[CCWG-ACCT] 2nd reading of jurisdiction sub group report
parminder
parminder at itforchange.net
Tue Oct 31 05:31:37 UTC 2017
On Saturday 28 October 2017 02:34 AM, John Laprise wrote:
>
> Speaking as a member, I listened but my disagreement was not motivated
> by prejudice. I simply found your positions lacked sufficient merit.
>
John, you have a right to hold that opinion, and, who knows, you may
even be right.
But perhaps you'd note that my below note does not argue the merit of my
position but the demerits of the sub-group chair having blatantly
ignored the calls from a big number of sub group participants to
formally consider the option of customised immunity for ICANN under an
existing US law. After having not allowed a proper consideration of this
option - which was the chief demand of its proponents -- the sub-chair
gave different excuses -- the sub group report says, we could not
consider it because we ran out of time, in the f2f ICANN meeting it was
claimed that this option was not considered bec it was not connected to
any particular issues or problems that it was meant to address....
Earlier -- just before J'berg ICANN meeting -- it had been claimed that
this option was being taken off the table because it was unlikely to
find traction (somehow the sub group and ccwg chair seemed to have found
this out even without formal consideration of this option -- which is
called prejudice). Later when many protested about this decision, it was
clarified that only moving ICANN's place of incorporation was off table
-- which was fine with us -- and not customised immunity. This wash an
implied promise that it will be taken up for discussion, but it never was...
My purpose in these interventions is to show how inappropriately the
process was conducted, and thus question its illegitimacy, by ICANN's
own professed standards of open participation, adequate consideration of
all views, and so on..... It was clear that some people were afraid that
the very justifiable option of customised immunity under an existing US
Act -- under which some US non profits already function, without any
apparent problem -- will be difficult to argue against rationally, which
is why round-about means were employed to push it away, instead of open
discussions which too could very well have resulted in rejection of this
option by the group.
Many people seem to be against the immunity under IOI (International
Organisations Immunities) Act proposal because they thought that this
will make it impossible for ICANN to continue to use California law for
incorporation and for its internal governance processes, including the
new community accountability mechanism. This is simply not true, because
as said there are other NGOs in the US availing of immunity under US's
IOI Act, but still incorporated under non profit law of a US state, and
using it for internal gov processes. In any case, we repeatedly asked
for legal opinion to be taken, an/*d were ready not to pursue the
immunity under IOI Act route*//*if it meant ICANN cannot use California
non profit law for its internal gov processes*/. Our repeated requests
to get legal opinion were not even acknowledged by the sub-group chair.
Is this fair?
Other people seem against customised immunity because they say they
indeed want continued US's parental guidance for ICANN -- it was said
that ICANN could go rogue in absence of such jurisdictional oversight of
US.... We said that a carve out for more important needed US laws could
be made in the "customised immunity" option, but they seem wanted
blanket application of all US laws over ICANN -- that obviously makes a
mockery of the aspiration of ICANN to be a truly global organisation, as
stated in the Net Mundial statement, undertaking a key global governance
function.
Now, first of all, this means that we all admit that ICANN remains under
jurisdictional oversight of the US state, and thus the unilateral
oversight question has only been partly addressed with NTIA's withdrawal
for its direct oversight role. We still need to address US's
jurisdictional oversight over the purportedly global governance
institution of ICANN.
Second, this is strange argument from those who are otherwise the most
vocal proponents of the ICANN's so-called bottom up model, where policy
and rules are made in a bottom-up manner... It is almost exactly like
the fiasco in the workstream 1 when CCWG decided that ICANN should
become a members-based body, with members drawn from chartering
organisations, but ICANN said sorry, this wont work, because the
chartering organisations are simply not representative enough of the
community (that mythical, utterly elastic thing!)!!! No one really
understood this -- wasnt ICANN's whole legitimacy based on community
based processes of these chartering organisations?!
But then it seems that the powers-that-be in the ICANN can use different
arguments of bottom-up, need for jurisdictional oversight, and so on, as
they wish, even when it is often done in contradictory manners. This is
utterly irrational, but such things seem to pass the muster of the
"ICANN community" without any murmurs, and everyone in the end simply
proclaims how great ICANN and its community participation processes
are..... No they are evidently not, and that is the point.
Every single multistakeholder meeting that have taken place in India
during the transition period concluded that US's exclusive jurisdiction
over ICANN to be the top issue that needs to be addressed, and everyone
I have talked to finds the customised immunity under IOI Act as a
perfectly rational solution.... But in ICANN's so called highly
participative processes, that option cannot even get a formal sopce for
full consideration... That is the participative nature of ICANN, so,
guys, let us not fool ourselves.
