Issue: US's courts' judicial writ over all aspects of ICANN
Issue As a US based entity, ICANN is subject to full range of US laws. Almost any US court can take up for its judicial consideration whether ICANN works within each of such applicable law or not. This brings up a high likelihood that any time in the future ICANN will have to change under US courts' directions its actions taken in pursuance of its global governance function of developing global DNS related policies and implementing them. This is obviously undemocratic and inappropriate that one country's law and its court decide what a global governance body like ICANN will or will not do. Further, it is not only a matter of a court actually finding legal fault with an ICANN action and forcing to change it. Knowing that ICANN is subject to the full range of US public law, ICANN would always take care to keep its actions with them (as it has no doubt done till now). This is what is called as the "chilling effect <https://en.wikipedia.org/wiki/Chilling_effect>". This phenomenon which is already in existence with ICANN's actions, since its inception, is undemocratic and illegitimate from the point of view of the non US people, since they did not participate in making the US laws, and the laws they may have actually developed may even be in contradiction to US law on a particular subject. This phenomenon therefore leads to denial of democratic rights to non US citizens. Solution: Any given court would not heed to any pleadings about ICANN being special as a global governance organisation, and should be treated as such. Neither is the court legally supposed to do, under the US constitution and laws. The only solution there is a general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law.
Dear Parminder Thank you very much for yr devotion and hard works. All 4 issues you have described are well founded ,legitimate and valid. If I am not mistaken, the solutions you have proposed for all 4 issues are identical ( granting ICANN immunity under US International Organisation Immunity Act? I hope you succeed a) to agreement at the level of the group and b) to proved to get it through Congress and, the final blessing of ..,,, While the first one is not an easy task ,the second one seems very improbable, if not impossible due to the fact that it may reopen the transition process which was reluctantly agreed by legislative entity with some difficulties . Moreover , the new administration May not easily accept such motion But every thing could be possible Good luck Kavouss Sent from my iPhone
On 28 Aug 2017, at 04:31, parminder <parminder@itforchange.net> wrote:
Issue
As a US based entity, ICANN is subject to full range of US laws. Almost any US court can take up for its judicial consideration whether ICANN works within each of such applicable law or not. This brings up a high likelihood that any time in the future ICANN will have to change under US courts' directions its actions taken in pursuance of its global governance function of developing global DNS related policies and implementing them. This is obviously undemocratic and inappropriate that one country's law and its court decide what a global governance body like ICANN will or will not do.
Further, it is not only a matter of a court actually finding legal fault with an ICANN action and forcing to change it. Knowing that ICANN is subject to the full range of US public law, ICANN would always take care to keep its actions with them (as it has no doubt done till now). This is what is called as the "chilling effect". This phenomenon which is already in existence with ICANN's actions, since its inception, is undemocratic and illegitimate from the point of view of the non US people, since they did not participate in making the US laws, and the laws they may have actually developed may even be in contradiction to US law on a particular subject. This phenomenon therefore leads to denial of democratic rights to non US citizens.
Solution:
Any given court would not heed to any pleadings about ICANN being special as a global governance organisation, and should be treated as such. Neither is the court legally supposed to do, under the US constitution and laws. The only solution there is a general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law.
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On 28/08/17 03:31, parminder wrote:
Issue
As a US based entity, ICANN is subject to full range of US laws.
And how is this different from ANY jurisdiction ICANN might be incorporated in? Unless you want to give ICANN UN-style diplomatic immunity, which I would most vigorously continue to oppose.
And, of course, as well, as an entity operating in the UK, India, Brazil, Iran, Australia and ... every other country in the world, ICANN is also subject to the full range of those laws to the extent those countries chose to apply them. Since that choice is =completely= independent of the place of incorporation this issue is a non-issue for which no solution is possible, much less required. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 -----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Monday, August 28, 2017 3:43 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Issue: US's courts' judicial writ over all aspects of ICANN On 28/08/17 03:31, parminder wrote:
Issue
As a US based entity, ICANN is subject to full range of US laws.
