
+1 Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: John Laprise [mailto:jlaprise@gmail.com] Sent: Monday, February 20, 2017 12:17 PM To: 'parminder' <parminder@itforchange.net>; 'Mueller, Milton L' <milton@gatech.edu>; 'Paul Rosenzweig' <paul.rosenzweig@redbranchconsulting.com> Cc: 'ws2-jurisdiction' <ws2-jurisdiction@icann.org> Subject: RE: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction Hi Parminder, “I have asked for immunity and/or shift to international law. In both these cases no nation will be able to use its legal system to unilaterally assert its own national interest over ICANN's working. I hope I make my position clear.” Crystal. Yes, every jurisdiction has pros and cons. Unfortunately the system of jurisdiction you suggest moving ICANN to is insufficiently robust or even developed. Moreover, I don’t see anything remotely approaching global consensus on such a move nor even the desirability of such a move. As a thought experiment it is interesting and engaging but from a pragmatic, practical standpoint is it sorely lacking. Best regards, John Laprise, Ph.D. Consulting Scholar <http://www.linkedin.com/in/jplaprise/> http://www.linkedin.com/in/jplaprise/ From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Sunday, February 19, 2017 10:54 PM To: Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu> >; Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > Cc: 'ws2-jurisdiction' <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> > Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction On Sunday 19 February 2017 11:37 PM, Mueller, Milton L wrote: Parminder said: The travel bans make the simple but clear point that a nation will use its legal machinery for all purposes that it considers being in national interest, no matter if that rides roughshod over the interests of people from other countries. The many lessons from this for the issue of ICANN being under US jurisdiction are rather obvious.... MM reply: It is obvious that your use of the indefinite article is correct: “a nation will use…” So, we agree here that US government can very plausibly be expected to use all existing or possible new laws, within its constitutional competence to make, to direct ICANN (aka interference with ICANN's policy processes) as its sees to be in US's national interest, which we all know cannot be supposed to fully conflate with global public interest. BTW, do see the recent order of Trump administration which expressly says " “Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.” (emphasis added) Now, I know most national laws afford protection only to citizens but insisting on specifically excluding protections to non citizens looks like a overkill, but its the US gov's privilege, as we have been discussing. In the circumstance, since this position , that US state can very plausibly interfere with ICANN's policy implementation, can a priori be established, we really do not need that questionnaire and its responses, (which has deliberately been specifically rigged to exclude such extremely justified a priori considerations) to work on solutions against such expected eventualities. Does this not logically follow from your agreement with my "indefinite article"? That is, ANY nation will or might use. So moving jurisdiction out of the US does not change this problem in the slightest. Indeed, it could make it worse, as I can offhand think of 8-10 nations that would make it worse. I think this is the point you keep missing. My deal Milton, I do not miss this point. I have never, and I have insisted on this point several times on this elist, asked for ICANN jurisdiction to be moved to another country from the US. I would consider any such demand to be disrespectful of the US, as much as I consider present ICANN's jurisdictional status to be disrespectful of all non US nations. Dont know why not just you but many others keep missing this point again and again. best, parminder Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology
+1 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 -----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Saturday, February 11, 2017 3:47 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
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 https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Thank you Parminder. I have several comments/points/questions with regards to granting ICANN immunity from the US laws altogether. First: Can ICANN be held accountable if it is immune in the US? If it can, how so? ( I know you have explained this before but can you specifically point to a source, an applicable law? ) United Nations and its agencies act autonomously, they have been granted immunity and sometimes they don't act responsibly and it is not clear how we can hold them accountable. Same thing should not happen to ICANN. which court can ICANN be taken to? You think IRP is enough? Second: As to the laws, we don't have a developed set of international laws that can address all ICANN issues, do we? For example, sometimes in some disputes the question is whether domain names or ccTLDs are property or service. We don't have a solid body of international laws that can ascertain such issues. So I am not sure what will happen if there is a blanket immunity over US laws. ( I think we have discussed these before, sorry for bringing them up again but it's not bad to be reminded) Also, I was wondering if you could be more issue specific on domain name issues, maybe with real examples. I understand your hypothetical example but there can be so many ifs and buts that I prefer to get a clear example of something has already happened. I don't think any governmental executive agency can just ask ICANN to disable a generic name. They have to go through court. But I might be wrong and a real life example will be extremely helpful. You are right that OFAC licenses can be revoked, and certainly we need to discuss this further as to what happens if a license is revoked and based on what reasons it can be revoked. But consider that sometimes the US does not revoke a license for a national reason, it does it because of an international reason! There is an interesting revocation case which US cites the reason as: "As a member of the Financial Action Task Force (FATF), the United States today fulfilled its obligation* [revoking Iran's license]* to strengthen measures to protect the financial sector from the risks posed to the international financial system by Iran. In October 2008, FATF issued its fourth statement declaring that Iran continues to "pose a serious threat to the integrity of the international financial system" and called for countries worldwide to strengthen measures to protect their financial sectors from this threat." Found at https://www.treasury.gov/press-center/press-releases/Pages/hp1257.aspx addition in italics added by me. So I guess this revocation could happen in any other country. Best Farzaneh Farzaneh On Sat, Feb 11, 2017 at 2:50 AM, parminder <parminder@itforchange.net> wrote:
On Saturday 21 January 2017 02:58 AM, farzaneh badii wrote:
All,
Here is a blog post on ICANN's jurisdiction and sanctions. http://www. internetgovernance.org/2017/01/13/icanns-jurisdiction- sanctions-and-domain-names/
I have raised some of the issues before but the blog post is more consolidated. Hope it is useful for the work of this group.
Dear Farzaneh,
Thanks for this meticulous and useful work.
I have two comments to offer. Firstly, OFAC are just one kinds of sanctions that outside entities may be faced with. There could be other kinds related to commercial issues, like intellectual property, that businesses of other countries can face in the US, whether arising from a court order or that of an executive/ regulatory agency.
Here is an example <http://www.business-standard.com/article/companies/dutch-customs-seize-india...> of an EU government seizing, on US request, generic drugs being exported from India to Brazil. While this dispute is at the WTO, there is no question that if a US organisation (including non profit) were in any way helping or facilitating such a trade between India and US it will be forced to withdraw help/ facilitation by a US court or executive agency. Lets now assume that the hypothetical Indian exporter had a gTLD .genericdrugs which domain space was employed inter alia to facilitate its global business. The US law, through courts or executive agencies, would easily come in to disable it if it can - and it indeed can through its jurisdictional oversight over ICANN.
Now we come to the crucial part of what are the solutions that we may have.
You suggest that ICANN gets some kind of a general OFAC waiver. Firstly, as described above there are many other ways and basis for interference by the US government with the DNS beyond OFAC . Therefore we will need to get intellectual property violation waiver, lottery activity waiver, 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?
Secondly, no waiver is permanent, as we can very well judge from the Trump's administration's various activities. US is a democracy, and people have a right to change their governments, and the government have the right to change policies and laws. That would happen all the time. And we must act as if changes will happen rather than that they wont. Yes, even immunity under the mentioned US Act can be rolled back, and therefore international law and incorporation is the only real solution. However, to withdraw statutory immunity is so much more difficult. Plus there would be time, if this is attempted, for ICANN to even seek to make "alternative arrangements" outside the US.
parminder
Best
Farzaneh
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Farzaneh, thanks for your response. Pl see inline. On Monday 20 February 2017 11:34 AM, farzaneh badii wrote:
Thank you Parminder.
I have several comments/points/questions with regards to granting ICANN immunity from the US laws altogether.
First: Can ICANN be held accountable if it is immune in the US? If it can, how so? ( I know you have explained this before but can you specifically point to a source, an applicable law? ) United Nations and its agencies act autonomously, they have been granted immunity and sometimes they don't act responsibly and it is not clear how we can hold them accountable. Same thing should not happen to ICANN. which court can ICANN be taken to? You think IRP is enough?
As mentioned in the email I sent just now, with reference to information contained in a legal memo attached to an ICANN report, immunity for ICANN can easily be had without affecting its accountability and other internal governance mechanisms. I happy to have further discussion, and inputs from others, on this point. I have also repeatedly asked for legal opinion to be taken from a "neutral authority" on this matter, but my demands have had no response.
Second: As to the laws, we don't have a developed set of international laws that can address all ICANN issues, do we? For example, sometimes in some disputes the question is whether domain names or ccTLDs are property or service. We don't have a solid body of international laws that can ascertain such issues. So I am not sure what will happen if there is a blanket immunity over US laws. ( I think we have discussed these before, sorry for bringing them up again but it's not bad to be reminded)
Yes, international law is obviously not as expansive as national laws, but that is the cost we must accept in going forward to be governed globally, but democratically - in this case, for an global as against nationally fragmented Internet. This said, there is enough international law, and customary law application, for a globally designated judicial body to be able to adjudicate matters to satisfaction. This plus an active community mechanism should do for a beginning. You asked in the last question if IRP is enough, we can begin with it, but I prefer a more "general judicial" body that a sectoral arbitration for many reasons that I would not go into here (but of course the former is better in administration of general law actorss all sectors and issues). It is possible to later move towards such a global judicial oversight.
