[Ws2-jurisdiction] RES: ISSUEertion of one country over ICANN

Sun Aug 20 08:54:06 UTC 2017

Your arguments are starting to be worthy of the level of discourse 
currently obtaining in the USA. And I would be reticent at using 
defamatory words such as 'falsehood' (a synonum of "lie").

It is my submission and I will not stop "propagating" it (i.e. 
advocating for it) simply becuase one person denies it.

You are setting up a straw man, labelling it ming and then knocking it 
down. Nowhere did I refer to immunity being in respect of everything 
ICANN does (although that IS the Vienna Convention model in respect of 
the missions of foreign states)

Supposing ICANN (PTI) gets immunity from liability for anything it does 
in respect of changes to the IANA database. It will then "be able to do 
anything it likes" in terms of redelegations without the affected 
parties having recourse to law.

And as we've seen with .XXX, .AFRICA and more latterly .AMAZON, 
sometimes ICANN's internal mechanisms need to be held up to external 
account and scrutiny.

And the second straw man is the myth of parental control. ICANN had this 
until last year, by virtue of USG's control of the IANA contract.

By and large (and there WAS occasional unsatisfactory parenting 
behviour) that 'parenting' was one of benign neglect, allowing ICANN to 
make its own mistakes and grow.

But that's gone now. ICANN stands on its own two feet as a 
non-govenmental, non-profit organisation, which must be accountable to 
the law of whichever land it is established in.

It happens to be established in the US. I have a number of reservations 
about the legal system of the US.

In the IFWP in 1998-1999 I argued for Geneva but it quickly became 
apparent that wasn't going to happen. I would also be very happy with 
London or some other jurisdiction that is well developed for (just as an 
example) maritime or aviation law.

But it is where it is. And we are repeating ourselves.

I submit that ICANN must be within the law of whichever jurisdiction it 
operates in and that principle means "no immunity from law".

On 20/08/17 09:21, parminder wrote:
>
> On Sunday 20 August 2017 01:14 PM, Nigel Roberts wrote:
>> That's for background information.
>>
>> As you know, all litigation requires huge resources (both financial
>> and human), and that's no different whether it's ICANN or anyone else
>> as Defendant.
>>
>> But providing immunity would allow ICANN "to do whatever it likes".
>
> This is simply not true, it a falsehood and Id appeal to you to stop
> propagating it. Apart from that we should have faith in ICANN's own
> governance model, I have argued repeatedly that immunity for ICANN can
> be tailored precisely so that it largely covers its core functions and
> not just everything that ICANN does. Again referring tothis ICANN report
> <https://gnso.icann.org/en/issues/igo-ingo-crp-access-initial-19jan17-en.pdf>
> where the concept of functional immunity ("immunity concerns activities
> immediately or directly related to the performance of tasks entrusted to
> the organization"), immunity waivers, etc are discussed in detail,
> although in a somewhat different context.
>
> The report shows how immunity can be tailored to cover largely just the
> core functions of an organisation, and the organisation can itself waive
> its immunities in many regards.... So, please count your problem areas,
> and we can seek immunity waiver in those areas, financial frauds, labor
> laws, which ones?
>
> And if it is your case that ICANN's own governance system is inadequate
> to even performing its core functions properly, and there is a risk that
> it could go rouge even with respect to them, and therefore it needs
> parental guidance/ control from the state of US, that precisely is my
> problem, and not acceptable to me and most of the world. Although I
> remain amazedat your description , as an ICANN insider, of the state of
> ICANN governance and responsibility. It is quote worthy.
>
> One would have hoped that in all these years ICANN had evolved a
> governance and accountability system that did not allow it "to do
> whatever it likes" but it seems that your testimony is that this is not
> the case, and its need oversight by the US state to check its abuse of
> powers. Pity!
>
> parminder
>
>
>>
>> Not on my watch.
>>
>> On 20/08/17 07:42, parminder wrote:
>>> Nigel
>>>
>>> Your principal contention is that ICANN's own governance processes
>>> are (by your account, pathetically) inadequate to ensure against
>>> rogue behaviour. And yes you have been consistent in making this
>>> argument.
>>>
>>> That surprises me coming for an ICANN insider. One would well ask,
>>> why when a UN body, OECD, WIPO, WTO, and many non profits enjoying
>>> immunities like I have given examples of can resist becoming rogue
>>> cant ICANN too do so? Is all the charade of an unprecedented and
>>> exemplary multistakeholder mode of governance of ICANN really not
>>> working, neither is it workable? And when you guys were presented
>>> with the option of a more accountable membership based model you guys
>>> rejected it last year. Why so?
>>>
>>> If ICANN's own governance structures are not adequate and proper,
>>> work on them, rather than working against, like in rejecting the
>>> membership model. Dont seek tutelage of undemocratic powers. If
>>> indeed you cant work without oversight, lets devise a good democratic
>>> method of oversight which is representative of the whole world, and
>>> not just that already most powerful of the countries, the US. No,
>>> this is hegemony, this is abject surrender and subjection. This is no
>>> way to conduct a global political discourse. Goes back to the nice
>>> old adage: you cant have your cake and eat it -- celebrate ICANN as a
>>> world beating governance model, and also claim, no it is not adequate
>>> to stop ICANN from going rogue, and needs parental control. Choose
>>> your side!
>>>
>>> Parminder
>>>
>>> PS: BTW, I dont really understand the below case study you often hint
>>> at.. It seems that the company went broke bec it could not bring a
>>> suit against ICANN, did not have the resources etc to do so... But
>>> then, I dont see what has changed now, and how would it be any better
>>> now. Please do be very clear what case are you making.
>>>
>>>
>>> On Sunday 20 August 2017 11:51 AM, Nigel Roberts wrote:
>>>>
>>>> On 20/08/17 04:09, parminder wrote:
>>>>
>>>> >> . And don't you think it would then make ICANN /less /accountable?
>>>> > Maybe less accountable to US public, but more accountable to the
>>>> global
>>>>
>>>> