FW: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results
On Friday 30 December 2016 03:23 AM, Mueller, Milton L wrote:
Parminder said “I havent seen not only no attempt to explore ways to stop such influence by you, and many others here
Translated, it means:
I just wanted to know what do you propose to do about this clearly identified jurisdiction problem?
MM: First, it isn’t all that clearly identified. Other than OFAC, we need to explore the scenarios, if any, in which it might have impact.
You say OFAC issue is clear but not others..Others have listed <http://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf> OFAC plus non OFAC issues, which are a lot of groups. But lets say even with OFAC, what do you propose we do about it? BTW, I am sure you know the following passage in the GTLD handbook. It is clear that ICANN must and would comply with all US laws, rules and regulations, be it OFAC, intellectual property related, trade sanctions, FFC orders, any new laws not imagined till now, the new hypothetical Trump Act, whatever........................ Is this not an identification of a problem enough? I see it as a clearly identified problem, on solutions for whic hwe should be working, even without waiting for responses to our proposed questionnaire. GTLD Guidebook Version 2012-1-11 Legal Compliance -- ICANN must comply with all U.S. laws, rules, and regulations. One such set of regulations is the economic and trade sanctions program administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. These sanctions have been imposed on certain countries, as well as individuals and entities that appear on OFAC's List of Specially Designated Nationals and Blocked Persons (the SDN List). ICANN is prohibited from providing most goods or services to residents of sanctioned countries or their governmental entities or to SDNs without an applicable U.S. government authorization or exemption. ICANN generally will not seek a license to provide goods or services to an individual or entity on the SDN List. In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs, but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. In any given case, however, OFAC could decide not to issue a requested license. The current Q4, as I have said, does a lousy job of this. Sure, but in all this long discussion you havent mentioned what kind of question will do a non-lousy job.
PS: Further, if going down an international treaty route is problematic for you, do you think jurisdictional immunity under the International Organisations Immunities Act is a good way to address this jurisdictional problem?
MM: International treaty would take decades, and given the irrationality of inter-state rivalries, seems unlikely ever to produce a good solution.
You have surely changed your views 180 degrees over the last 10 years, since when you had advocated, in 2005-06, for a governments negotiated "Framework convention on the Internet". That is ok, but others still do believe that the comity of nation states can achieve much. I dont see your global network of private contracts take up global governance, god forbid!
MM: The IOIA isn’t all that promising, keep in mind that to qualify as an “international organization” under that Act the US Congress has to recognize the organization as such and thus you would be bringing ICANN back under the authority of the US congress,
This is just some cheap intellectual dishonesty (this is for calling me "typically manipulative", in another email). Milton, are you trying to tell us that if the CCWG recommends that ICANN be given immunity under IOIA ONLY THEN would or can ICANN get subject to Congress!!!! And you call yourself a professor of policy studies or whatever!! The US congress can, if it so decides, right now eat ICANN with breakfast, with no invitation required, from CCWG, from the so called "Internet community", or from prof milton. What really do you mean to say that seeking immunity under IOIA will "bring ICANN back under the authority of the US congress"?? When did it go out of authority of US congress? It must take extra-ordinary intellectual dishonesty and disingenuity for a US prof of policy to tell us that trying to seek immunity from US jurisdiction, even if under a US law, will actually being ICANN "back under" US/ congress's authority/ jurisdiction....
which doesn’t seem so nice after the Republican takeover
As far as possible, I like not to talk about other countries' democratic choices . But it is your (US's) problem really! Why we should get thrown into this, who never voted this way or that-- majority of USians voted a particular way, and you are in a social contract together, and so just accept it. But why should we, non USiasn, have to go with what happens or does not happen to your Congress. Milton/ others, are you guys left with no feeling of democratic fraternity with the rest of the world at all - is this the level that we are getting reduced to.
and our experiences last September. Indeed, the IOIA was designed with state-based, diplomatic organizations in mind – it applies to the UN, the Holy See and the European Central Bank for example.
