[CCWG-ACCT] premature jurisdiction debates

[Nigel Roberts]

They don't have contempt of court laws in the US anymore?



On 23/06/16 05:33, parminder wrote:
> On Thursday 23 June 2016 12:44 AM, Mueller, Milton L wrote:
>>
>> 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.THe
>> 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.
>>
>
> 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
>
>
>
>
>> Dr. Milton L. Mueller
>>
>> Professor, School of Public Policy
>>
>> Georgia Institute of Technology
>>
>>
>>
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