[CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa
Phil Corwin
psc at vlaw-dc.com
Tue Jun 21 19:42:00 UTC 2016
See comments below
Philip S. Corwin, Founding Principal
Virtualaw LLC
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"Luck is the residue of design" -- Branch Rickey
From: parminder [mailto:parminder at itforchange.net]
Sent: Tuesday, June 21, 2016 10:47 AM
To: Phil Corwin; Guru Acharya; Roelof Meijer; milton at gatech.edu
Cc: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa
On Tuesday 21 June 2016 02:02 AM, Phil Corwin wrote:
I appreciate the input.
However, my reflexive reaction to what you have proposed is that it is an enormous amount of time, effort, and legal costs to prepare for a "blacl swan" event that may never occur.
The term 'black swan' is inappropriate here, we are talking about logically imminent incursions of the US state - most like a judicial one first - on ICANN's (global) policy authority. (In my last email I cite the case of a new privately owned gTLD falling foul of US authorities, used to seizing domains by ordering the registries, whereby now they can only send the seizure order to the party in control of the root zone. They have a legal obligation to do it, and not feel shy bec it is ICANN.)
Guru posited the term "the black swan scenario" and I was reacting to that. Beyond that, I reject the notion that a U.S. court ruling impacting an ICANN policy (e.g., in regard to an alleged violation of antitrust law) is an "incursion of the U.S. state", as I equate the term U.S. state as equivalent to the U.S. government
But I'm sure we can and will discuss this at length in WS2.
Is this not the WS2 ? Why when you said that jurisdiction issue should be settled asap, and I agree, defer the discussion now?
My understanding is that the WS2 process kicks off officially on Sunday, June 26th in Helsinki. That's all I meant.
parminder
Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
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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 Guru Acharya
Sent: Monday, June 20, 2016 1:41 PM
To: Roelof Meijer; milton at gatech.edu<mailto:milton at gatech.edu>
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
Hi Phil,
Your five points arguing that the California jurisdiction is the best are profound but they unfortunately reduce the debate to a simple question of "which jurisdiction is best". There are many other ways of looking at the debate and I hope you would appreciate the concerns of emerging countries and seek to find a middle ground while framing the debate.
I first explain your lens of looking at the issue and then propose Teubner's Reflexive Law approach as the way forward.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896509
Your lens is what Teubner calls "Formal Law" and thus the simple question you ask is "which jurisdiction is the best?" And thus your simple conclusion is that US (California) is the best jurisdiction for the five points listed by you. All five points unarguably correct.
The first alternative lens is "Substantive Law" and the question you would ask is purposive substantively - "what are the characteristics of the ideal jurisdiction and can we get the US/alternate/international jurisdiction to embrace those ideal characteristics?" This is what Parminder appears to be arguing for. Unfortunately this too is shallow and would fall victim to the black swan scenario since most of our arguments are based on inductive reasoning arising from historical observations.
https://en.wikipedia.org/wiki/Black_swan_theory
The second alternative lens is "Reflexive Law" and that is the approach I suggest as the way forward.
In the reflexive approach, you would ask "what are the institutional mechanisms or procedures to ensure that jurisdiction issue can be addressed in an adverse situation where the US jurisdiction is longer tenable, however rare it may it?" In the absolute rarest of rare cases that the US legislature or judiciary try to interfere with community decisions (the black swan scenario), how would ICANN ensure that this interference is contained/minimised? What are the institutional mechanisms or procedures for addressing the situation where the US (or any other) jurisdiction is no longer hospitable/ideal for the ICANN policymaking or IANA functions? These are the questions that we should be asking in the WS2 on jurisdiction.
Thus the focus needs to be on building a procedure/institutional mechanism for addressing adverse situations that can continuously self-correct the community to the right path rather than presuming that there is one perfect/ideal/best jurisdiction or scenario where no black swans exist.
There are numerous Reflexive Law strategies.
1) The first simple strategy is an information strategy wherein ICANN must publicly disclose any correspondence between US entities (executive, judicial or legislative) and ICANN.
2) The second strategy could be procedural. An objective index could be created that publicly marks the level of interference by US entities (executive, judicial or legislative). Once the threshold is crossed on that index, a process to change jurisdiction (perhaps the separation process) is initiated.
3) The third strategy could be to build redundancy. In this, there exists a duplicate PTI in an alternate jurisdiction that performs all IANA functions redundantly in parallel and is made authoritative in the rare scenario that the US jurisdiction can not be trusted.
