[CCWG-ACCT] premature jurisdiction debates

[Guru Acharya]

I agree with Phil for the need to distinguish between the kinds of actions
that constitute "interference by the US".

For example, criminal charges against a ICANN employee for embezzlement
heard in a US court would not constitute interference by the US. However,
interference in policy-making functions or compelling changes to the DNS
root zone would indeed constitute interference by the US. There is need to
create a proper definition of "interference by the US" in this regard.

However, I'm glad that Phil finally does agree that interference by the US
is a possibility!

The reactions to such interference could be step wise or escalatory. In my
opinion, changing jurisdictions should indeed be a possible response but
only in the worst case or as the last step of the escalatory ladder in case
preceding steps fail. Such a response must be preceded by other measures
that do not require change in jurisdiction.

However, this escalatory ladder of options must publicly make it explicitly
clear that change in jurisdiction is indeed a valid option in case the US
continues to interfere!

On Thu, Jun 23, 2016 at 1:09 AM, Phil Corwin <psc at vlaw-dc.com> wrote:

> So long as we have a common understanding of what would constitute
> “interference by the U.S. government” (of which there has been little to
> none since ICANN’s inception, with the possible exception of the delay in
> .xxx delegation to the root). I presume you are advocating deciding upon a
> process to address such an occurrence, rather than making a decision now
> about an alternate jurisdiction for a situation that may never arise, or
> occur decades from now.
>
>
>
> I’ll start that discussion by stating that it would likely include
> interference in ICANN’s policymaking process (outside of advocacy within
> the GAC) or trying to block or compel a change in the root zone, through
> methods that are inconsistent with the Bylaws.
>
>
>
> I don’t think it should include private litigation brought against ICANN
> and heard in state or federal court; or law enforcement actions, such as
> bringing an antitrust action if there is an allegation of illicit pricing
> decisions, or criminal charges against an ICANN employee for embezzlement,
> etc.
>
>
>
>
>
>
>
> *Philip S. Corwin, Founding Principal*
>
> *Virtualaw LLC*
>
> *1155 F Street, NW*
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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] *On Behalf Of *Mueller,
> Milton L
> *Sent:* Wednesday, June 22, 2016 3:15 PM
> *To:* Guru Acharya; Roelof Meijer
> *Cc:* accountability-cross-community at icann.org
> *Subject:* [CCWG-ACCT] premature jurisdiction debates
>
>
>
>
>
>
>
> 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.
>
>
>
> MM: I think this is a good point. Even advocates of US jurisdiction or
> those who, like me, think there is just no better alternative and that the
> disruption and risks caused by a change are not worth the uncertain
> improvements, can easily agree that there should be procedures or plans for
> how to respond to interference by the U.S. government.
>
>
>
>
>
> Dr. Milton L. Mueller
>
> Professor, School of Public Policy
>
> Georgia Institute of Technology
>
>
>
>
>
>
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