Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
On Feb 25, 2017 5:21 AM, "parminder" <parminder@itforchange.net> wrote: Becky, thanks for your response and please see inline. 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. SO: FWIW, Can we then derive a question from this for the legal to answer? I think it may be better we have something officially/formerly documented with regards to this, otherwise we will just keep coming back to it everytime. It will be good to be able to provide documentation is future to show that it's a matter that has been discussed and brought to a "consensus based" conclusion. Regards 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 <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 <%2B1%20%28202%29%20547-0660> < tel:+1%20202-547-0660 <+1%20202-547-0660>>____ M: +1 (202) 329-9650 <%2B1%20%28202%29%20329-9650> < tel:+1%20202-329-9650 <+1%20202-329-9650>>____ VOIP: +1 (202) 738-1739 <%2B1%20%28202%29%20738-1739> < 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 <%2B1%20%28202%29%20547-0660> < tel:+1%20202-547-0660 <+1%20202-547-0660>>____ M: +1 (202) 329-9650 <%2B1%20%28202%29%20329-9650> < tel:+1%20202-329-9650 <+1%20202-329-9650>>____ VOIP: +1 (202) 738-1739 <%2B1%20%28202%29%20738-1739> < 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:*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 <%2B1%20%28202%29%20547-0660> < tel:+1%20202-547-0660 <+1%20202-547-0660>>____ M: +1 (202) 329-9650 <%2B1%20%28202%29%20329-9650> < tel:+1%20202-329-9650 <+1%20202-329-9650>>____ VOIP: +1 (202) 738-1739 <%2B1%20%28202%29%20738-1739> < 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 <%2B1%20%28202%29%20547-0660> < tel:+1%20202-547-0660 <+1%20202-547-0660>>____ M: +1 (202) 329-9650 <%2B1%20%28202%29%20329-9650> < tel:+1%20202-329-9650 <+1%20202-329-9650>>____ VOIP: +1 (202) 738-1739 <%2B1%20%28202%29%20738-1739> < 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:*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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction ...
Dear Grec I fully agree with Seun. We must raise this question legally and ask for a NEUTRAL LEGAL VIEW There is désagrément on the matter. Several person said, there is no possibility to Immune ICANN from US LAW Others said .it has had a precedence. This exchange of correspondence is totally counter productive and must be resolved properly. I terrefort request Greg, to formulate the question/ view on the matter and after consultation with Co-Chair ask for an international Neutral Legal View . Regards Kavouss 2017-02-25 10:43 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com>:
On Feb 25, 2017 5:21 AM, "parminder" <parminder@itforchange.net> wrote:
Becky, thanks for your response and please see inline.
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.
SO: FWIW, Can we then derive a question from this for the legal to answer? I think it may be better we have something officially/formerly documented with regards to this, otherwise we will just keep coming back to it everytime. It will be good to be able to provide documentation is future to show that it's a matter that has been discussed and brought to a "consensus based" conclusion.
Regards
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-bounc es@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 <(917)%20816-6428> S: gsshatan Phone-to-Skype: 646-845-9428 <(646)%20845-9428> 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.____
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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>____
O: +1 (202) 547-0660 <%2B1%20%28202%29%20547-0660> < tel:+1%20202-547-0660 <+1%20202-547-0660>>____
M: +1 (202) 329-9650 <%2B1%20%28202%29%20329-9650> < tel:+1%20202-329-9650 <+1%20202-329-9650>>____
VOIP: +1 (202) 738-1739 <%2B1%20%28202%29%20738-1739> < 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=0x9A830 097CA066684 <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A83 0097CA066684 <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____
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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>____
O: +1 (202) 547-0660 <%2B1%20%28202%29%20547-0660> < tel:+1%20202-547-0660 <+1%20202-547-0660>>____
M: +1 (202) 329-9650 <%2B1%20%28202%29%20329-9650> < tel:+1%20202-329-9650 <+1%20202-329-9650>>____
VOIP: +1 (202) 738-1739 <%2B1%20%28202%29%20738-1739> < 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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My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830 097CA066684 <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A83 0097CA066684 <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____
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Paul____
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Paul Rosenzweig____
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>____
O: +1 (202) 547-0660 <%2B1%20%28202%29%20547-0660> < tel:+1%20202-547-0660 <+1%20202-547-0660>>____
M: +1 (202) 329-9650 <%2B1%20%28202%29%20329-9650> < tel:+1%20202-329-9650 <+1%20202-329-9650>>____
VOIP: +1 (202) 738-1739 <%2B1%20%28202%29%20738-1739> < 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=0x9A830 097CA066684 <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A83 0097CA066684 <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____
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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>____
O: +1 (202) 547-0660 <%2B1%20%28202%29%20547-0660> < tel:+1%20202-547-0660 <+1%20202-547-0660>>____
M: +1 (202) 329-9650 <%2B1%20%28202%29%20329-9650> < tel:+1%20202-329-9650 <+1%20202-329-9650>>____