And how is this different from ANY jurisdiction ICANN might be incorporated in? Unless you want to give ICANN UN-style diplomatic immunity, which I would most vigorously continue to oppose. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
On Monday 28 August 2017 11:28 PM, Paul Rosenzweig wrote:
And, of course, as well, as an entity operating in the UK, India, Brazil, Iran, Australia and ... every other country in the world, ICANN is also subject to the full range of those laws to the extent those countries chose to apply them. Since that choice is =completely= independent of the place of incorporation this issue is a non-issue for which no solution is possible, much less required.
Paul, you did not answer my question -- why are we seeking solutions to US sanction regimes like OFAC, but not say of Saudi Arabia's over Qatar.... By your logic we shd as much be doing so and it is unfair to just single out OFAC. Any explanation you have -- I did ask the question before. BTW, in pursuance of the same objective, that status qup should remain, Phil keeps saying it is only where there are means of effective enforcement that a law is meaningful (which I agree) and you keep saying it does not matter and every legal regime, of every country, is equally applicable on ICANN. parminder
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
-----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Monday, August 28, 2017 3:43 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Issue: US's courts' judicial writ over all aspects of ICANN
On 28/08/17 03:31, parminder wrote:
Issue
As a US based entity, ICANN is subject to full range of US laws. And how is this different from ANY jurisdiction ICANN might be incorporated in?
Unless you want to give ICANN UN-style diplomatic immunity, which I would most vigorously continue to oppose.
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I have answered parminder -- I don't think ICANN can be immune from any law. If Saudi wants to try and impose its law on ICANN regarding Qatar I will see that as a mistake and argue against it. But we can't stop it. Also, of course, it hasn't happened so you are tilting at windmills in a vain effort to internationalize ICANN in a way that simply won't happen Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 -----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Wednesday, August 30, 2017 7:48 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Issue: US's courts' judicial writ over all aspects of ICANN On Monday 28 August 2017 11:28 PM, Paul Rosenzweig wrote:
And, of course, as well, as an entity operating in the UK, India, Brazil, Iran, Australia and ... every other country in the world, ICANN is also subject to the full range of those laws to the extent those countries chose to apply them. Since that choice is =completely= independent of the place of incorporation this issue is a non-issue for which no solution is possible, much less required.
Paul, you did not answer my question -- why are we seeking solutions to US sanction regimes like OFAC, but not say of Saudi Arabia's over Qatar.... By your logic we shd as much be doing so and it is unfair to just single out OFAC. Any explanation you have -- I did ask the question before. BTW, in pursuance of the same objective, that status qup should remain, Phil keeps saying it is only where there are means of effective enforcement that a law is meaningful (which I agree) and you keep saying it does not matter and every legal regime, of every country, is equally applicable on ICANN. parminder
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA06668 4
-----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Monday, August 28, 2017 3:43 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Issue: US's courts' judicial writ over all aspects of ICANN
On 28/08/17 03:31, parminder wrote:
Issue
As a US based entity, ICANN is subject to full range of US laws. And how is this different from ANY jurisdiction ICANN might be incorporated in?
Unless you want to give ICANN UN-style diplomatic immunity, which I would most vigorously continue to oppose.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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Again, this statement is false on its face. US courts are generally courts of limited jurisdiction and it is simply not the case that “almost any US court” can take up judicial consideration of ICANN’s work. Minimum requirements include: a plaintiff, with injury in fact, and standing, and subject matter jurisdiction over the issue at suit. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Sunday, August 27, 2017 10:31 PM To: ws2-jurisdiction@icann.org Subject: [Ws2-jurisdiction] Issue: US's courts' judicial writ over all aspects of ICANN Issue As a US based entity, ICANN is subject to full range of US laws. Almost any US court can take up for its judicial consideration whether ICANN works within each of such applicable law or not. This brings up a high likelihood that any time in the future ICANN will have to change under US courts' directions its actions taken in pursuance of its global governance function of developing global DNS related policies and implementing them. This is obviously undemocratic and inappropriate that one country's law and its court decide what a global governance body like ICANN will or will not do. Further, it is not only a matter of a court actually finding legal fault with an ICANN action and forcing to change it. Knowing that ICANN is subject to the full range of US public law, ICANN would always take care to keep its actions with them (as it has no doubt done till now). This is what is called as the "chilling effect <https://en.wikipedia.org/wiki/Chilling_effect> ". This phenomenon which is already in existence with ICANN's actions, since its inception, is undemocratic and illegitimate from the point of view of the non US people, since they did not participate in making the US laws, and the laws they may have actually developed may even be in contradiction to US law on a particular subject. This phenomenon therefore leads to denial of democratic rights to non US citizens. Solution: Any given court would not heed to any pleadings about ICANN being special as a global governance organisation, and should be treated as such. Neither is the court legally supposed to do, under the US constitution and laws. The only solution there is a general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law.
