[ianatransition] Disaster scenarios (was Re: Jurisdiction)

Barry Shein bzs at world.std.com
Wed Aug 6 19:33:45 UTC 2014


(note: text being responded to quoted in full and with context below):

I would assume that any such organization would be able to have their
policy process at issue reviewed by the court. And offer amicus curiae
et al where warranted.


 John Curran:
 > And many would say it is indeed essential that there is an ability for 
 > some external legal or arbitration process... The question is actually
 > in defining what would be a valid basis for seeking redress; would it be 
 > limited to arbitration for faithful adherence to the governance documents 
 > and principles (e.g. as would likely be the case under Richard's suggested 
 > immunity of jurisdiction approach) or would it somehow allow a single 
 > government to legislate independent policy outcomes for Internet identifier 
 > administration, even when explicitly in contravention of adopted policy.

I don't think an organization gets to define the boundaries of redress
for a court, except inasmuch as they can skirt its jurisdiction.

What if they are not the wronged party? What if their lawfully arrived
at policy causes someone else harm (economic or otherwise), even
without malice or negligence aforethought?

I think that's at the crux of this .IR controversy, a lack of
substantive interest in the underlying matter except as much as it
represents a manageability problem if implemented.

At no point in the past did the policy process have an interest in
this controversy or its origins either way.

Why should ICANN or IANA have any particular interest in making the
plaintiffs whole?

Their interest is in maintaining what they see as the managability and
integrity &c of ccTLD implementation. And they see a court's
intervention in .IR ownership as a threat to their dominion over that
manageability.

So what? And the plaintiffs have their side of the story.

Hence failing to compromise or agree it has passed to a court.

I think you're just asking me to accept the base assumption that
ICANN/IANA and only ICANN/IANA (or whomever is designated by this I*G
process) has authority over such matters.

I don't necessarily accept that.

I think a court should respect and take into account whatever efforts
IANA/ICANN/et al have made but they're still (one presumes) the court
of competent jurisdiction -- a forum in which to argue the issues with
authority to issue judgements.


On August 5, 2014 at 15:54 jcurran at istaff.org (John Curran) wrote:
 > On Aug 5, 2014, at 3:07 PM, Barry Shein <bzs at world.std.com> wrote:
 > 
 > > 
 > > I guess what I'm thinking during all of your scenario:
 > > 
 > >  But what if the court is right (and IANA is wrong)?
 > > 
 > > Perhaps "right" is too strong a term but courts tend to lay out their
 > > reasoning in decisions and even if you might wish they'd come to a
 > > different decision that doesn't necessarily mean: To The Barricades!
 > > 
 > > Even if the decision represents an inconvenience.
 > 
 > Agreed, however...
 > 
 > There has to be a shared fundamental belief by the community that the
 > multistakeholder protocol and registry policy development model (when
 > based on open, inclusive, and transparent processes) produces "correct" 
 > outcomes for Internet administration, so as long as compatible with 
 > established global norms with respect to public policy matters.
 > 
 > If that's not the case, then we can save a lot of time and effort by
 > simply handing all of these matters over to whatever court you think 
 > is going to produce "right" answers every time...
 > 
 > > ...
 > > One could say most court cases represent a failure by the parties
 > > involved to resolve a matter so one or more seeks the authority of the
 > > court.
 > 
 > And many would say it is indeed essential that there is an ability for 
 > some external legal or arbitration process... The question is actually
 > in defining what would be a valid basis for seeking redress; would it be 
 > limited to arbitration for faithful adherence to the governance documents 
 > and principles (e.g. as would likely be the case under Richard's suggested 
 > immunity of jurisdiction approach) or would it somehow allow a single 
 > government to legislate independent policy outcomes for Internet identifier 
 > administration, even when explicitly in contravention of adopted policy.
 > 
 > /John
 > 
 > Disclaimer: My views alone.
 > 
 > 
 > 

-- 
        -Barry Shein

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