While the list is illustrative, I hope it helps frame the debate better than the simple question of "which jurisdiction is best".
On Mon, Jun 20, 2016 at 7:29 PM, Roelof Meijer <Roelof.Meijer at sidn.nl<mailto:Roelof.Meijer at sidn.nl>> wrote:
Well, yes. But. We wanted (legal) enforceability, and got it.
And the .africa outcome illustrates (apart from the neo-colonalization
perspective) that <rule of law> and <justice> do not guarantee the <right>
outcome of such a process
Roelof
On 19-06-16 12:54, "accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> on
behalf of Nigel Roberts" <accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>
on behalf of nigel at channelisles.net<mailto:nigel at channelisles.net>> wrote:
>Welcome to the world of competing interests, advanced to the maxiumn by
>all lawful means.
>
>This is why we need strong accountability, and respect for human rights,
>embedded in ICANN's culture, rather than imposed from the outside by a
>review tribunal.
>
>On 19/06/16 10:55, Tijani BEN JEMAA wrote:
>> Jordan and all,
>>
>> You are right that the ICANN accountability is an essential thing, and
>> that all concerned parties should have the opportunity to challenge
>> ICANN for any violation of its bylaws and articles.
>>
>> But in this case of dot africa, the issue is too obvious that
>> dotconnectafrica can¹t get the support of the African community
>> including Governments. they have at the contrary strong opposition of
>> some of them. And the applicant guide book is too clear on this point:
>> any Geographic application should gain, inter alias, the explicit
>> support of the government(s).
>>
>> All the steps for a positive end of the application of ZACR (officially
>> tasked by the African Union to apply for dot africa on their behalf)
>> were accomplished and the decision of the ICANN was justified.
>>
>> dotconnectafrica argued through the IRP that ICANN wasn¹t fair in its
>> decision. The IRP process took too longtime because one of the panel
>> members passed away. There wasn¹t a maximum time for the IRP
>> consideration, and that is one of the issues we must tackle in the IRP
>> sub-group about IRP. After the late replacement of the dead member of
>> the panel, everything was to be restarted. this longtime gives rooms for
>> every possible gaming. dont forget that dotconnectafrica has paid a huge
>> amont of money in advertising, communication and sponsoring prior to
>> the opening of the new gTLD round. the result of the IRP for them is
>>vital.
>>
>> ICANN applied the decision of the IRP and dotconnectafrica lost the
>> geographic panel evaluation. Now, they went to the court to delay more
>> and more the delegation of dot africa.
>>
>> In the mean time, the Africans are prevented from having their
>> continental TLD because this game is continuing even if the case is too
>> clear. Where is the public interest here? where is the interest of
>> Africa? As African, I¹m too disappointed because we are the hostage of a
>> system that privilege the private interest over the African community
>>one.
>>
>>
>>-------------------------------------------------------------------------
>>----
>> *Tijani BEN JEMAA*
>> Executive Director
>> Mediterranean Federation of Internet Associations (*FMAI*)
>> Phone: +216 98 330 114
>> +216 52 385 114
>>
>>-------------------------------------------------------------------------
>>----
>>
>>
>>> Le 19 juin 2016 à 08:11, parminder <parminder at itforchange.net<mailto:parminder at itforchange.net>
>>> <mailto:parminder at itforchange.net<mailto:parminder at itforchange.net>>> a écrit :
>>>
>>>
>>>
>>> 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"
>>>> <<mailto:parminder at itforchange.net<mailto:parminder at itforchange.net>>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
>>>>> <<mailto:parminder at itforchange.net<mailto:parminder at itforchange.net>>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-lawyer
>>>>>>s-california-are-denying-africans-their-own-domain-scramble?frsc=dg%7
>>>>>>Cd>http://www.economist.com/news/middle-east-and-africa/21700661-lawy
>>>>>>ers-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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>>>>>>
>>>>>>https://mm.icann.org/mailman/listinfo/accountability-cross-community
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>>>>>
>>>>>https://mm.icann.org/mailman/listinfo/accountability-cross-community
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>>>>>
>>>>>
>>>>>
>>>>> --
>>>>> Jordan Carter
>>>>> Wellington, New Zealand
>>>>>
>>>>> +64 21 442 649 <tel:%2B64%2021%20442%20649>
>>>>> jordan at jordancarter.org.nz<mailto:jordan at jordancarter.org.nz> <mailto:jordan at jordancarter.org.nz<mailto:jordan at jordancarter.org.nz>>
>>>>>
>>>>
>>>>
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