[Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN
parminder
parminder at itforchange.net
Sun Aug 20 04:05:53 UTC 2017
On Saturday 19 August 2017 08:58 PM, Paul Rosenzweig wrote:
> snip ....... I am happy to stop discussing general propositions it
> you will – which is why I asked for specifics. OFAC? Yes, I
> understand that. What else?
Again, have provided many examples many times, and repeatedly linked
docs, like this
<https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=/64066898/64948025/ICANN_jurisdiction_questionaire_-_JNC_response-0001.pdf>
and this
<https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf>
, but happy to present some of them again. Also, I have already
clarified that the authority of a state over private persons and
organisations within its territory covers thousands of aspects and
issues and can never be enumerated as items in a list. Also, new
expressions of such authority can manifest at any time, it represents
the almost unlimited sovereign power of its citizens, and so on.
But you want some examples beyond OFAC, let me offer some.
First, is the authority of, and know similar actions of domain name
seizure by, US Customs. I'd quote from aJust Net Coalition submission
<https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=/64066898/64948025/ICANN_jurisdiction_questionaire_-_JNC_response-0001.pdf>to
ICANN also mentioned above.
US executive agencies have routinely considered the DNS as a
legitimate lever to exercise its coercive powers. Especially for
entities outside the US that it seeks to impact, and who are
provided DNS service from an entity within the US, it has
unhesitatingly employed US jurisdiction over the US based DNS
provider to pull the DNS plug on the “erring non US based entities”.
Please see the below news reports on hundreds of such cases.
https://www.wired.com/2012/03/feds-seize-foreign-sites/
http://opinion.latimes.com/opinionla/2010/11/seizing-domain-names-without-coica.html
ICANN, as a US non profit, is no different than a US-based
registry or registrar located in the US, in terms of how a US
authority can and will employ it for coercive actions against
“errant entities”. Since most entities use a .com, .net, etc
domain name, till now the means of enforcement have been
through the corresponding registries, mostly Verisign. However,
in case of gTLDs operated by a registry outside the US, ICANN
alone can provide the means of coercive action – that of
disabling the gLTD. There is no question that, as Verisign has
so often been forced by US agencies to disable
domain names, sooner or later so will ICANN be forced. Doing
this just to uphold US law would constitute a constraint on
ICANN's responsibility to act in the interest of global Internet
community.
(quote ends)
Can you explain why a prospective application of OFAC over a cctld or
gtld is a problem (which I think it very much is) but the likely
problems with US Customs seizing a gTLD through ICANN is not (when very
symmetrical actions have taken place earlier)?
Next, I can point to the problem that can occur coming from the powers
and remits of various regulators in the US. FCC, for instance, has right
now only forborne its authority over Internet names and numbers. It has
statutory authority over telecom numbers, and as per current
interpretation of law in the US the Internet is a telecom service (which
interpretation may soon be revised, but that precisely is the point,
state's role and authority can keep shifting, we can never precisely
enumerate it). Earlier FCC had forborne its regulatory authority over
the Internet which at a latter point it asserted (the famous net
neutrality order). Simiarily, it is entirely possible that FCC vacates
its forbearance wrt to Internet names and numbers and decided to
exercise regulatory authority over ICANN and its policy decisions, ICANN
having no statutory role or authority in the US, and FCC being the
official authority in this area. How do you deal with this problem?
Next, an sector regulator, say the FDA, can exercise regulatory
authority wrt a gLTD that is specific to its sectoral remit, like
.health, .pharmacy, etc in FDA's case, and take objections to some
exclusion-inclusion principles that may be written in that gTLD's rules,
or insist that certain different principles be put there..... It could
in the future be done say by transport regulator for .cars, ........ the
possibilities are endless. Are we equipped to deal with this problem?
Then of course is the oft discussed issue that courts of the US apply US
law and even public policy. (You want me to show you a quote from a US
judgement to make this elementary and well recognised principle? I can
do it.) As a US based private org, ICANN is subject to authority of
almost every US court, which will always test any issue primarily from
US law and public interest point of view, before anything else. This can
very likely be prejudicial to interests outside the US, but that is the
nature of any state, its accountability is to its citizens first and
foremost....
