[CCWG-ACCT] premature jurisdiction debates
parminder
parminder at itforchange.net
Mon Jun 27 11:22:09 UTC 2016
On Monday 27 June 2016 02:58 PM, Jordan Carter wrote:
> snip
>
> Sorry, forgot to re state the questions. This also goes with the
> approach proposed by Pedro that we look first at scenarios and
> their implications on ICANN substantive policy remits.
>
> (1) What is ICANN's plan to do if it gets adverse US court
> judgements in .xxx and .africa cases (even .ir is still in the
> courts)?
>
>
> What do you mean by adverse? The courts I assume would rule against
> Icann if it failed to follow its own process effectively but would not
> seek to impose their judgement on substantive questions.
That exactly is the misunderstanding that I see in most positions put
forward here. The assumption that a US court will only judge ICANN's
acts as per ICANN's own processes/ bylaws, but not apply, and enforce,
the myriad public laws of the US on ICANN. This is simply not true. For
instance, the .xxx gTLD is under dispute in a US court not for any
procedural problems in its delegation but for allegedly being in
violation of US anti-trust laws, which is a public law, with no choice
for any US organisation to not be subject to it. Similarly, .ir is being
contested under another set of public laws . All these public laws
necessarily apply to everything ICANN does. With 100s if not thousands
of new gTLDs, being taken by companies active in practically every
possible social/ economic sector, such DNS related cases invoking US
public laws of various kinds can only increase exponentially. How can we
not be prepared for them?
It of course is possible for US through a domestic legislation give
ICANN immunity from applications of these laws, and that may be one
option. However, it is too significant a issue, and imminent problem, to
be ignored.
> But, see above about not being a lawyer.
I myself am stumbling to find my way through all this :) . Others who
are lawyers can respond if what I say is not correct, and also to the
two questions to which you have responded (thank you for that). In fact,
we should ask for legal advice, which had generously been made available
to this group, with the regard to the 2-3 scenarios that I have
presented. Although these may be the same lawyers who had earlier
advised that ICANN should stay in the US jurisdiction, it will still be
very useful to hear what they have to specifically say on the matter of
application of US public laws to ICANN's DNS policy making, and of
powers of its executive agencies, about which I have presented
scenarios. I mean specifically respond to the presented scenarios. This
discussion will be much more informed after we have heard authoritative
legal opinion.
> snip
> This isn't a question per se. But whatever the jurisdiction, the only
> party responsible for making sure Icann policy frameworks are well
> written and legally robust, and that Icann follows them, is Icann. To
> the extent it fails in those things it invites courts of any sort to
> be involved.
As discussed above, that is not the only reason courts may get involved,
as the .xxx and .ir cases show. However well ICANN writes its policy
framework (unless it already anticipates and works in the US legal
requirement into it, in which case we have the same problem, through a
different route, of one country's law determining global DNS policy) it
does not save it from US courts hauling it up wrt judging them for
compliance to numerous US public laws.
>
> snio
>
>
> Also, please see the hypothetical case in my last email, if
> rojadirecta takes .rojadirecta as a closed gTLD, and after some
> time, as they did once earlier through its US based registry, US
> authorities want to seize the .rojadirecta, which can now only be
> done at the root file level, and for that sends a order to ICANN,
> what would ICANN do? Again, necessary to know while we are in
> middle of jurisdiction decision
>
>
> I don't know. I'm not a gtld person per se. Has the US ever
> successfully 'siezed' a TLD? Wouldn't the relevant registry keep
> operating anyway and the technical community simply 'route around the
> damage' if Icann or the root zone operator complied with US attempts?
No, they have not seized a tld. US's major seizure operations have been
intellectual property law violation motivated and have been aimed at
commercial companies which hitherto only had second level domain names.
These have often been seized by US gov through orders to US based
registries, who have immediately complied (they have no option). Like
rojadirecta.com was seized through a notice to .com registry. My
question is, if rojadirecta were to now take .rojadirecta gTLD and
operate its business through it, and US gov wants to stop it as it
wanted to earlier, there is little doubt that they will now send an
enforcement notice to ICANN to remove the gTLD from the root, the only
way it can be stopped, and ICANN has to comply. Again, happy to hear the
legal view on this.
parminder
>
> Jordan
>
>
>
>
> Responses to these scenarios and their stated implications will be
> appreciated.. parminder
>>
>> best, parminder
>>
>> On Sunday 26 June 2016 04:31 PM, Jordan Carter wrote:
>>> Par minder,
>>>
>>> I see a distinction which you may not, but it might help clarify
>>> the points at debate.