I don’t think that ICANN’s decision to comply with applicable law – in the US or in any country in which it operates – is the product of a chilling effect. Can you give an example where you believe ICANN has refrained from the "legitimate exercise of natural and legal rights by the threat of legal sanction”? J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 Follow Neustar: LinkedIn / Twitter Reduce your environmental footprint. Print only if necessary. ________________________________ The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message. From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Sunday, August 27, 2017 10:31 PM To: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] Issue: US's courts' judicial writ over all aspects of ICANN Issue As a US based entity, ICANN is subject to full range of US laws. Almost any US court can take up for its judicial consideration whether ICANN works within each of such applicable law or not. This brings up a high likelihood that any time in the future ICANN will have to change under US courts' directions its actions taken in pursuance of its global governance function of developing global DNS related policies and implementing them. This is obviously undemocratic and inappropriate that one country's law and its court decide what a global governance body like ICANN will or will not do. Further, it is not only a matter of a court actually finding legal fault with an ICANN action and forcing to change it. Knowing that ICANN is subject to the full range of US public law, ICANN would always take care to keep its actions with them (as it has no doubt done till now). This is what is called as the "chilling effect<https://urldefense.proofpoint.com/v2/url?u=https-3A__en.wikipedia.org_wiki_C...>". This phenomenon which is already in existence with ICANN's actions, since its inception, is undemocratic and illegitimate from the point of view of the non US people, since they did not participate in making the US laws, and the laws they may have actually developed may even be in contradiction to US law on a particular subject. This phenomenon therefore leads to denial of democratic rights to non US citizens. Solution: Any given court would not heed to any pleadings about ICANN being special as a global governance organisation, and should be treated as such. Neither is the court legally supposed to do, under the US constitution and laws. The only solution there is a general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law.
On Tuesday 29 August 2017 12:19 AM, Burr, Becky via Ws2-jurisdiction wrote:
I don’t think that ICANN’s decision to comply with applicable law – in the US or in any country in which it operates – is the product of a chilling effect.
Yes, it is general acceptance of law, if not the fear of it.... When the law is illegitimate, as when one country's law is applicable wrongly to a global gov process, the same, otherwise legitimate fear of law, is called "chilling effect". Both legitimate fear of law and chilling effect do the same thing, it stops certain behaviour and encourages others.
Can you give an example where you believe ICANN has refrained from the "legitimate exercise of natural and legal rights by the threat of legal sanction”?
The whole meaning of chilling effect is that is it generalised, not obvious and apparent, but strongly there. For instance, can you provide me an instance of when a person "did not" undertake certain road behaviour because of existence of traffic laws... Such negatives are difficult to instantiate, and are supposed to be inferred... parminder
*J. Beckwith Burr**** **Neustar, Inc.***/**Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 *Office:***+1.202.533.2932 *Mobile:***+1.202.352.6367
*Follow Neustar:*LinkedIn*/* Twitter Reduceyour environmental footprint. Print only if necessary.