Such issues are endless... There is no way we can find individual
solutions to this endless list of issues with US's unilateral
jurisdiction over ICANN. It can only be addressed by seeking immunity,
which is tailored to the extent that ICANN is still able to function
properly as an organisation within the US. Or it is not addressed at
all. And such an option is specifically available through US's
International Organisations Immunities Act.
parminder
>
>
> Paul
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
>
> My PGP Key:
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>
>
>
> *From:*ws2-jurisdiction-bounces at icann.org
> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of *parminder
> *Sent:* Saturday, August 19, 2017 10:56 AM
> *To:* ws2-jurisdiction at icann.org
> *Subject:* Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction
> of one country over ICANN
>
>
>
>
>
>
>
> On Saturday 19 August 2017 07:02 PM, Paul Rosenzweig wrote:
>
> Exactly right Raphael. To cite just a few examples, here are
> categories of what would be considered public laws in the US from
> which I assume nobody thinks ICANN should be exempt – criminal
> law; occupational health and safety law; general public zoning
> laws relating to urban development. The list is just a starter …..
>
>
>
> If I’m wrong – if you really do think that ICANN should be exempt
> from the criminal laws of the countries where it operates – then
> perhaps you should say so. I would profoundly disagree, but at
> least we could discuss substance.
>
>
> Dear Paul
>
> We are not inventing host country agreements here. This isnt being
> proposed for the first time. There is well established set of
> precedents and established practices in this regard. If a WIPO
> employee, WIPO having judicial immunity in Switzerland, commits a
> murder in Geneva, or even a financial fraud, everyone knows what to do
> and what will happen. Lets come out of this contesting elementary and
> well-established facts.
>
>
>
>
>
> And to be clear I assume, as well, that nobody thinks that the
> ICANN officials and institutions in Istanbul and Singapore and
> wherever else ICANN has offices should be exempt from Turkish or
> Singaporean law. I certainly don’t.
>
>
> Yes, not in criminal matters. And as I mentioned in an earlier email,
> it is possible for ICANN to also seek immunity in these jurisdictions
> as well. But that is not so important, these offices do not make and
> implement policy. Respective jurisdictions cannot force them to change
> ICANN's global policies. Even ifthey foolishly get into trying such a
> thing, ICANN can simply close down its office there and shift to
> another place, without affecting ICANN global work in any way. But not
> with US gov's actions or orders against ICANN. That is the difference.
>
> parminder
>
>
>
> Paul
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
>
> My PGP Key:
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>
>
>
> *From:* ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>
> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of *Raphaël
> BEAUREGARD-LACROIX
> *Sent:* Saturday, August 19, 2017 8:46 AM
> *To:* Thiago Braz Jardim Oliveira <thiago.jardim at itamaraty.gov.br>
> <mailto:thiago.jardim at itamaraty.gov.br>
> *Cc:* ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org>
> *Subject:* Re: [Ws2-jurisdiction] RES: ISSUE - unilateral
> jurisdiction of one country over ICANN
>
>
>
> Parminder: you seem to be wanting immunity from "US public law,"
> but unless you can define that more precisely than "all the laws
> that affect ICANN except the CCC" I would not be inclined to see
> that in as a recommendation in the final report. Yes, I have read
> all the materials that you have submitted, and yes there are many
> NGOs that have obtained (some form of) immunity under the said US
> act, but unless we can know immunity from what, that does not tell
> us much. And even if we did, we are still stuck with the problem
> of defining what we would want ICANN to be immune from. (except if
> we go with what I understand to be Thiago's stance) "Public law"
> is extremely ambiguous and equivocal and is not a category we can
> rely on.
>
>
>
> Thiago: is your stance one of seeking complete immunity? And
> besides, I am not sure how granting ICANN immunity of any sort
> would foster more participating in ICANN-related internet
> governance decision-making and debate. And don't you think it
> would then make ICANN /less /accountable? If I had to rank
> organisations in terms of accountability, to me ICANN ranks much
> higher than any treaty organisation (UN or OECD for example)
>
>
>
>
>
> 2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira
> <thiago.jardim at itamaraty.gov.br
> <mailto:thiago.jardim at itamaraty.gov.br>>:
>
> Dear All,
>
>
>
> It is indeed difficult to deny that the authorities of a
> country where an entity is based have a superior (and in many
> respects exclusive) claim to jurisdiction over the activities
> of that entity. For example, the territorial State is the one
> with exclusive enforcement jurisdiction, so that only the
> local enforcement agencies have the necessary authority to
> compel people in the country to comply with national laws and
> court rulings. In the case of ICANN, if the argument is made
> that any country in the world could pass legislation to compel
> ICANN to, say, shut down the DNS, the enforcement of that
> legislation would still need go through action of US
> enforcement agencies. In other words, US authorities would
> have to consent to that (a veto power if you will) and they
> would have themselves to enforce the required action (one
> could also think of the need for US courts to recognise
> foreign judgments, in exequatur proceedings, for them to be
> enforceable in the US, and the execution would have to be
> carried out through US organs).
