[Ws2-jurisdiction] RES: first draft of fact solicitation questions
parminder
parminder at itforchange.net
Thu Dec 1 07:34:20 UTC 2016
On Wednesday 30 November 2016 09:08 PM, Nigel Roberts wrote:
> Kavouss
>
> You seem to think ICANN has some form of statutory immunity.
>
> It doesn't.
Nigel, I dont think anyone is under any such illusion. Perhaps quite the
opposite, our problem is that ICANN does not have statutory immunity.
>
> It's not subject to ius publicum simply because it is not a state
> actor. (Public law being understood to be the branch of law that
> governs relationships with state actors). Post-transition it no longer
> even has the residual formalism of the contract with the Government
> for IANA.
We have been over this before. I quoted a UK academic reference and, as
far as I can remember, you agreed that this above is not the definition
of public law. Can you please quote from where you pick this definition.
Wikipedia say the following;
"/*Ius publicum*/ is Latin <https://en.wikipedia.org/wiki/Latin> for
public law <https://en.wikipedia.org/wiki/Public_law>. Public law
regulated the relationships of the government to its citizens,
including taxation, while /ius privatum
<https://en.wikipedia.org/wiki/Ius_privatum>/ (private law
<https://en.wikipedia.org/wiki/Private_law>), based upon property
and contract, concerned relations between individuals. The
public/private law dichotomy is a structural core of roman law and
all modern western legal systems. Public law will only include some
areas of private law close to the end of the Roman state. /Ius
publicum/ was used also to describe obligatory legal regulations,
such as /ius cogens <https://en.wikipedia.org/wiki/Ius_cogens>/,
which is now a term used in public international law
<https://en.wikipedia.org/wiki/Public_international_law> meaning
basic rules which cannot (or should not) be broken, or contracted
out of. Regulations that can be changed are called today /ius
dispositivum/, and they are used when party shares something and are
not in opposition."
Which is consistent with all the entries I can find on the first page of
google search. for instance
http://definitions.uslegal.com/i/ius-publicum/ says
"Ius publicum is the Latin for public law. It is to protect the
interests of the Roman state. Ius publicum was also used to describe
obligatory legal regulations, such as “ius cogens or jus cogens”,
which is a term in public international law that refers to basic
rules which cannot be broken."
In any case, I am ready to work with the terms "laws where choice of
law/ venue is available" and "where it is not available", which really
are public and private laws respectively...
However, despite many entreaties, it has not been made clear to me
whether we are considering the category of such laws where choice is not
available, they being obligatory, which are also called public laws.
As for laws where choice is available, that indeed is so much less of a
problem, and we can decide here how that choice should be exercised by
ICANN..(However, again, I havent seen the framing of the "problem" here
that we should be grappling with. Yes the issue area is laid out, but
what is the big problem that requires our attention? I am not saying
there isnt any, but let someone highliitght and we can begin working
towards their resolution.
On the other hand, where such problems have been highlighted, i.e. with
regard to public law (no choice, obligatory) area, there seems to be a
great resistance to moving forward to do something about them. It is
quite a stalemate.
parminder
>
>
>
> Nigel
>
> PS: For the sake of avoiding argument about wider meaning of 'public
> law', ICANN, of course, remains subject to the full panoply of state
> and Federal criminal law .. but that applies to everyone, all the
> time, anyway.
>
>
> On 30/11/16 15:18, Arasteh wrote:
>> Dear All,
>> I fully support issues raised by Parminder,Pedro and Avri to a) expand
>> questions, to ask the potential difficulties that US jurisdiction
>> continue to apply and adding a need for additional jurisdiction as well
>> as to properly address the currently ICANN immunity to Public Law as
>> exempted by US Immunity Acts
>> More over any such questions to outside need to be approved by CCWG
>> Regards
>> Kavouss
>>
>> Sent from my iPhone
>>
>> On 28 Nov 2016, at 22:07, Pedro Ivo Ferraz da Silva
>> <pedro.ivo at itamaraty.gov.br <mailto:pedro.ivo at itamaraty.gov.br>> wrote:
>>
>>> Dear subgroup colleagues,
>>>
>>>
>>>
>>> I would like to support Parminder's rewritten question below. I
>>> believe it perfectly complies with the general requirement of a
>>> evidence based approach and it complements the two original questions
>>> since it introduces the element of future likelihood.