Now more than a dozen times I have given the example of International Fertilizer Development Center, as a US non profit under IOIA given immunity, and there are many others. Only yesterday I linked the entire list of orgs under IOIA immunity, many of them non IGOs. But you havent noticed it, yet, right. Try some intellectual honesty, Milton, a term you throw around a lot. Do you not see the hypocrisy here, but how can you, that would be a contradiction in terms.
So your holding up of this option is what drives Corwin’s sense that this debate is about whether ICANN turns into an IGO.
Should I write it on stamp paper with notary authentication and post it your home, that, no IOIA does not only give immunity to IGOs. It has given imunity to many non IGos. If you do not have a good argument dont just keep throwing around mis- representations.
Finally, the exemptions of the IOIA confer all kinds of immunities on the organization that we might not want, such as exemptions from property and income taxes (I know you are a big fan of those)
I thought ICANN is already exempted from income tax due to its non profit status. But, then certainly I do not want it to be paying tax to the US on income it makes from a global governance activity. Why should it?
and worse, immunity from lawsuits. Are you kidding me? You want ICANN to be immune from lawsuits?
So, Milton, you havent till now realised that the jurisdiction issue is about immunity from lawsuits, brought under the laws of one country, to which the rest of the world does not contribute? Yes, we do not want anyone to be able to challenge .ir or .africa, or a hypothetical Indian generic drugs company owned .Sunpharma. under US laws. Becuase these laws, and the US courts, apply the test of US public interest, not, or certainly in priority to, that of global Interest. All countries do it, there is no other way. That was always the whole point. parminder
Sorry for responding slowly, I took a holiday over the new year. Presumably we will talk tomorrow but here are some observations You say OFAC issue is clear but not others.. Others have listed<http://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf> OFAC plus non OFAC issues, which are a lot of groups. But lets say even with OFAC, what do you propose we do about it? MM: The “others” you cite who have listed problems is your own organization. You may be the only person on the planet who refers to yourself as “others.” Be that as it may, it doesn’t make sense to jump immediately to “what to do about it.” As many others on this list have said, we are in the problem-collection stage and trying to carefully define what is a problem before we hunt for solutions. I think you have lost sight of the context of this entire discussion, which was to send out questions to collect information and data about actual problems. You (and Kavouss) have succeeded in delaying this for weeks now with trivial objections. BTW, I am sure you know the following passage in the GTLD handbook. It is clear that ICANN must and would comply with all US laws, rules and regulations, be it OFAC, intellectual property related, trade sanctions, FFC orders, any new laws not imagined till now, the new hypothetical Trump Act, whatever........................ Is this not an identification of a problem enough? MM: If you think it is a problem then respond to the request for information with that problem. Put it on the list. Next…. The current Q4, as I have said, does a lousy job of this. Sure, but in all this long discussion you havent mentioned what kind of question will do a non-lousy job. We need to discuss at length how to frame questions about the bigger issues, and as I have said repeatedly, we need to detach that discussion from the smaller jurisdictional issues. Ironically, you are shooting yourself in the foot by preventing that discussion. We cannot have a proper discussion of what kind of question will do a non-lousy job as long as you and a few others insist on rushing through a very broad and not well thought out question. I know why you are doing it, it is because you are afraid that the second round of questions will never happen. I suppose that is theoretically possible. But instead of delaying sending out the first 3 questions, you would better spend your time framing how to solicit meaningful data and answers to the broader questions. I haven’t heard a convincing argument yet as to why this can’t be done in two phases. The arguments are self-contradictory, people say no one will have the energy to answer two rounds of questions. Apparently there is limitless energy to debate whether the questions should be bundled and what should be in the preamble. You have surely changed your views 180 degrees over the last 10 years, since when you had advocated, in 2005-06, for a governments negotiated "Framework convention on the Internet". That is ok, but others still do believe that the comity of nation states can achieve much. I dont see your global network of private contracts take up global governance, god forbid! MM: No, it’s more like 30 degrees. We proposed a framework convention 11-12 years ago. The aftermath of WSIS and the behavior of governments (GAC) in ICANN made it clear that we simply cannot rely on states to come up with an impartial, enabling treaty for IG. Half the states will grab for special privileges that empower them (witness the international organization naming farce in ICANN) and the other half will veto anything that deviates from a comfortable status quo. There’s nothing wrong with adjusting one’s position to reality - you ought