VOIP: +1 (202) 738-1739 <%2B1%20%28202%29%20738-1739> < 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=0x9A830 097CA066684 <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks...> <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A83 0097CA066684 <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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org 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
Ladies and Gentlemen Although the haste of the pre-transition days has gone, I think we should still be proportionate in spending the corporations legal budget. It is entirely a waste of money, in my opinion, to instruct lawyers to inform on a proposition which is objected to. It is irrelevant WHETHER ICANN may waive immunity. ICANN *SHOULD NOT HAVE* immunity. On 25/02/17 13:51, Kavouss Arasteh wrote:
Dear Grec I fully agree with Seun. We must raise this question legally and ask for a NEUTRAL LEGAL VIEW There is désagrément on the matter. Several person said, there is no possibility to Immune ICANN from US LAW Others said .it has had a precedence. This exchange of correspondence is totally counter productive and must be resolved properly. I terrefort request Greg, to formulate the question/ view on the matter and after consultation with Co-Chair ask for an international Neutral Legal View . Regards Kavouss
2017-02-25 10:43 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>>:
On Feb 25, 2017 5:21 AM, "parminder" <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:
Becky, thanks for your response and please see inline.
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.
SO: FWIW, Can we then derive a question from this for the legal to answer? I think it may be better we have something officially/formerly documented with regards to this, otherwise we will just keep coming back to it everytime. It will be good to be able to provide documentation is future to show that it's a matter that has been discussed and brought to a "consensus based" conclusion.
Regards
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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
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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 *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____
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Sent from my LG G4 Kindly excuse brevity and typos____
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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? ____
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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.____
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Why is it a global effect on ICANN if it only concerns a small number of countries?____
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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 <tel:(917)%20816-6428> S: gsshatan Phone-to-Skype: 646-845-9428 <tel:(646)%20845-9428> 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>____
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>____
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>____
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
_______________________________________________ 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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Hmm...I count myself as one of those who consider some legal expense made during WS1 to be waste of money[1] but some others don't feel the same hence we spent on. The good/encouraging thing is that we had the transition anyway. I think for once we should give an opportunity to hear "what form of immunity/waiver that will allow ICANN to serve her global community equally is feasible without affecting ICANN accountability mechanisms that has been put in place". No problem If what you've just shared is what legal will come back with as a response and I don't think this will be too expensive compared to what we've gone through in the past. Regards 1. The questions we asked then had responses within the group(plus responses from ICANN legal) but we still went ahead to ask external legal who then came back to us with response paraphrased to mean the following: "...anything is possible, it depends on what we want" and then we looked at pros and cons. That similar opportunity is what is lacking in this current process. On Feb 25, 2017 3:10 PM, "Nigel Roberts" <nigel@channelisles.net> wrote:
Ladies and Gentlemen
Although the haste of the pre-transition days has gone, I think we should still be proportionate in spending the corporations legal budget.
It is entirely a waste of money, in my opinion, to instruct lawyers to inform on a proposition which is objected to.
It is irrelevant WHETHER ICANN may waive immunity.
ICANN *SHOULD NOT HAVE* immunity.
On 25/02/17 13:51, Kavouss Arasteh wrote:
Dear Grec I fully agree with Seun. We must raise this question legally and ask for a NEUTRAL LEGAL VIEW There is désagrément on the matter. Several person said, there is no possibility to Immune ICANN from US LAW Others said .it has had a precedence. This exchange of correspondence is totally counter productive and must be resolved properly. I terrefort request Greg, to formulate the question/ view on the matter and after consultation with Co-Chair ask for an international Neutral Legal View . Regards Kavouss
2017-02-25 10:43 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>>:
On Feb 25, 2017 5:21 AM, "parminder" <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:
Becky, thanks for your response and please see inline.
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.