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*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Sunday, August 27, 2017 10:31 PM *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* [Ws2-jurisdiction] Issue: US's courts' judicial writ over all aspects of ICANN
Issue
As a US based entity, ICANN is subject to full range of US laws. Almost any US court can take up for its judicial consideration whether ICANN works within each of such applicable law or not. This brings up a high likelihood that any time in the future ICANN will have to change under US courts' directions its actions taken in pursuance of its global governance function of developing global DNS related policies and implementing them. This is obviously undemocratic and inappropriate that one country's law and its court decide what a global governance body like ICANN will or will not do.
Further, it is not only a matter of a court actually finding legal fault with an ICANN action and forcing to change it. Knowing that ICANN is subject to the full range of US public law, ICANN would always take care to keep its actions with them (as it has no doubt done till now). This is what is called as the "chilling effect <https://urldefense.proofpoint.com/v2/url?u=https-3A__en.wikipedia.org_wiki_C...>". This phenomenon which is already in existence with ICANN's actions, since its inception, is undemocratic and illegitimate from the point of view of the non US people, since they did not participate in making the US laws, and the laws they may have actually developed may even be in contradiction to US law on a particular subject. This phenomenon therefore leads to denial of democratic rights to non US citizens.
Solution:
Any given court would not heed to any pleadings about ICANN being special as a global governance organisation, and should be treated as such. Neither is the court legally supposed to do, under the US constitution and laws. The only solution there is a general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Parminder, Your mode of argumentation (in all the threads you are involved in at the moment) relies on you requesting that anyone who disagrees with you disproves your statements. You have refused over and over to substantiate the various state of things you are alleging: various types of encroachment by the US government, chilling effects, etc. It is my understanding that the way we work here is that if you want to push for an issue and eventually a recommendation, you have to *prove *what you are asserting. Just asserting that your points are valid because we cannot disprove them does not lead us anywhere in respect of the work that we have to do. As was discussed in the last call (of which you may read the transcript) some were of the opinion that keeping to a step-by-step and pragmatic approach in our recommendations was better than bold requests, especially if the only thing there is in support of these requests is "inferred" threats. 2017-08-30 13:53 GMT+02:00 parminder <parminder@itforchange.net>:
On Tuesday 29 August 2017 12:19 AM, Burr, Becky via Ws2-jurisdiction wrote:
I don’t think that ICANN’s decision to comply with applicable law – in the US or in any country in which it operates – is the product of a chilling effect.
Yes, it is general acceptance of law, if not the fear of it.... When the law is illegitimate, as when one country's law is applicable wrongly to a global gov process, the same, otherwise legitimate fear of law, is called "chilling effect". Both legitimate fear of law and chilling effect do the same thing, it stops certain behaviour and encourages others.
Can you give an example where you believe ICANN has refrained from the "legitimate exercise of natural and legal rights by the threat of legal sanction”?
The whole meaning of chilling effect is that is it generalised, not obvious and apparent, but strongly there. For instance, can you provide me an instance of when a person "did not" undertake certain road behaviour because of existence of traffic laws... Such negatives are difficult to instantiate, and are supposed to be inferred...
parminder
*J. Beckwith Burr* *Neustar, Inc.* / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 *Office:* +1.202.533.2932 *Mobile:* +1.202.352.6367
*Follow Neustar:* LinkedIn */* Twitter Reduce your environmental footprint. Print only if necessary. ------------------------------
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*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of * parminder *Sent:* Sunday, August 27, 2017 10:31 PM *To:* ws2-jurisdiction@icann.org *Subject:* [Ws2-jurisdiction] Issue: US's courts' judicial writ over all aspects of ICANN
Issue
As a US based entity, ICANN is subject to full range of US laws. Almost any US court can take up for its judicial consideration whether ICANN works within each of such applicable law or not. This brings up a high likelihood that any time in the future ICANN will have to change under US courts' directions its actions taken in pursuance of its global governance function of developing global DNS related policies and implementing them. This is obviously undemocratic and inappropriate that one country's law and its court decide what a global governance body like ICANN will or will not do.