>
>
>
> So let us not overlook this fact with the argument, which is
> simply not true, that all countries are in a similar position
> as the country of incorporation of ICANN to impact on ICANN's
> activities. Other countries do not have as much jurisdiction
> as the United States to influence and determine the course of
> many of ICANN's activities (in fact, the core of ICANN's
> activities), and it is with a view to ensure that they all
> participate on an equal footing on all Internet
> governance-related issues that immunities from US jurisdiction
> must be sought (N.b. jurisdiction includes prescriptive,
> adjudicative and enforcement jurisdiction).
>
>
>
> Best,
>
>
>
> Thiago
>
>
>
>
>
>
>
> ------------------------------------------------------------------------
>
> *De:*ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>
> [ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>] em nome de
> parminder [parminder at itforchange.net
> <mailto:parminder at itforchange.net>]
> *Enviado:* sábado, 19 de agosto de 2017 3:21
> *Para:* ws2-jurisdiction at icann.org
> <mailto:ws2-jurisdiction at icann.org>
> *Assunto:* Re: [Ws2-jurisdiction] ISSUE - unilateral
> jurisdiction of one country over ICANN
>
> Lest my response be mis-interpreted, I should clarify that:
>
> The incidence of and accountability to US jurisdiction and
> public laws wrt ICANN as US incorporated entity is not at all
> comparable to that of other countries' jurisdiction. It is a
> simple and obvious fact (though I know often contested here).
>
> In the circumstances, getting immunity from US jurisdiction/
> public laws is a much higher order problem that to obtain it
> from other countries. Right now that is the key problem
> confronting us.
>
> Having said this, I stand by the proposal for an international
> agreement whereby all countries extend such immunity to it in
> one go...
>
> parminder
>
>
>
> On Saturday 19 August 2017 09:56 AM, parminder wrote:
>
>
>
>
>
> On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote:
>
> Dear Parminder
>
>
>
> Can you please provide a list? That is, can you
> specify which US laws you wish immunity from under
> your tailored approach? And, can you also advise,
> will you also argue (I assume the answer is yes) that
> ICANN should seek immunity from the public law of
> other countries?
>
>
> Yes, ICANN very well should seek such immunity from all
> countries. As immunity from US law can only be provided by
> US gov, immunities from public law of all other countries
> will require consent of all other govs. The normal way is
> to obtain such immunity at one time under an international
> agreement singed at the same time but all countries,
> rather than go to about 200 countries one by one. I am
> very much for such an international agreement providing
> such international status and corresponding immunity to
> ICANN. If US were to agree I am sure all outer countries
> would quickly agree to such an agreement..
> parminder
>
>
>
>
>
> Paul
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> www.redbranchconsulting.com
> <http://www.redbranchconsulting.com/>
>
> My PGP Key:
> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
>
>
>
> *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:* Friday, August 18, 2017 2:20 AM
> *To:* Raphaël BEAUREGARD-LACROIX
> <raphael.beauregardlacroix at sciencespo.fr>
> <mailto:raphael.beauregardlacroix at sciencespo.fr>
> *Cc:* ws2-jurisdiction at icann.org
> <mailto:ws2-jurisdiction at icann.org>
> *Subject:* Re: [Ws2-jurisdiction] ISSUE - unilateral
> jurisdiction of one country over ICANN
>
>
>
> Now for the secons point raised by you.
>
>
>
> On Thursday 17 August 2017 02:29 PM, Raphaël
> BEAUREGARD-LACROIX wrote:
>
>
>
>
>
> 2. How would being subject to the California
> Corporations Code articulate itself with being
> immune? In fact this point is related to the first
> one. The CCC serves as a basic framework of
> corporate governance, something which is absent
> from most if not all international organisations.
> It imposes duties on ICANN and its constituents
> (board, etc.) and gives to some persons to sue
> ICANN over these. A blanket immunity would negate
> this.