to try it some time! Milton, are you trying to tell us that if the CCWG recommends that ICANN be given immunity under IOIA ONLY THEN would or can ICANN get subject to Congress!!!! And you call yourself a professor of policy studies or whatever!! The US congress can, if it so decides, right now eat ICANN with breakfast, with no invitation required, MM: False. Right now, ICANN is basically free of Congress. The House was unable to muster serious support for blocking the transition. The only way to reassert control would be to 1) pass legislation, or 2) have a debate about applying the IOIA. In case you hadn’t noticed, passing legislation in the US is hard. Getting sufficient majorities in both houses for something that the entire tech industry and civil society opposes, would not be easy. What you don’t seem to understand is that to invoke IOIA treatment for ICANN basically puts ICANN right back in the hands of Congress. Congress would be required to make a decision about ICANN, which would put it in a position to debate whether ICANN should have those immunities. That would inevitably turn into a debate about how much (not whether) U.S. Congress can exert control over ICANN. Frankly, for anyone who foams at the mouth about US jurisdiction, as you do, to propose a congressional act to apply IOIA to ICANN is pretty amusing. and our experiences last September. Indeed, the IOIA was designed with state-based, diplomatic organizations in mind – it applies to the UN, the Holy See and the European Central Bank for example. Now more than a dozen times I have given the example of International Fertilizer Development Center, as a US non profit under IOIA given immunity, and there are many others. MM: I’d invite you to take a look at the Congressional debates over some of these applications of IOIA. In particular, look at what happened with Interpol. Imagine what Senator Cruz would do if ICANN came to Congress hat in hand asking for its blessing for IOIA immunity. You think this is going to “internationalize” ICANN? Really? Something about that position smells like fertilizer.
On Thursday 05 January 2017 11:02 PM, Mueller, Milton L wrote:
Sorry for responding slowly, I took a holiday over the new year. Presumably we will talk tomorrow but here are some observations
You say OFAC issue is clear but not others..Others have listed <http://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf> OFAC plus non OFAC issues, which are a lot of groups. But lets say even with OFAC, what do you propose we do about it?
MM: The “others” you cite who have listed problems is your own organization. You may be the only person on the planet who refers to yourself as “others.”
Milton, your persistence with misrepresentations, lies and insulting personal remarks is reaching a limit that would make the work of this group quite difficult. This may be something the Chairs would want to look into. Meanwhile, you say that "others" in the above reference to those who made the quoted statement <http://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf> refers to just my organisation, or worse, to me alone, when the link to "Others have listed" above directly takes to you a document signed by practically every civil society organisation in India active in IG, barring maybe one or two. Plus, it has two of largest global networks of civil society organisations active in IG, Association of Progressive Communications and Just Net Coalition whose membership, each consisting of dozens of global and national organisations, can be seen respectively, here <https://www.apc.org/en/members> and here <http://justnetcoalition.org/jnc-members> . When you call a statement prepared and signed by all these, maybe close to a hundred organisations, as being a statement by me, and none else, I simply do not know what to make or do about it. Sorry, but are you out of your mind! What you say below is not much more rationale - things like, you actually want the question 4 in some form to go out but have some superior strategies that, apart from being un-understandable, are apparently quite opposed to all those who have actually proposed and supported it (that btw is quite condescending) ; that it is some outside act that would make ICANN subject to congress and it seemingly is not so as things are now (a simple private member's bill will take ICANN to congress; and I also know pretty well how easy or difficult is it to pass legislation in the congress, you may want to follow how the recent one on removing foreign sovereign immunity (JASTA) was passed super quickly despite President's initial veto); and are making your case out of expectations of what Senator Cruz will probably do in the Congress, but , now that you broach the subject, I dare say what I did not want to, nothing about what President Trump may do in the White House, with a republican congress and senate....... I have no intention to play this personalised ping pong with you any further. You are not making any stable rational arguments. However, if any such does come from you, as from anyone else, I will surely engage. parminder
Be that as it may, it doesn’t make sense to jump immediately to “what to do about it.” As many others on this list have said, we are in the problem-collection stage and trying to carefully define what is a problem before we hunt for solutions. I think you have lost sight of the context of this entire discussion, which was to send out questions to collect information and data about actual problems. You (and Kavouss) have succeeded in delaying this for weeks now with trivial objections.
