[CCWG-ACCT] premature jurisdiction debates

[parminder]

On Thursday 23 June 2016 12:44 AM, Mueller, Milton L wrote:
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> 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.
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> 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.
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One proposal that I made recently to the ISOC and Just Net Coalition
lists was precisely to have a clear statement of and criteria for 'undue
interference' from US gov/ state in ICANN's policy making remit defined
and inserted in ICANN bylaws. The moment the conditions of these
criteria are met, first a process of change of physical location and
therefore jurisdiction of the authoritative root file sets in. For this
a backup physical as well legal (PTI) system would already be ready in
another country (in my argument, I used the possibility of Singapore,
since it has an existing ICANN office) and when the criteria are deemed
to have been met, a switch over to the backup system gets made right
away... There of course would be significant technical and legal issues
to be taken care of for keeping the backup ready to be switched on with
minimum disruption, but that is what is required to be done. This system
should technically and legally be already in place, and fully tested for
a switch over.

The biggest advantage of such a backup is that, like any good check and
balance system, it is extremely (repeat, extremly) unlikely to ever need
to get kicked in. It simply acts as a deterrent. For instance, any court
(or other US state agency) taking cognizance of an issue whose judicial
resolution implicates ICANN global policy remit would be made aware of
the fact of this 'backup' system and ICANN's obligation to take resort
to it, the moment any decision of the US state causes incursion on ICANN
global policy authority. The chances are, the relevant court, or any
other US state agency, will take the hint.

Yes, the US state can force the ICANN board to not take the backup route
but that problem, it faced, too can be solved by an automatic shift to a
back ICANN already registered, say in Singapore, which automatically
takes up the ICANN policy authority (and thus becomes the real ICANN)
the moment the said criteria are met. The same ICANN board now meets in
Singapore as and under the Singapore registered ICANN legal entity, and
things take on from there... (And with the shift, say to Singapore,
another backup in another country gets made ready.......)

The proposal was extensively presented to the ISOC list last month.
There may be more elements that I missed stating above, leaving some
gaps. Rushing out for a meeting... Will add later on..... parminder




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> Dr. Milton L. Mueller
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> Professor, School of Public Policy
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> Georgia Institute of Technology
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