>
>
>
>
>
> I have said this repeatedly, that I do not seek full
> but tailored immunity alone, which allows the
> operation of california corporations code over ICANN,
> and also any other such law that is required for ICANN
> to work in terms of its organisational or technical
> processes. I quote from the 'solution" part of my
> email to which you respond
>
> "This immunity should be tailored/customised in a
> manner that ICANN still remains subject to non
> profit law of the state of California under which
> it is registered, and its organisational processes
> function, and other such US laws and institutions
> that are strictly required for ICANN to be able to
> satisfactorily carry out its organisational,
> policy and technical functions (an assessment with
> respect to which should be undertaken asap)."
>
>
> Does this not already answer your point? And I also
> did give a link to anICANN commissioned report
> <https://archive.icann.org/en/psc/corell-24aug06.html>which
> provides examples of US based NPOs still subject to
> corresponding state's corporation law but provided
> partial immunity under the mentioned US act.
>
> parminder
>
>
>
>
>
> 2017-08-16 10:36 GMT+02:00 parminder
> <parminder at itforchange.net
> <mailto:parminder at itforchange.net>>:
>
> Issue:
>
> Various branches and agencies of the United
> States of America - from judicial and
> legislative to executive, including its many
> regulatory agencies - have exclusive (like no
> other country's) direct legal remit and power
> over ICANN, as a US non-profit organisation,
> with respect to practically every aspect that
> can conceivably be affected by state power
> (their range is so enormous that it is vain to
> begin listing them). These agencies/ y can and
> do exercise them at any time in pursuance of
> US law and policies, that have the primary
> purpose to uphold US public interest and US
> constitution. Many examples of such powers and
> their possible use have been given invarious
> public submissions
> <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire>
> to this group, including this one
> <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=/64066898/64948025/ICANN_jurisdiction_questionaire_-_JNC_response-0001.pdf>
> , and also this
> <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf>.
> Since ICANN is supposed to make policies and
> implement them with regard to the global DNS
> in the global public interest and not just US
> public interest, such unilateral availability
> and use of legal state power with one country,
> the US, over ICANN is untenable, and goes
> against basic principles of democracy
> including of "no legislation/ policy without
> representation". These principles are
> recognised by UN instruments as human rights,
> and most countries today including the US are
> built over them.
>
> Proposed solution:
>
> ICANN be granted immunity under the
> International Organisations Immunities Act of
> the US. This immunity should be
> tailored/customised in a manner that ICANN
> still remains subject to non profit law of the
> state of California under which it is
> registered, and its organisational processes
> function, and other such US laws and
> institutions that are strictly required for
> ICANN to be able to satisfactorily carry out
> its organisational, policy and technical
> functions (an assessment with respect to which
> should be undertaken asap).
>
>
>
> Additional notes:
>
> If I may add, this has been "THE" jurisdiction
> question since the WSIS days if not earlier (
> actually since the time ICANN was formed).
> Whether or not we are able to agree to
> recommending any solution to this jurisdiction
> question, it will be an unacceptable travesty
> of facts and history if this group does not
> accept this as an important, if not "THE",
> jurisdiction question in relation to ICANN.
>
> Whether or not this group is able to
> contribute to global public interest by making
> any positive progress on the question of
> ICANN's jurisdiction, following the principles
> of good governance and democracy, let it not
> regress and actually serve to obfuscate what
> is seen and known as the "ICANN's
> jurisdiction" question by everyone, by the
> global public at large. (For instance, in
> ICANN's own internal discussions like when the
> ICANN chair commissioned this report
> <https://archive.icann.org/en/psc/corell-24aug06.html>on
> the jurisdiction issue).
>
> If we can accept that this is a key
> jurisdiction (even if not "THE") question, but
> are not able to agree on a proposed solution,
> let us just write that in our report. But let
> us not contribute to alt-truth, a very
> dangerous phenomenon that is often spoke of
> nowadays. Both as a group, and individually as
> responsible persons - given an important
> global political responsibility -- we owe at
> least that much to ourselves.
>
> As for myself, and the groups that I work
> with, we will stand resolutely till the end in
> the path of any such synthesis of artificial
> reality - when a global group tasked to
> address the decades old democratic question of
> unilateral jurisdiction of one country over
> the global governance body, ICANN, comes up
> with a report that asserts that this is not a
> jurisdiction issue at all, or at least not an
> important one.
>
> parminder
>
>
>
>
>
>
>
>
>
>
>
>
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>
> --
>
> Raphaël Beauregard-Lacroix
>
> Sciences Po Law School 2014-2017
>
> LinkedIn
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> Raphaël Beauregard-Lacroix
>
> Sciences Po Law School 2014-2017
>
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