[CCWG-ACCT] 2nd reading of jurisdiction sub group report

John Laprise jlaprise at gmail.com
Tue Oct 31 07:02:04 UTC 2017


Comments inline

 

From: parminder [mailto:parminder at itforchange.net] 
Sent: Tuesday, October 31, 2017 9:32 AM
To: John Laprise <jlaprise at gmail.com>
Cc: accountability-cross-community at icann.org; ws2-jurisdiction at icann.org
Subject: Re: [CCWG-ACCT] 2nd reading of jurisdiction sub group report

 

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...

 

Customized immunity is dead on arrival in the USA. The approvals it would require juxtaposed with the current political environment would require ICANN to expend inordinate resources for a low chance of success. Furthermore and more generally, it is hard to imagine any government giving ICANN the kind of customized immunities sought. Formal consideration also includes an evaluation of feasibility which in this case approaches nil.

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. 

 

I understand your purpose but don’t find your argument for illegitimacy compelling. Some US non-profits function from that immunity but they are not ICANN.

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, and 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?

 

This is a moot question as obtaining said immunity is simply not politically feasible at this point in time.

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.

 

It isn’t parental guidance but strong rights protections. The US is a global outlier when it comes to freedom of expression and association. Government is strictly and strongly prohibited from intervening. Other jurisdictions simply do not have this quality. 

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. 

 

I fully agree that it is important to mitigate the impact of US law where it impairs ICANN’s mission and operation. This is a necessary evil. ICANN is a legal entity and must exist within a legal jurisdiction. There is no global jurisdiction in existence and so we must accept a national one. 

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. 

 

Speaking of fooling ourselves, what other jurisdiction should be considered. I’ve yet to hear a proposal or an empirical analysis regarding the relative merits of jurisdictions. All I hear is that it should be _some other_ jurisdiction… This is insufficient.

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. 

 

And here I notify you that I am filing a report to Ombuds for making such an accusation against the chairs and rapporteurs. If you can’t act in accord with the expected standards of behavior, you should choose not to participate

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. 

 

No. I find your speech unbecoming and insulting. If anyone has cast a shadow, it is you.

 

John Laprise



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 















 

 

sss

 

 

 

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