>>>
>>> Our group should not only make recommendations based on
>>> problems/issues identified in the past, but also on perceived risks
>>> and threats that the current jurisdictional arrangement entails.
>>>
>>>
>>>
>>> I also support Mike Rodenbaugh's suggestion to broaden the scope of
>>> the questions. I think we should welcome the input of any stakeholder
>>> that may have facts and genuine (well-founded) issues to present.
>>>
>>>
>>>
>>> Finally, in order to eliminate the possibility of confusion, I would
>>> support dividing the document in two sessions: 1. Fact solicitation/
>>> 2. Perceived risks
>>>
>>>
>>>
>>> Regards,
>>>
>>>
>>>
>>> Secretário Pedro Ivo Ferraz da Silva
>>>
>>> Divisão da Sociedade da Informação (DI)
>>>
>>> Ministério das Relações Exteriores - Brasil
>>>
>>> T: + 55 61 2030-6609
>>>
>>>
>>>
>>> Secretary Pedro Ivo Ferraz da Silva
>>>
>>> Division of Information Society (DI)
>>>
>>> Ministry of External Relations - Brazil
>>>
>>> T: + 55 61 2030-6609
>>>
>>>
>>>
>>>
>>>
>>> *De:*ws2-jurisdiction-bounces at icann.org
>>> <mailto:ws2-jurisdiction-bounces at icann.org>
>>> [mailto:ws2-jurisdiction-bounces at icann.org] *Em nome de *parminder
>>> *Enviada em:* domingo, 27 de novembro de 2016 04:34
>>> *Para:* ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org>
>>> *Assunto:* Re: [Ws2-jurisdiction] first draft of fact solicitation
>>> questions
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> On Saturday 26 November 2016 08:23 PM, avri doria wrote:
>>>
>>> Hi,
>>>
>>>
>>>
>>> I am among those who would like to see a question included along
>>> the
>>>
>>> lines Parminder suggests. It should, however, be made by specific
>>>
>>> reference to existing laws that could be used to interfere with
>>> ICANN's
>>>
>>> ability to provide service to customers in other countries.
>>>
>>>
>>> I think that Avri's proposal would be a good way to go about it, as
>>> long as we do not the circumscribe the inquiry too much. I would
>>> prefer a general question, plus a specific component, like
>>>
>>> What do you think are the problems, if any, with continued
>>> jurisdiction of the US state over ICANN, as a US non-profit? Please
>>> justify your response with appropriate examples, analysis, etc.
>>> Especially, please indicate if there are existing and past instances
>>> that highlight such problems. Also, in terms of future likelihood,
>>> please mention specific institutions/ laws etc of the US state that
>>> could be used to interfere with ICANN's ability to provide global
>>> governance services to all people of the world, including in non US
>>> countries.
>>>
>>> (Pl note that I have replaced the last part on services to customers
>>> in other countries to global gov services to all people.)
>>>
>>>
>>>
>>> While I strongly support keeping the incorporation in CA in the US
>>> because the yet to tested accountability process depends on that,
>>>
>>>
>>> I am happy to support a separate exercise seeking expert opinion on
>>> whether accountability process does or does not pertain to private law
>>> which can choose its own jurisdiction of adjudication (as most private
>>> contracts can), irrespective of whether ICANN is subject to US public
>>> laws or not, as having immunity from them, whether on basis of an
>>> international law incorporation of US state granted immunity under the
>>> mentioned immunity laws of the US. In this manner, to ascertain
>>> whether ICANN's new accountability mechanism can or cannot still be
>>> adjudicated upon by Californian law/ courts, on the basis of making
>>> the necessary provision in ICANN's bylaws.
>>>
>>>
>>> I also
>>> support an effort to look for immunity from laws that affect ICANN
>>> ability to serve clients internationally - be they governments,
>>> companies or individuals. This immunity should be restricted to ICANN
>>> performance of its mission in relation to international entities and
>>> _not_ relate to contract law, labor law or local ordinances on garbage
>>> pickup.