SO: FWIW, Can we then derive a question from this for the legal to answer? I think it may be better we have something officially/formerly documented with regards to this, otherwise we will just keep coming back to it everytime. It will be good to be able to provide documentation is future to show that it's a matter that has been discussed and brought to a "consensus based" conclusion.
Regards
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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
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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 *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____
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Sent from my LG G4 Kindly excuse brevity and typos____
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On Feb 14, 2017 12:29 PM, "Greg Shatan" <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:____
Seun,____
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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." ____
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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? ____
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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.____
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Why is it a global effect on ICANN if it only concerns a small number of countries?____
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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. ____
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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.____
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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____
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Regards____
1. Ofcourse I recognise there is not light at the end of the tunnel.____
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[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.]____
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Thanks!____
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Greg____
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*Greg Shatan *C: 917-816-6428 <tel:(917)%20816-6428> S: gsshatan Phone-to-Skype: 646-845-9428 <tel:(646)%20845-9428> gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>____
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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.____
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Cheers!____
Sent from my LG G4 Kindly excuse brevity and typos____
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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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*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.
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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>>____
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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____
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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) . ____ > 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>____
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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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...
On Saturday 25 February 2017 07:38 PM, Nigel Roberts wrote:
Ladies and Gentlemen
Although the haste of the pre-transition days has gone, I think we should still be proportionate in spending the corporations legal budget.
It is entirely a waste of money, in my opinion, to instruct lawyers to inform on a proposition which is objected to.
It is irrelevant WHETHER ICANN may waive immunity.
ICANN *SHOULD NOT HAVE* immunity.
Nigel, May I request a clarification on your views, since the question at present is not just "whether ICANN should have immunity" but a more nuanced one - "whether ICANN should have immunity in a manner that it can still avail of the concerned US law to ensure smooth functioning of its community accountability mechanism". Is it you view that ICANN should **not** have immunity from US jurisdiction */*even if* */it can be had while still being able to avail of the concerned US law to ensure smooth functioning of its community accountability mechanism? (Apart of course from normal immunity exceptions like most criminal matters etc.) Thanks. And if your answer is still "no" even to such partial immunity , does it matter to you that, in such a case, ICANN can no way be considered to be moving towards being a "truly international organisation" as called for by the NetMundial statement, arising from a process of which ICANN itself was a co-convenor -- nor does to confirm to the call for "accelerating the globalisation of ICANN" in the Montevideo statement by the technical community (including ICANN). Have we now committed ourselves to moving backwards. parminder
On 25/02/17 13:51, Kavouss Arasteh wrote:
Dear Grec I fully agree with Seun. We must raise this question legally and ask for a NEUTRAL LEGAL VIEW There is désagrément on the matter. Several person said, there is no possibility to Immune ICANN from US LAW Others said .it has had a precedence. This exchange of correspondence is totally counter productive and must be resolved properly. I terrefort request Greg, to formulate the question/ view on the matter and after consultation with Co-Chair ask for an international Neutral Legal View . Regards Kavouss
2017-02-25 10:43 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>>:
On Feb 25, 2017 5:21 AM, "parminder" <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:
Becky, thanks for your response and please see inline.
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.
SO: FWIW, Can we then derive a question from this for the legal to answer? I think it may be better we have something officially/formerly documented with regards to this, otherwise we will just keep coming back to it everytime. It will be good to be able to provide documentation is future to show that it's a matter that has been discussed and brought to a "consensus based" conclusion.
Regards
____
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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
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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 *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____
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Sent from my LG G4 Kindly excuse brevity and typos____
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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? ____
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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.____
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Why is it a global effect on ICANN if it only concerns a small number of countries?____
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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. ____
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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.____
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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____
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Regards____
1. Ofcourse I recognise there is not light at the end of the tunnel.____
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[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.]____
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Thanks!____
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Greg____
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____
*Greg Shatan *C: 917-816-6428 <tel:(917)%20816-6428> S: gsshatan Phone-to-Skype: 646-845-9428 <tel:(646)%20845-9428> gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>____
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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.____
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Cheers!____
Sent from my LG G4 Kindly excuse brevity and typos____
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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.____
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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>
<mailto:paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>>____
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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
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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>____
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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____
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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.
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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____
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*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>
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<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____
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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
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participants (4)
-
Kavouss Arasteh -
Nigel Roberts -
parminder -
Seun Ojedeji