Further, it is not only a matter of a court actually finding legal fault with an ICANN action and forcing to change it. Knowing that ICANN is subject to the full range of US public law, ICANN would always take care to keep its actions with them (as it has no doubt done till now). This is what is called as the "chilling effect <https://urldefense.proofpoint.com/v2/url?u=https-3A__en.wikipedia.org_wiki_C...>". This phenomenon which is already in existence with ICANN's actions, since its inception, is undemocratic and illegitimate from the point of view of the non US people, since they did not participate in making the US laws, and the laws they may have actually developed may even be in contradiction to US law on a particular subject. This phenomenon therefore leads to denial of democratic rights to non US citizens.
Solution:
Any given court would not heed to any pleadings about ICANN being special as a global governance organisation, and should be treated as such. Neither is the court legally supposed to do, under the US constitution and laws. The only solution there is a general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law.
_______________________________________________ Ws2-jurisdiction mailing listWs2-jurisdiction@icann.orghttps://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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-- Raphaël Beauregard-Lacroix LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
On Wednesday 30 August 2017 05:57 PM, Raphaël BEAUREGARD-LACROIX wrote:
Parminder,
Your mode of argumentation (in all the threads you are involved in at the moment) relies on you requesting that anyone who disagrees with you disproves your statements.
Raphael, have you and others of similar responses ever thought about how arguing for changing the status quo can be of a very different nature than defending it? Or does such simple nuances entirely escape you.... BTW, did you have any proof that NTIA had done anything wrong in its oversight over IANA....? Why was that arrangement changed, without any such proofs? Hope you'd answer this. The problem is always about power: those who take up the power of making the rules will inevitable win, and you seem to have that power on your side. And so you can always invent conditions seek proofs, decide what constitutes proof and what not.....
You have refused over and over to substantiate the various state of things you are alleging: various types of encroachment by the US government, chilling effects, etc.
It is my understanding that the way we work here is that if you want to push for an issue and eventually a recommendation, you have to /prove /what you are asserting. Just asserting that your points are valid because we cannot disprove them does not lead us anywhere in respect of the work that we have to do.
As was discussed in the last call (of which you may read the transcript) some were of the opinion that keeping to a step-by-step and pragmatic approach in our recommendations was better than bold requests, especially if the only thing there is in support of these requests is "inferred" threats.
Ah! pragmatism is the status quo-ist's sweet term. How good it sounds. Yes, I know and inhabit in a world where people and institutions prepare and arrange for inferred threats. And I know, you live and do so to... Just we chose some lines of arguments for some things and others for other things... parminder
2017-08-30 13:53 GMT+02:00 parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>>:
On Tuesday 29 August 2017 12:19 AM, Burr, Becky via Ws2-jurisdiction wrote:
I don’t think that ICANN’s decision to comply with applicable law – in the US or in any country in which it operates – is the product of a chilling effect.
Yes, it is general acceptance of law, if not the fear of it.... When the law is illegitimate, as when one country's law is applicable wrongly to a global gov process, the same, otherwise legitimate fear of law, is called "chilling effect". Both legitimate fear of law and chilling effect do the same thing, it stops certain behaviour and encourages others.
Can you give an example where you believe ICANN has refrained from the "legitimate exercise of natural and legal rights by the threat of legal sanction”?
The whole meaning of chilling effect is that is it generalised, not obvious and apparent, but strongly there. For instance, can you provide me an instance of when a person "did not" undertake certain road behaviour because of existence of traffic laws... Such negatives are difficult to instantiate, and are supposed to be inferred...
parminder
*J. Beckwith Burr**** **Neustar, Inc.***/**Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 *Office:***+1.202.533.2932 *Mobile:***+1.202.352.6367
*Follow Neustar:*LinkedIn*/* Twitter Reduceyour environmental footprint. Print only if necessary.
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The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message.
*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:* Sunday, August 27, 2017 10:31 PM *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* [Ws2-jurisdiction] Issue: US's courts' judicial writ over all aspects of ICANN
Issue
As a US based entity, ICANN is subject to full range of US laws. Almost any US court can take up for its judicial consideration whether ICANN works within each of such applicable law or not. This brings up a high likelihood that any time in the future ICANN will have to change under US courts' directions its actions taken in pursuance of its global governance function of developing global DNS related policies and implementing them. This is obviously undemocratic and inappropriate that one country's law and its court decide what a global governance body like ICANN will or will not do.