>>>
>>>
>>> Of course, that is exactly what is sought. And that is possible in my
>>> view to do with immunity under the US immunity provisions.
>>>
>>> I do not think that this immunity can be gained in the WS2 timeframe,
>>> but I do believe that WS2 could initiate yet another CCWG effort to
>>> work
>>> on that, if the consensus of the group were to do so.
>>>
>>> The purpose of the WS2 is to make recommendations and for ICANN to
>>> begin action on that basis. That can be done in a few months, if
>>> agreed to.. It is not about necessarily completing the process within
>>> WS2 time frame. If WS2 does not give this rec, and passes it on to
>>> WS3, the same problem will arise; if we would not have begun working
>>> on it, immunity cannot be gained within any WS# time period as well,
>>> which then becomes an infinite process .....
>>>
>>> Let us be very clear; if we are working on immunity from US under
>>> relevant current provisions of US law, we can only recommend, as the
>>> wish of the world community. It if of course for the US state to act
>>> on it or not. But I would find it extremely strange for us not to
>>> arrive at a rec which in our view if what preserves the global public
>>> interest best, and is quite possible/ practical to do, just because we
>>> begin second guessing whether US state will actually do it, and if so,
>>> in what time frame. That I do not think if the job of this group or of
>>> CCWG as a whole.
>>>
>>>
>>> But first we need more of the background information, the so-called
>>> facts. We have to remember that with NTIA oversight, the application of
>>> some laws may have been different than it might be going forward. We
>>> need to understand whether that is the case or not, and whether there
>>> are laws that could now be applied to ICANN's activities that were not
>>> applied before.
>>>
>>>
>>> Yes I agree. This is a kind of investigation that is needed.
>>> Meanwhile, let me add, and I think this is what Avri is already
>>> alluding to, as now being not under a US gov contract/ oversight,
>>> ICANN in fact , in one way, may be more exposed to the full power of
>>> all laws and institutions of the US state than before. It is now just
>>> another private organisation.
>>>
>>> parminder
>>>
>>>
>>>
>>> avri
>>>
>>>
>>>
>>> On 26-Nov-16 05:08, parminder wrote:
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
>>>
>>>
>>>
>>> Sorry, Parminder, I see this as a request for opinions, not
>>> facts.
>>>
>>> The whole point of this exercise is to gain specific factual
>>> cases
>>>
>>> that show actual issues, not to provide people with an
>>> excuse to
>>>
>>> complain about what the “think are the problems.” I would
>>> reject
>>>
>>> adding such a question to the list
>>>
>>>
>>>
>>>
>>>
>>> Milton, you probably mean, you are against adding such a
>>> question :).
>>>
>>> I dont see you have any authority to reject anything any more
>>> than I
>>>
>>> have to reject your original formulation.
>>>
>>>
>>>
>>> Was not the community accountability mechanism instituted just
>>> on the
>>>
>>> basis of "what people think are the problems"? I saw no efforts to
>>>
>>> gather facts with surveys like
>>>
>>>
>>>
>>> "1. Are you aware of any instance in which anyone's business,
>>>
>>> privacy, or ability to use or purchase DNS-related services, has
>>> been
>>>
>>> affected by absence of a community accountability mechanism ?
>>>
>>>
>>>
>>> If any such known 'facts' exist I am unaware of them and will
>>> like to
>>>
>>> know.
>>>
>>>
>>>
>>> In case of the question of ICANN's jurisdiction of incorporation
>>>
>>> analytical facts are rather more evident, as raised in the civil
>>>
>>> society statement.
>>>
>>>
>>>
>>> The process we employ can lead towards certain kind of outcomes
>>> rather
>>>
>>> than others. And I see this particular process being aimed at
>>>
>>> foreclosing the jurisdiction of incorporation question. This is
>>> fact
>>>
>>> the "application of public laws question" because immunity from
>>> such
>>>
>>> application can be obtained even without changing ICANN's place of
>>>
>>> jurisdiction.