BTW, I am sure you know the following passage in the GTLD handbook. It is clear that ICANN must and would comply with all US laws, rules and regulations, be it OFAC, intellectual property related, trade sanctions, FFC orders, any new laws not imagined till now, the new hypothetical Trump Act, whatever........................ Is this not an identification of a problem enough?
MM: If you think it is a problem then respond to the request for information with that problem. Put it on the list. Next….
The current Q4, as I have said, does a lousy job of this.
Sure, but in all this long discussion you havent mentioned what kind of question will do a non-lousy job.
We need to discuss at length how to frame questions about the bigger issues, and as I have said repeatedly, we need to detach that discussion from the smaller jurisdictional issues. Ironically, you are shooting yourself in the foot by preventing that discussion. We cannot have a proper discussion of what kind of question will do a non-lousy job as long as you and a few others insist on rushing through a very broad and not well thought out question. I know why you are doing it, it is because you are afraid that the second round of questions will never happen. I suppose that is theoretically possible. But instead of delaying sending out the first 3 questions, you would better spend your time framing how to solicit meaningful data and answers to the broader questions.
I haven’t heard a convincing argument yet as to why this can’t be done in two phases. The arguments are self-contradictory, people say no one will have the energy to answer two rounds of questions. Apparently there is limitless energy to debate whether the questions should be bundled and what should be in the preamble.
You have surely changed your views 180 degrees over the last 10 years, since when you had advocated, in 2005-06, for a governments negotiated "Framework convention on the Internet". That is ok, but others still do believe that the comity of nation states can achieve much. I dont see your global network of private contracts take up global governance, god forbid!
MM: No, it’s more like 30 degrees. We proposed a framework convention 11-12 years ago. The aftermath of WSIS and the behavior of governments (GAC) in ICANN made it clear that we simply cannot rely on states to come up with an impartial, enabling treaty for IG. Half the states will grab for special privileges that empower them (witness the international organization naming farce in ICANN) and the other half will veto anything that deviates from a comfortable status quo. There’s nothing wrong with adjusting one’s position to reality - you ought to try it some time!
Milton, are you trying to tell us that if the CCWG recommends that ICANN be given immunity under IOIA ONLY THEN would or can ICANN get subject to Congress!!!! And you call yourself a professor of policy studies or whatever!! The US congress can, if it so decides, right now eat ICANN with breakfast, with no invitation required,
MM: False. Right now, ICANN is basically free of Congress. The House was unable to muster serious support for blocking the transition. The only way to reassert control would be to 1) pass legislation, or 2) have a debate about applying the IOIA. In case you hadn’t noticed, passing legislation in the US is hard. Getting sufficient majorities in both houses for something that the entire tech industry and civil society opposes, would not be easy.
What you don’t seem to understand is that to invoke IOIA treatment for ICANN basically puts ICANN right back in the hands of Congress. Congress would be required to make a decision about ICANN, which would put it in a position to debate whether ICANN should have those immunities. That would inevitably turn into a debate about how much (not whether) U.S. Congress can exert control over ICANN. Frankly, for anyone who foams at the mouth about US jurisdiction, as you do, to propose a congressional act to apply IOIA to ICANN is pretty amusing.
and our experiences last September. Indeed, the IOIA was designed with state-based, diplomatic organizations in mind – it applies to the UN, the Holy See and the European Central Bank for example.
