[CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa

Sun Jun 19 22:05:44 UTC 2016

Depends on your idea of "fun".

>From my perspective, the whole process is an unnecessary irritation that should have been settled with finality in WS1.

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

From: Mueller, Milton L [mailto:milton at gatech.edu]
Sent: Sunday, June 19, 2016 5:54 PM
To: egmorris1 at toast.net; parminder; Seun Ojedeji; Phil Corwin
Cc: accountability-cross-community at icann.org
Subject: RE: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa

Hey, I see that WS2 jurisdiction track is open!
It's going to be a fun one!

From: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Edward Morris
Sent: Sunday, June 19, 2016 12:41 PM
To: parminder <parminder at itforchange.net<mailto:parminder at itforchange.net>>; Seun Ojedeji <seun.ojedeji at gmail.com<mailto:seun.ojedeji at gmail.com>>; Phil Corwin <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>>
Cc: accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa

Phil,

Completely agree and let me thank you personally for your post. With seven law degrees / diplomas from five universities in three countries on two continents I was getting a bit nervous that I had wasted all my time and money getting those pieces of educational paper.  All that education and I never came across this concept of "international jurisdiction". Thanks for stating the jurisdictional basis of law that I've been taught in your usual eloquent way. Happy to learn all those universities hadn't ignored in their teaching what possibly would be the mother of all jurisdictions - if it ever existed, which it does not. Shame though. Our job would be a lot easier if such a fantasy were legal reality.

Thanks,

Ed

________________________________
From: "Phil Corwin" <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>>
Sent: Sunday, June 19, 2016 4:50 PM
To: "parminder" <parminder at itforchange.net<mailto:parminder at itforchange.net>>, "Seun Ojedeji" <seun.ojedeji at gmail.com<mailto:seun.ojedeji at gmail.com>>
Cc: "accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>" <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa

Paraminder:

You keep advocating for ICANN to be transferred to "international jurisdiction", but can you go beyond that slogan and articulate exactly what organizational form and subject to what enforcement authority you refer?

I presume that you are not advocating that ICANN relocate its legal jurisdiction to that of another nation, as that would simply raise the same concerns that you have expressed in regard to the U.S. legal system (not U.S. Government control, as you incorrectly infer)  within the context of a different nation-state.

If you are advocating that ICANN become a UN-type IGO then such a result is directly contradictory to the conditions set by the NTIA for the transition - and if there is widespread support for such a bait-and-switch result we should all know it now before the transition occurs.

Making ICANN subject to international jurisdiction also raises the question of what adjudication forum would address relevant legal disputes, which in ICANN's case are primarily of contract interpretation and enforcement. The International Criminal Court would not be relevant; and the International Court of Justice only permits nation-states to be parties before it.

There is also the issue of recognition of ICANN's proposed "international jurisdiction" status. Generally, in the instance of organizations created by multilateral treaty, each nation has the option of recognizing and participating in the arrangement - or not.

My own views on this subject are quite clear - see http://www.circleid.com/posts/20160523_the_irritating_irresolution_of_icann_jurisdiction/ :
For the sake of legal clarity and organizational stability, it is incumbent upon WS2 participants to resolve this matter as soon as feasible - and to come down decisively in favor of a permanent link between ICANN and U.S. jurisdiction. If this were a matter of first impression then impartial consideration of an alternative national jurisdiction might be in order. But it is a not a matter of first impression, and multiple factors weigh in favor of enshrining ICANN's permanent status as a California non-profit corporation in a Fundamental Bylaw:

  *   ICANN has embodied California non-profit status since its founding in 1998
  *   With the EC and PTI required to be California non-profits by revised Fundamental Bylaws, an inconsistent status for ICANN itself could raise confounding legal and policy issues for both accountability and control
  *   The accountability plan has been designed to be maximally effective in the context of California law
  *   The U.S. legal system is well regarded for its dedication to objective determinations under the rule of law
  *   Perhaps most importantly, the First Amendment of the U.S. Constitution guarantees that the U.S. government cannot take actions that would coerce ICANN into using its root zone control to abridge free speech.

If you are going to advocate for ignoring all the points cited above and ICANN's transfer to "international jurisdiction" then I would respectfully ask that you go beyond that phrase and enlighten us all as to exactly what form this would take, how it would be achieved, how it would ensure that ICANN would not become subject to governmental control, and in which venue contract and other legal disputes pertaining to ICANN would be resolved? You state, "There are hundreds of international organizations functioning under international law, and so can ICANN", but can you go beyond that and provide examples of relevant examples for ICANN that are not UN agencies and thereby subject to multilateral political influence?