Also, I was wondering if you could be more issue specific on domain name issues, maybe with real examples. I understand your hypothetical example but there can be so many ifs and buts that I prefer to get a clear example of something has already happened. I don't think any governmental executive agency can just ask ICANN to disable a generic name.
Why not, if it within legal authority of a regulatory or executive body.US customs have forced <https://www.wired.com/2012/03/feds-seize-foreign-sites/> .com to seize domain names. Now if they wanted to act against say .genericdrugs, with registry in India, give me one reason US customs will treat ICANN differently than they treat Verisign... They will simply force ICANN to remove .genericdrugs as they have been forcing .com.
They have to go through court. But I might be wrong and a real life example will be extremely helpful.
The above is a real example. As is disruption of Crimean domain names http://atlarge-lists.icann.org/pipermail/na-discuss_atlarge-lists.icann.org/...
You are right that OFAC licenses can be revoked, and certainly we need to discuss this further as to what happens if a license is revoked and based on what reasons it can be revoked. But consider that sometimes the US does not revoke a license for a national reason, it does it because of an international reason! There is an interesting revocation case which US cites the reason as:
US state is constitutionally ordained to work to ensure US national interest. Period. Other concerns are secondary. They may indulge in international reasons, but that after US interest is taken care of.
"As a member of the Financial Action Task Force (FATF), the United States today fulfilled its obligation/[revoking Iran's license]/ to strengthen measures to protect the financial sector from the risks posed to the international financial system by Iran. In October 2008, FATF issued its fourth statement declaring that Iran continues to "pose a serious threat to the integrity of the international financial system" and called for countries worldwide to strengthen measures to protect their financial sectors from this threat." Found at https://www.treasury.gov/press-center/press-releases/Pages/hp1257.aspx
addition in italics added by me.
So I guess this revocation could happen in any other country.
Yes. Therefore ICANN should not be subject to /any /country's jurisdiction, but be immunised and subject to international laws and procedures alone. Best, parminder
Best
Farzaneh
Farzaneh
On Sat, Feb 11, 2017 at 2:50 AM, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:
On Saturday 21 January 2017 02:58 AM, farzaneh badii wrote:
All,
Here is a blog post on ICANN's jurisdiction and sanctions. http://www.internetgovernance.org/2017/01/13/icanns-jurisdiction-sanctions-a... <http://www.internetgovernance.org/2017/01/13/icanns-jurisdiction-sanctions-a...>
I have raised some of the issues before but the blog post is more consolidated. Hope it is useful for the work of this group.
Dear Farzaneh,
Thanks for this meticulous and useful work.
I have two comments to offer. Firstly, OFAC are just one kinds of sanctions that outside entities may be faced with. There could be other kinds related to commercial issues, like intellectual property, that businesses of other countries can face in the US, whether arising from a court order or that of an executive/ regulatory agency.
Here is an example <http://www.business-standard.com/article/companies/dutch-customs-seize-india...> of an EU government seizing, on US request, generic drugs being exported from India to Brazil. While this dispute is at the WTO, there is no question that if a US organisation (including non profit) were in any way helping or facilitating such a trade between India and US it will be forced to withdraw help/ facilitation by a US court or executive agency. Lets now assume that the hypothetical Indian exporter had a gTLD .genericdrugs which domain space was employed inter alia to facilitate its global business. The US law, through courts or executive agencies, would easily come in to disable it if it can - and it indeed can through its jurisdictional oversight over ICANN.
Now we come to the crucial part of what are the solutions that we may have.
You suggest that ICANN gets some kind of a general OFAC waiver. Firstly, as described above there are many other ways and basis for interference by the US government with the DNS beyond OFAC . Therefore we will need to get intellectual property violation waiver, lottery activity waiver, 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?
Secondly, no waiver is permanent, as we can very well judge from the Trump's administration's various activities. US is a democracy, and people have a right to change their governments, and the government have the right to change policies and laws. That would happen all the time. And we must act as if changes will happen rather than that they wont. Yes, even immunity under the mentioned US Act can be rolled back, and therefore international law and incorporation is the only real solution. However, to withdraw statutory immunity is so much more difficult. Plus there would be time, if this is attempted, for ICANN to even seek to make "alternative arrangements" outside the US.
parminder
Best
Farzaneh
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participants (15)
-
Burr, Becky -
farzaneh badii -
Finn Petersen -
Greg Shatan -
John Laprise -
Jorge.Cancio＠bakom.admin.ch -
matthew shears -
McAuley, David -
Mueller, Milton L -
Nigel Roberts -
parminder -
Paul Rosenzweig -
Phil Corwin -
Pranesh Prakash -
Seun Ojedeji