Now more than a dozen times I have given the example of International Fertilizer Development Center, as a US non profit under IOIA given immunity, and there are many others.
MM: I’d invite you to take a look at the Congressional debates over some of these applications of IOIA. In particular, look at what happened with Interpol. Imagine what Senator Cruz would do if ICANN came to Congress hat in hand asking for its blessing for IOIA immunity. You think this is going to “internationalize” ICANN? Really? Something about that position smells like fertilizer.
All, I would like to make an appeal for civility and tolerance on this list. Civility in how one deals with or responds to other members contributions. Tolerance in how one reacts to (typically non-substantive) statements that are perceived as slights. In other words, please try not to offend and please try not to be easily offended. These types of interactions inevitably take us away from substance and delay our progress. This can be looked at as a corollary of, or even an application of, Postel's Law: "Be conservative in what you send, be liberal in what you accept" On a related note, it's critical that we each make a sincere effort to understand each other's points and positions. If you don't understand, ask questions that will help you understand. The questions should be constructively and collaboratively. On the other side, if you feel you are not being understood, please try to clarify or rephrase or give examples to illustrate your point. Again, phrase tese constructively and collaboratively. Finally, let's try to stick to and respond to matters of substance. That is where our work lies. Everything else is a distraction. Thank you. Greg On Thu, Jan 5, 2017 at 1:24 PM, parminder <parminder@itforchange.net> wrote:
On Thursday 05 January 2017 11:02 PM, Mueller, Milton L wrote:
Sorry for responding slowly, I took a holiday over the new year. Presumably we will talk tomorrow but here are some observations
You say OFAC issue is clear but not others.. Others have listed <http://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf> OFAC plus non OFAC issues, which are a lot of groups. But lets say even with OFAC, what do you propose we do about it?
MM: The “others” you cite who have listed problems is your own organization. You may be the only person on the planet who refers to yourself as “others.”
Milton, your persistence with misrepresentations, lies and insulting personal remarks is reaching a limit that would make the work of this group quite difficult. This may be something the Chairs would want to look into. Meanwhile, you say that "others" in the above reference to those who made the quoted statement <http://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf> refers to just my organisation, or worse, to me alone, when the link to "Others have listed" above directly takes to you a document signed by practically every civil society organisation in India active in IG, barring maybe one or two. Plus, it has two of largest global networks of civil society organisations active in IG, Association of Progressive Communications and Just Net Coalition whose membership, each consisting of dozens of global and national organisations, can be seen respectively, here <https://www.apc.org/en/members> and here <http://justnetcoalition.org/jnc-members> . When you call a statement prepared and signed by all these, maybe close to a hundred organisations, as being a statement by me, and none else, I simply do not know what to make or do about it. Sorry, but are you out of your mind!
What you say below is not much more rationale - things like, you actually want the question 4 in some form to go out but have some superior strategies that, apart from being un-understandable, are apparently quite opposed to all those who have actually proposed and supported it (that btw is quite condescending) ; that it is some outside act that would make ICANN subject to congress and it seemingly is not so as things are now (a simple private member's bill will take ICANN to congress; and I also know pretty well how easy or difficult is it to pass legislation in the congress, you may want to follow how the recent one on removing foreign sovereign immunity (JASTA) was passed super quickly despite President's initial veto); and are making your case out of expectations of what Senator Cruz will probably do in the Congress, but , now that you broach the subject, I dare say what I did not want to, nothing about what President Trump may do in the White House, with a republican congress and senate.......
I have no intention to play this personalised ping pong with you any further. You are not making any stable rational arguments. However, if any such does come from you, as from anyone else, I will surely engage.
parminder
Be that as it may, it doesn’t make sense to jump immediately to “what to do about it.” As many others on this list have said, we are in the problem-collection stage and trying to carefully define what is a problem before we hunt for solutions. I think you have lost sight of the context of this entire discussion, which was to send out questions to collect information and data about actual problems. You (and Kavouss) have succeeded in delaying this for weeks now with trivial objections.
