[CCWG-ACCT] premature jurisdiction debates
parminder
parminder at itforchange.net
Fri Jun 24 16:15:26 UTC 2016
On Thursday 23 June 2016 02:50 AM, farzaneh badii wrote:
> There is a difference between the possibility of interference and
> interference.
There is another interesting side to this.... Why transition from US's
oversight over ICANN is considered such a good thing, now being
celebrated so much to make it look as if it was always considered
necessary. I have been into this discussion for long, and whenever some
of us pointed to the role of NTIA, we used to hear the same argument,
show us one instance when NTIA interfered with ICANN's decision. Since
they never interfered, their oversight role is no problem. Nothing had
changed now, there hasnt suddenly been some instance of NTIA
interference, right! It is still only a possibility, but now, since US
is already doing it, we seem to think that this is the best thing to
happen to the ICANN world.
Why when working just on the 'possibility' of NTIA's wrongful
interference, and ensuring against it, we are so celebrating of the IANA
transition, we do not want to pursue the 'possibility' of jurisdictional
incursion of the US state, of which we want a prior proof - as was till
now also asked for with regard to NTIA oversight role.
We make our institutional arrangements not only in response to actually
occurred issues but also taking into account logically strong
possibilities. I have heard no response either to the possibility
(1) of what happens if the US court reverses ICANN decision in .africa
and other gtld related cases, like .xxx (how can one say that this is
simply not possible?)
(2) of US authorities having a intellectual property related issue (as
per US law) with a closed gTLD owning foreign company, why would they
not direct their domain removal order now to ICANN - the same order, of
which multiple known cases exist, which used to go to US based
registries earlier (rojadirecta is a famous case, what if rojadirecta
was to take a gTLD and still be doing sports event steaming business,
and then a Us agency find the same problem with it that they earlier did?)
parminder
> I agree that up until now there was no interference and that US
> Department of Justice opposing might have helped too and I do agree
> that there are other ways to limit such interferences even by
> referring to the Foreign Sovereign Immunities Act ( which I think
> ICANN did in its argument). But we cannot deny that US jurisdiction
> gives the possibility of interference (might be unsuccessful and might
> not work) especially in the case of Iran.
>
> *"**/If ICANN were located in another jurisdiction, that
> jurisdiction's courts would be hearing these disputes. "/ : *the
> Plaintiff used and is using Terrorism Risk Insurance Act of 2002 in
> its arguments. Are there Acts similar to TRIA in other countries? If
> yes then the statement is correct. If not then we might want to look
> at what can be done to avoid disputes similar to Iran's case.
>
> Just to clarify I am of the opinion that the issue of jurisdiction has
> been championed by states while they are not providing many good
> reasons for it. It might be that there are not many real good reasons
> for it. We just have to solve some complications and we are good to
> go. But we have to address the complications.
>
> On 22 June 2016 at 22:53, Greg Shatan <gregshatanipc at gmail.com
> <mailto:gregshatanipc at gmail.com>> wrote:
>
> In _Weinstein v. Islamic Republic of Iran_, the plaintiffs
> attempted to enforce the judgment by seizing the .ir TLD, claiming
> that it was an asset of Iran. The US Department of Justice filed
> a brief opposing the seizure, stating that a TLD is not property
> or an asset, and that the TLD was beyond the reach of the US law
> governing seizure of certain foreign assets. (ICANN submitted
> similar arguments to the court.) The federal judge hearing the
> case ruled against this attempt, siding with ICANN and DOJ. Is
> this what you are calling U.S. "interference"? Would it have been
> better if DOJ had not filed a brief?
>
> As Phil points out, the case is currently on appeal to the D.C.
> Circuit. It was argued but has not yet been decided.
>
> Greg
>
> On Wed, Jun 22, 2016 at 4:36 PM, farzaneh badii
> <farzaneh.badii at gmail.com <mailto:farzaneh.badii at gmail.com>> wrote:
>
> Hi Rubens
>
> I think the interference in .ir and Syria case is quite
> different from .africa. , .In .ir case the claimant had a
> judgment against iran which it had obtained through the us
> courts relying on US laws and wanted to enforce the judgement
> through attaching .ir to the claimant. I call that
> interference. In .africa two competing organizations have a
> dispute over the delegation of .africa. I am not sure if we
> can compare the two.
>
> On 22 Jun 2016 22:14, "Rubens Kuhl" <rubensk at nic.br
> <mailto:rubensk at nic.br>> wrote:
>
> Dear Phil,
>
> I can´t fully follow your segmentation
>
> 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.
>
>
> Agree
>
>
> 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,
>
>
> why not? Who is going to hear the case set liabilities and
> eventually compensation????
>
> or criminal charges against an ICANN employee for
> embezzlement, etc.
>
>
> Agree
>
>
>
>
> 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>
> [mailto: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
> <mailto: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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> --
> Farzaneh
>
>
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