>>>
>>> I see two layers here, for want of a better term. One is the
>>> actual work of ICANN's policy making, contract development and
>>> so on. That's being done in a fashion supported by a
>>> corporation (ICANN the legal entity).
>>>
>>> The legal environment in which ICANN the corporation exists is
>>> California, USA.
>>>
>>> The first, the set of activities that ICANN actually does, are
>>> location agnostic. They could happen anywhere, in any
>>> jurisdiction. As long as that jurisdiction allowed the legal
>>> entity to organise itself as it saw fit, more or less, it'd be fine.
>>>
>>> The second, the legal environment, has to be somewhere. I take
>>> it from Wolfgang's comments and my own understanding, and
>>> actually from this email from you, that there's no
>>> "International Law" environment that could take the place of a
>>> national jurisdiction in which ICANN could base itself, unless
>>> such an international legal basis was created.
>>>
>>> For me, personally, the important point is that ICANN related
>>> decisions are made within the ICANN system. I am not fussed
>>> about the jurisdiction in which the corporation exists as a
>>> practical matter so long as that overall point is maintained.
>>>
>>> Since it would take years or decades to establish an
>>> international law basis under which ICANN could operate, even if
>>> it was at all possible, there needs to be *some* jurisdiction used.
>>>
>>> California seems fit for purpose in the sense that it has been
>>> able to accommodate the WS1 and Stewardship Transition
>>> frameworks agreed by the community. The costs of doing all that
>>> again to move jurisdiction should, I think, only be entertained
>>> if there other currently undisclosed problems with CA, and
>>> benefits in another jurisdiction, that outweigh the costs of change.
>>>
>>> It's not clear to me that there are such advantages available
>>> anywhere given the flexibility of the CA framework. Doesn't mean
>>> they don't exist tho, just that I don't see them :-)
>>>
>>> If this is a matter of politics per se, then I guess I just
>>> don't identify with that as significant. ICANN could be
>>> incorporated as a non profit in New Zealand, or India, or the
>>> United States -- I really don't mind. As long as the rule of
>>> law was clear, the courts were available and competent, and the
>>> rules allowed the organisation to be what it needs to be -- why
>>> does the particular nationality of the entity in its legal
>>> reality matter?
>>>
>>> best
>>> Jordan
>>>
>>> I think the following points are uncontroversial
>>>
>>> On 26 June 2016 at 12:16, parminder <parminder at itforchange.net
>>> <javascript:_e(%7B%7D,'cvml','parminder at itforchange.net');>>wrote:
>>>
>>>
>>>
>>> On Sunday 26 June 2016 03:27 PM, Phil Corwin wrote:
>>>> There is no international corporate law. Therefore there is
>>>> no means by which ICANN can be organized as a non-profit
>>>> entity under international law but for a treaty arrangement
>>>> such as that for the Red Cross.
>>>
>>> Yes, it will be incorporated under special international law
>>> created for that purpose.
>>>
>>>> How long would that take,
>>>
>>> First we have to just decide to do it (that is all to be
>>> done at this stage - which can be done within weeks or a few
>>> months of discussion), then let it take the needed time as
>>> long as everyone is working in good faith... It can even be
>>> done in 6-12 months, a simple basic text that incorporates
>>> existing ICANN functions and processes. There is a clear
>>> incentive for those who wants things changed vis a vis US
>>> jurisdiction to go through the process fast, and for those
>>> preferring the status quo to keep the text short and as far
>>> as possible making an exact replica of present ICANN at the
>>> international level. Once we agree on these principles,
>>> things can move really fast. In the interim, of course the
>>> status quo of US jurisdiction remains, and so there is no loss.
>>>
>>>> what would that cost,
>>>
>>> what kind of costs?
>>>
>>>> and what is the justification?
>>>
>>> This brings us to the square one of this discussion, while I
>>> thought you/ we were moving forward. The simplest statement
>>> of the justification is: a global Internet cannot be run by
>>> US law [no legislation (or adjudication) without
>>> representation]. For implications of this justification, you
>>> may try to answer the questions that I just asked Nigel (and
>>> had earlier also asked you).