If this proposal was formally discussed in the jurisdiction sub-group
and CCWG ( no, not as a 2 hour session of presenting dissenting opinions
after the act), and people had space and time to exchange views in a
structured manner on why proponents find it a good option, and what were
the misgivings of others, and whether they could be addressed, and so
on, we would have had a really open and fair consideration of the
proposal. Whether it could find consensus in the end or not, we would
have built a useful record of the views around the proposal for future
work on it. But that was not to be. Simply because those who were
supposed to neutrally guide the process were full prejudiced against it,
and considered it some kind of a demon that needed to kept away from the
door as diligently as possible.
In the process they simply ended up casting long shadows on the very
meaningfulness of ICANN's so called bottom-up processes - -they work,
yes, but within a (fairly low) glass ceiling. And when you touch that
ceiling, everyone knows it quickly that it has been reached.
parminder
> On Fri, Oct 27, 2017, 4:24 PM parminder <parminder at itforchange.net
> <mailto:parminder at itforchange.net>> wrote:
>
> Greg
>
> It is unfortunate that among the few and very weak arguments that
> you put forward today in the f3f meeting about why customised
> immunity was never officially discussed in the sub-group you said
> that this was because it was offered as remedy without showing the
> issues that it addressed.... This, as I said during the meeting,
> is a shockingly false statement, and I said that I would provide
> evidence for it. You came back and stood by your statement. And
> so, the evidence as I promised is below.
>
> You set up a google doc on influence of existing jurisdiction on
> ICANN (link to it follows) to collect the issues that needed to be
> addressed, right.... One of the first entries made on it was mine,
> and it was extensively commented upon (most extensively by
> yourself).... This was close to the start of the process, near the
> middle of 2016. The entry on various issues I made was as follows.
>
> (cut paste form the doc begins)
>
> 1.
>
> A US court may find ICANN's actions, involving actual
> operation if its policies –like delegation of a gTLD, and/
> or acceptance of certain terms of registry operation, to
> be in derogation of US law and instruct it to change its
> actions.
>
> 2.
>
> Emergency, including war related, powers of the US state –
> existing, or that may be legislated in the future, like
> for instance that involves country's critical
> infrastructure – may get invoked with respect to ICANN's
> policies and functions in a manner that are detrimental to
> some other country (or countries).
>
> 3.
>
> An US executive agency like OFAC may prohibit or limit
> engagement of ICANN with entities in specific countries.
>
> 4.
>
> FCC which has regulatory jurisdiction over US's
> communication infrastructure may in future find some ICANN
> functions and/ or policies to be such that it would like
> to apply its regulatory powers over them in what it thinks
> is the interest of the US public.
>
> 5.
>
> US customs, or such other enforcement agency may want to
> force ICANN to seize a private gTLD of a business that is
> located outside US which these agencies find as
> contravening US law, like its intellectual property laws.
>
> 6.
>
> A sector regulator in the US, say in the area of health/
> pharma, transportation, hotels, etc, may find issues with
> the registry agreement that ICANN allows to a registry
> that takes up key gTLD denoting these sectors, like
> .pharma, .car, .hotel and lays exclusion-inclusion and
> other principles for the gTLD, and it may force ICANN to
> either rescind or change the agreement, and conditions
> under it.
>
> (ENDS)
>
> This entry with many comments is still visible in this doc that
> you developed,
> https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICPzbk/edit
>
>
> All these are directly issues that point towards customised
> immunity as the remedy -- and lest there be any doubt the
> connection was explicitly made in group's email discussions. Many
> of these issues were again underlined by a statement made, in Nov
> 2016 at Hyderabad ICANN, by nearly all Indian NGOs active in IG
> area and supported by two largest global coalitions in this area.
> Pl see
> http://itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf
> . The statement connects these issues to customised immunity as a
> possible remedy, providing full details. This statement was posted
> on sub -group's list and discussed. Then during the public comment
> period (response to the questionnaire, pl see the corresponding
> ICANN page) many inputs once again raised important issues and
> linked them to customized immunity as a possible solution....
>
> It is most shocking now at the end of the process to hear from the
> sub group's chair that customised immunity was always being
> proposed without showing the issues that it could remedy -- AND
> THAT WAS THE REASON IT NEVER GOT AN OFFICIAL SLOT FOR DISCUSSION.
>
> Greg, you must either disprove what I am saying here, and saying
> it with documented evidence, or withdraw your statement that
> undermines the large amount of work that so many of us did, and
> indeed the whole sub group's working..... We cannot let such false
> statements to be recorded as the historical records of this
> group's work, and the transcript of today's f2f meeting is
> supposed to go as a record annexed to the final report..
>
> Our problem is; there was just too much prejudice, and people,
> including prominently the process heads/ chairs, were simply not
> listening to many us, they were tuned out even before the
> deliberative process begun!! This is not a consultative and
> participative process, this is something made to look like one....
>
> Look forward to your response
>
> parminder
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