Further, it is not only a matter of a court actually finding legal fault with an ICANN action and forcing to change it. Knowing that ICANN is subject to the full range of US public law, ICANN would always take care to keep its actions with them (as it has no doubt done till now). This is what is called as the "chilling effect <https://urldefense.proofpoint.com/v2/url?u=https-3A__en.wikipedia.org_wiki_C...>". This phenomenon which is already in existence with ICANN's actions, since its inception, is undemocratic and illegitimate from the point of view of the non US people, since they did not participate in making the US laws, and the laws they may have actually developed may even be in contradiction to US law on a particular subject. This phenomenon therefore leads to denial of democratic rights to non US citizens.
Solution:
Any given court would not heed to any pleadings about ICANN being special as a global governance organisation, and should be treated as such. Neither is the court legally supposed to do, under the US constitution and laws. The only solution there is a general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law.
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In support of my contention that ICANN needs to remain esubject to the Rule of Law, I offer not "inferred threats" but demonstrated historic behaviour. "That was then, this is now" is not a suitable constitutional protection. Simply becuase no agency of the UK or US government is seeking to re-establish the Divine Right of Kings does not mean that our respective constitutions should not continue to be based on the separation of powers and the rule of law. It's the same with ICANN. I repeat again, neither I nor a number of my colleagues will permit ICANN to again ever assert that it has ultimate power over us, and/or that it must be immune from the consequences of its actions. On 30/08/17 13:27, Raphaël BEAUREGARD-LACROIX wrote:
Parminder,
Your mode of argumentation (in all the threads you are involved in at the moment) relies on you requesting that anyone who disagrees with you disproves your statements.
You have refused over and over to substantiate the various state of things you are alleging: various types of encroachment by the US government, chilling effects, etc.
It is my understanding that the way we work here is that if you want to push for an issue and eventually a recommendation, you have to /prove /what you are asserting. Just asserting that your points are valid because we cannot disprove them does not lead us anywhere in respect of the work that we have to do.
As was discussed in the last call (of which you may read the transcript) some were of the opinion that keeping to a step-by-step and pragmatic approach in our recommendations was better than bold requests, especially if the only thing there is in support of these requests is "inferred" threats.
2017-08-30 13:53 GMT+02:00 parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>>:
On Tuesday 29 August 2017 12:19 AM, Burr, Becky via Ws2-jurisdiction wrote:
I don’t think that ICANN’s decision to comply with applicable law – in the US or in any country in which it operates – is the product of a chilling effect.
Yes, it is general acceptance of law, if not the fear of it.... When the law is illegitimate, as when one country's law is applicable wrongly to a global gov process, the same, otherwise legitimate fear of law, is called "chilling effect". Both legitimate fear of law and chilling effect do the same thing, it stops certain behaviour and encourages others.
Can you give an example where you believe ICANN has refrained from the "legitimate exercise of natural and legal rights by the threat of legal sanction”?
The whole meaning of chilling effect is that is it generalised, not obvious and apparent, but strongly there. For instance, can you provide me an instance of when a person "did not" undertake certain road behaviour because of existence of traffic laws... Such negatives are difficult to instantiate, and are supposed to be inferred...