BTW, I am sure you know the following passage in the GTLD handbook. It is clear that ICANN must and would comply with all US laws, rules and regulations, be it OFAC, intellectual property related, trade sanctions, FFC orders, any new laws not imagined till now, the new hypothetical Trump Act, whatever........................ Is this not an identification of a problem enough?
MM: If you think it is a problem then respond to the request for information with that problem. Put it on the list. Next….
The current Q4, as I have said, does a lousy job of this.
Sure, but in all this long discussion you havent mentioned what kind of question will do a non-lousy job.
We need to discuss at length how to frame questions about the bigger issues, and as I have said repeatedly, we need to detach that discussion from the smaller jurisdictional issues. Ironically, you are shooting yourself in the foot by preventing that discussion. We cannot have a proper discussion of what kind of question will do a non-lousy job as long as you and a few others insist on rushing through a very broad and not well thought out question. I know why you are doing it, it is because you are afraid that the second round of questions will never happen. I suppose that is theoretically possible. But instead of delaying sending out the first 3 questions, you would better spend your time framing how to solicit meaningful data and answers to the broader questions.
I haven’t heard a convincing argument yet as to why this can’t be done in two phases. The arguments are self-contradictory, people say no one will have the energy to answer two rounds of questions. Apparently there is limitless energy to debate whether the questions should be bundled and what should be in the preamble.
You have surely changed your views 180 degrees over the last 10 years, since when you had advocated, in 2005-06, for a governments negotiated "Framework convention on the Internet". That is ok, but others still do believe that the comity of nation states can achieve much. I dont see your global network of private contracts take up global governance, god forbid!
MM: No, it’s more like 30 degrees. We proposed a framework convention 11-12 years ago. The aftermath of WSIS and the behavior of governments (GAC) in ICANN made it clear that we simply cannot rely on states to come up with an impartial, enabling treaty for IG. Half the states will grab for special privileges that empower them (witness the international organization naming farce in ICANN) and the other half will veto anything that deviates from a comfortable status quo. There’s nothing wrong with adjusting one’s position to reality - you ought to try it some time!
Milton, are you trying to tell us that if the CCWG recommends that ICANN be given immunity under IOIA ONLY THEN would or can ICANN get subject to Congress!!!! And you call yourself a professor of policy studies or whatever!! The US congress can, if it so decides, right now eat ICANN with breakfast, with no invitation required,
MM: False. Right now, ICANN is basically free of Congress. The House was unable to muster serious support for blocking the transition. The only way to reassert control would be to 1) pass legislation, or 2) have a debate about applying the IOIA. In case you hadn’t noticed, passing legislation in the US is hard. Getting sufficient majorities in both houses for something that the entire tech industry and civil society opposes, would not be easy.
What you don’t seem to understand is that to invoke IOIA treatment for ICANN basically puts ICANN right back in the hands of Congress. Congress would be required to make a decision about ICANN, which would put it in a position to debate whether ICANN should have those immunities. That would inevitably turn into a debate about how much (not whether) U.S. Congress can exert control over ICANN. Frankly, for anyone who foams at the mouth about US jurisdiction, as you do, to propose a congressional act to apply IOIA to ICANN is pretty amusing.
and our experiences last September. Indeed, the IOIA was designed with state-based, diplomatic organizations in mind – it applies to the UN, the Holy See and the European Central Bank for example.
Now more than a dozen times I have given the example of International Fertilizer Development Center, as a US non profit under IOIA given immunity, and there are many others.
MM: I’d invite you to take a look at the Congressional debates over some of these applications of IOIA. In particular, look at what happened with Interpol. Imagine what Senator Cruz would do if ICANN came to Congress hat in hand asking for its blessing for IOIA immunity. You think this is going to “internationalize” ICANN? Really? Something about that position smells like fertilizer.
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participants (3)
-
Greg Shatan -
Mueller, Milton L -
parminder