>>>
>>> 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
>>>> 202-255-6172/Cell
>>>>
>>>> Twitter: @VlawDC
>>>>
>>>> "Luck is the residue of design." -- Branch Rickey
>>>> *From:*wolfgang.kleinwaechter at medienkomm.uni-halle.de
>>>> <javascript:_e(%7B%7D,'cvml','wolfgang.kleinwaechter at medienkomm.uni-halle.de');>
>>>> *Sent:*June 26, 2016 12:27 PM
>>>> *To:*parminder at itforchange.net
>>>> <javascript:_e(%7B%7D,'cvml','parminder at itforchange.net');>; asoto at ibero-americano.org
>>>> <javascript:_e(%7B%7D,'cvml','asoto at ibero-americano.org');>; paul.rosenzweig at redbranchconsulting.com
>>>> <javascript:_e(%7B%7D,'cvml','paul.rosenzweig at redbranchconsulting.com');>;
>>>> accountability-cross-community at icann.org
>>>> <javascript:_e(%7B%7D,'cvml','accountability-cross-community at icann.org');>
>>>> *Subject:*Re: [CCWG-ACCT] premature jurisdiction debates
>>>>
>>>>
>>>> P:
>>>> There is something called international law..... Like we
>>>> are an international community working on an international
>>>> issue, there is also international law.
>>>>
>>>> W:
>>>> I am always perplexed that we have the same discussion
>>>> again and again. The subject of international law is the
>>>> state, represented by its government. Governments negotiate
>>>> treaties. The primary source of international law is the
>>>> Charter of the United Nations. The seven principles there -
>>>> including sovereign equality of states - are seen as jus
>>>> cogens. The rules for treaties are laid down in the the
>>>> Vienna Convention on the Law of Treaties. Governments can
>>>> delegate some rights - via an international treaty - to an
>>>> intergovernmental organisation, as UNESCO, ITU and
>>>> others.Such organizations become a subject sui generis
>>>> under international law and can negotiate treaties with
>>>> their host countries. Governments can also create
>>>> international courts - as the International court of
>>>> justice in The Hague or the Rome Statute. But in case of a
>>>> conflict, the conflicting parties are governments, not
>>>> private legal or natural persons.
>>>>
>>>> This is rather different from what we have with ICANN.
>>>> ICANN is a non-for profit private corporations which
>>>> operates n the public interest. In its Articles of
>>>> Incorporation ICANN makes clear that in operates within the
>>>> framework of international law. That means ICANN respect
>>>> the national sovereignty of states, does not interfere into
>>>> internal affairs of other countries etc. But ICANN is not a
>>>> subject under international law. Governments participate in
>>>> ICANN in an advisory role. The role is specified in the
>>>> bylaws.
>>>>
>>>> If Parminder proposes an intergovernmental organizations
>>>> for the governance of the Internet (or an intergovernmental
>>>> framework convention for the domain name system) he should
>>>> say so. Theoretically this is an option. Governments are
>>>> free to negotiate anything as long as they find negotiation
>>>> partners. It took 25 years to negotiate the 3rd Law of th
>>>> Sea Convention. It took more than 20 years to negotiate the
>>>> Rome Treaty. An the negotiations for a treaty on climate
>>>> change started in the early 1990s. At this stage I do not
>>>> see any intention of governments to enter into a new
>>>> intergovernmental codification conference to negotiate an
>>>> Internet treaty.
>>>>
>>>> BTW, individuals can start a case against private
>>>> corporations if those corporations violate their rights
>>>> they have in the country where they live. The case Schrems
>>>> vs. Facebook is a good example. Facebook is incorporated in
>>>> the US but does business in Europe. The European Court of
>>>> Justice decided that Facebook has to respect the rights of
>>>> privacy of Mr. Schrems, a citizen of Austria.
>>>>
>>>> Hope this helps to end this useless debate.
>>>>
>>>> Wolfgang
>>>> _______________________________________________
>>>> Accountability-Cross-Community mailing list
>>>> Accountability-Cross-Community at icann.org
>>>> <javascript:_e(%7B%7D,'cvml','Accountability-Cross-Community at icann.org');>
>>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>
>>>
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> <javascript:_e(%7B%7D,'cvml','Accountability-Cross-Community at icann.org');>
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>
>>>
>>>
>>>
>>> --
>>> Jordan Carter
>>> Wellington, New Zealand
>>>
>>> +64 21 442 649
>>> jordan at jordancarter.org.nz
>>> <javascript:_e(%7B%7D,'cvml','jordan at jordancarter.org.nz');>
>>>
>>
>>
>>
>> _______________________________________________
>> Accountability-Cross-Community mailing list
>> Accountability-Cross-Community at icann.org
>> <javascript:_e(%7B%7D,'cvml','Accountability-Cross-Community at icann.org');>
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
>
>
>
>
>
>
>
> --
> Jordan Carter
> Wellington, New Zealand
>
> +64 21 442 649
> jordan at jordancarter.org.nz <mailto:jordan at jordancarter.org.nz>
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20160627/d18fe9e6/attachment-0001.html>
More information about the Accountability-Cross-Community
mailing list