[CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results

[parminder]

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

>  
>

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