>>>
>>>
>>>
>>> Meaning ICANN can stay incorporated as US non profit in California,
>>>
>>> and it exempted from application form various public laws as per
>>> the
>>>
>>> US immunity act that I cited. I also said that, as far as I can
>>>
>>> understand, it is possible to keep the private disputes arising
>>> from
>>>
>>> ICANN's organisational system, including those about enforcement of
>>>
>>> community powers, to be subject to US/ Californian law, strictly
>>> only
>>>
>>> for such dispute resolution as per ICANN bylaws. We need to hear
>>> from
>>>
>>> this group why this is not possible or not preferred...
>>>
>>>
>>>
>>> parminder
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> *From:*ws2-jurisdiction-bounces at icann.org
>>> <mailto:ws2-jurisdiction-bounces at icann.org>
>>>
>>> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of
>>> *parminder
>>>
>>> *Sent:* Wednesday, November 23, 2016 11:54 PM
>>>
>>> *To:* ws2-jurisdiction at icann.org
>>> <mailto:ws2-jurisdiction at icann.org>
>>>
>>> *Subject:* Re: [Ws2-jurisdiction] first draft of fact
>>> solicitation
>>>
>>> questions
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> I will like to add a general question to the below:
>>>
>>>
>>>
>>> What do you think are the problems, if any, with continued
>>>
>>> jurisdiction of the US state over ICANN, as a US non-profit?
>>> Please
>>>
>>> justify your response with appropriate examples, analysis, etc.
>>>
>>> Especially, if there are existing and past instances that
>>> highlight
>>>
>>> such problems please indicate them.
>>>
>>>
>>>
>>> parminder
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
>>>
>>>
>>>
>>> These seem well-stated, except perhaps they should not
>>> be looking
>>>
>>> only for personal experience, but broaden the request to
>>> seek any
>>>
>>> experience the responder is aware of? So I suggest
>>> something like:
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> 1. Are you aware of any instance in which anyone's
>>>
>>> business, privacy, or ability to use or purchase
>>> DNS-related
>>>
>>> services, has been affected by ICANN's jurisdiction in
>>> any way?
>>>
>>>
>>>
>>> If the answer is Yes, please describe specific cases or
>>>
>>> incidents, including the date, the parties involved, and
>>> links to
>>>
>>> any relevant documents.
>>>
>>>
>>>
>>> 2. Are you aware of any instance in which ICANN's
>>>
>>> jurisdiction affected any dispute resolution process or
>>>
>>> litigation related to domain names?
>>>
>>>
>>>
>>> If the answer is Yes, please describe specific cases or
>>>
>>> incidents, including the date, the parties involved, and
>>> links to
>>>
>>> any relevant documents.
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> Mike Rodenbaugh
>>>
>>>
>>>
>>> RODENBAUGH LAW
>>>
>>>
>>>
>>> tel/fax: +1.415.738.8087
>>>
>>>
>>>
>>> http://rodenbaugh.com
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L
>>>
>>> <milton at gatech.edu <mailto:milton at gatech.edu>
>>> <mailto:milton at gatech.edu> <mailto:milton at gatech.edu>> wrote:
>>>
>>>
>>>
>>> CW and I have agreed on the following draft:
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> *Request for stakeholder input on jurisdiction issues*
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> The Jurisdiction subgroup of the CCWG Accountability is
>>>
>>> asking for the community to provide factual input on
>>> the
>>>
>>> following questions:
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> 1. Has your business, your privacy or your
>>> ability to
>>>
>>> use or purchase DNS-related services, been affected by
>>>
>>> ICANN's jurisdiction in any way?
>>>
>>>
>>>
>>> If the answer is Yes, please describe specific cases or
>>>
>>> incidents, including the date, the parties involved,
>>> and
>>>
>>> links to any relevant documents.
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> 2. Has ICANN's jurisdiction affected any dispute
>>>
>>> resolution process or litigation related to domain
>>> names you
>>>
>>> have been involved in?
>>>
>>>
>>>
>>> If the answer is Yes, please describe specific cases or
>>>
>>> incidents, including the date, the parties involved,
>>> and
>>>
>>> links to any relevant documents.
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> Dr. Milton L. Mueller
>>>
>>>
>>>
>>> Professor, School of Public Policy
>>>
>>>
>>>
>>> Georgia Institute of Technology
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> _______________________________________________
>>>
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>>>
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>>>
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>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
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>>>
>>>
>>>
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>>>
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>>>
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