Until you provide us with the "simple logic" of such further details I must regard your advocacy as merely rhetorical with no well-considered substance behind it, and thereby incapable of amassing consensus support within an ICANN community that has just labored two-plus years to create transition and accountability proposals that are firmly rooted in U.S. jurisdiction.

Sincerely,
Philip

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

From: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of parminder
Sent: Sunday, June 19, 2016 3:12 AM
To: Seun Ojedeji
Cc: accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa

On Sunday 19 June 2016 12:11 PM, Seun Ojedeji wrote:

Hello Parminder,

As an African, I would tend to agree with your point and wish that your conclusion point was the case (as a reactive measure). However as you know, we have discussed this extensively in the past (on different fora) and we found that the means to the end of such is so complicated and the end itself would ultimately create a govt lead ICANN which i certainly don't want.

If ICANN functioning under California non profit law - made by government - and subject to US jurisdiction - also made of and by governments (and governments alone)  - can continue to be seem and treated as a multistakeholder organisation, to your and others' satisfaction, there is simply no reason why ICANN cannot be and function similarly under international jurisdiction, created by international law.

Your preferring US law/ jurisdiction over international law/ jurisdiction is, simply and nothing more than, a statement of your preferring the US jurisdiction over international jurisdiction ( which, while you have a right to your choices, I consider democratically unfortunate). None is less complex that the other. There are hundreds of international organisations functioning under international law, and so can ICANN. And if ICANN has some special contexts and needs, that would be met by relevant innovations in international law, but not by a democratic regression to subjecting the world to the US law. Democracy is precious, and people have done much to achieve it. Please dont treat it lightly, citing technicalities against it. That is extremely unfortunate. Sorry for the analogy but it directly applies; every tyrant/ dictator is prone to argue that democracy is messy, and difficult and, as you say, complicated. But such an argument does not carry, does it.

To call an ICANN which is constituted under US law, and fully answerable to US jurisdiction (meaning US government, its all branches), as fully multistakeholder;

and, at the same time, an ICANN functioning exactly in the same manner, but now under international law and jurisdiction, as (to quote you) becoming a government let ICANN

is simply to make a misleading statement.

Although, the fallacy contained in it is as clear as daylight, among status quoists circles this statement or argument continues to be made and re-made. But, for other than the fully converted and therefore impervious to simple logic, and demands of that high value of democracy, it takes away nothing  from the my arguments regarding the unfairness of ICANN being subject to US jurisdiction, and the urgent need to move it to international jurisdiction, which you are right, I have often made on various fora, and will keep making. It is a political act.

regards, parminder

Regards
Sent from my LG G4
Kindly excuse brevity and typos
On 19 Jun 2016 07:28, "parminder" <parminder at itforchange.net<mailto:parminder at itforchange.net>> wrote:

On Sunday 19 June 2016 11:31 AM, Jordan Carter wrote:
I may have missed something, Parminder, but isn't it a plus rather than a negative for ICANN accountability that process errors can be appealed and the company held to account for them?

Jordan
In may make ICANN accountable, but to a system that is unaccountable to the global public, and is only accountable to the US public (there could even be cases where these two could be in partial conflict) - that in sum is the jurisdiction issue. ICANN accountability issue is different, though linked, bec it has to be accountable, but to the right system, which itself is accountable to the global public. Different 'layers' of accountability are implicated here, as people in IG space will like to say!

Here the issue is, a US court has no right to (exclusively) adjudicate the rights of the African people, bec African people had no part in making or legitimising the system that the US court is a part of. Dont you see what problem we will be facing if the US court says that fairness of process or whatever demands that .africa goes to DCA. If you were an African, what would you feel?

An ICANN under international law will be subject to only an international judicial process, which Africa is equally a part of, and gives legitimacy to.

parminder

Jordan

On 19 June 2016 at 07:26, parminder <parminder at itforchange.net<mailto:parminder at itforchange.net>> wrote:

On Sunday 19 June 2016 04:13 AM, Paul Rosenzweig wrote:

The Economist | A virtual turf war: The scramble for .africa http://www.economist.com/news/middle-east-and-africa/21700661-lawyers-california-are-denying-africans-their-own-domain-scramble?frsc=dg%7Cd

Not that this fact is being discovered now, but it still is the simplest and clearest proof that US jurisdiction over ICANN's policy processes and decisions is absolutely untenable. Either the US makes a special legal provision unilaterally foregoing judicial, legislative and executive jurisdiction over ICANN policy functions, or the normal route of ICANN's incorporation under international law is taken, making ICANN an international organisation under international law, and protected from US jurisdiction under a host country agreement.

parminder

Paul Rosenzweig

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