parminder
*J. Beckwith Burr**** **Neustar, Inc.***/**Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 *Office:***+1.202.533.2932 *Mobile:***+1.202.352.6367____
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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:* Sunday, August 27, 2017 10:31 PM *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* [Ws2-jurisdiction] Issue: US's courts' judicial writ over all aspects of ICANN____
__ __
Issue____
As a US based entity, ICANN is subject to full range of US laws. Almost any US court can take up for its judicial consideration whether ICANN works within each of such applicable law or not. This brings up a high likelihood that any time in the future ICANN will have to change under US courts' directions its actions taken in pursuance of its global governance function of developing global DNS related policies and implementing them. This is obviously undemocratic and inappropriate that one country's law and its court decide what a global governance body like ICANN will or will not do.____
Further, it is not only a matter of a court actually finding legal fault with an ICANN action and forcing to change it. Knowing that ICANN is subject to the full range of US public law, ICANN would always take care to keep its actions with them (as it has no doubt done till now). This is what is called as the "chilling effect <https://urldefense.proofpoint.com/v2/url?u=https-3A__en.wikipedia.org_wiki_C...>". This phenomenon which is already in existence with ICANN's actions, since its inception, is undemocratic and illegitimate from the point of view of the non US people, since they did not participate in making the US laws, and the laws they may have actually developed may even be in contradiction to US law on a particular subject. This phenomenon therefore leads to denial of democratic rights to non US citizens. ____
Solution:____
Any given court would not heed to any pleadings about ICANN being special as a global governance organisation, and should be treated as such. Neither is the court legally supposed to do, under the US constitution and laws. The only solution there is a general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law. ____
__ __
__ __
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Translation: "No I cannot." Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Wednesday, August 30, 2017 7:54 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] [EXTERNAL] Re: Issue: US's courts' judicial writ over all aspects of ICANN On Tuesday 29 August 2017 12:19 AM, Burr, Becky via Ws2-jurisdiction wrote: I don't think that ICANN's decision to comply with applicable law - in the US or in any country in which it operates - is the product of a chilling effect. Yes, it is general acceptance of law, if not the fear of it.... When the law is illegitimate, as when one country's law is applicable wrongly to a global gov process, the same, otherwise legitimate fear of law, is called "chilling effect". Both legitimate fear of law and chilling effect do the same thing, it stops certain behaviour and encourages others. Can you give an example where you believe ICANN has refrained from the "legitimate exercise of natural and legal rights by the threat of legal sanction"? The whole meaning of chilling effect is that is it generalised, not obvious and apparent, but strongly there. For instance, can you provide me an instance of when a person "did not" undertake certain road behaviour because of existence of traffic laws... Such negatives are difficult to instantiate, and are supposed to be inferred... parminder J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 Follow Neustar: LinkedIn / Twitter Reduce your environmental footprint. Print only if necessary. _____ The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message. From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Sunday, August 27, 2017 10:31 PM To: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] Issue: US's courts' judicial writ over all aspects of ICANN Issue As a US based entity, ICANN is subject to full range of US laws. Almost any US court can take up for its judicial consideration whether ICANN works within each of such applicable law or not. This brings up a high likelihood that any time in the future ICANN will have to change under US courts' directions its actions taken in pursuance of its global governance function of developing global DNS related policies and implementing them. This is obviously undemocratic and inappropriate that one country's law and its court decide what a global governance body like ICANN will or will not do. Further, it is not only a matter of a court actually finding legal fault with an ICANN action and forcing to change it. Knowing that ICANN is subject to the full range of US public law, ICANN would always take care to keep its actions with them (as it has no doubt done till now). This is what is called as the "chilling effect <https://urldefense.proofpoint.com/v2/url?u=https-3A__en.wikipedia.org_wiki_ Chilling-5Feffect&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8 TjDmrxdYahOP8WDDkMr4k&m=8TIH8TteuvkkYq6CySpUDsb-rFI-WPDqQStlF4NiiBo&s=ng0bED piuJb18V4iMwJMA0HArPdpsdPFUEfcZW8cfGw&e=> ". This phenomenon which is already in existence with ICANN's actions, since its inception, is undemocratic and illegitimate from the point of view of the non US people, since they did not participate in making the US laws, and the laws they may have actually developed may even be in contradiction to US law on a particular subject. This phenomenon therefore leads to denial of democratic rights to non US citizens. Solution: Any given court would not heed to any pleadings about ICANN being special as a global governance organisation, and should be treated as such. Neither is the court legally supposed to do, under the US constitution and laws. The only solution there is a general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
participants (6)
-
Arasteh -
Burr, Becky -
Nigel Roberts -
parminder -
Paul Rosenzweig -
Raphaël BEAUREGARD-LACROIX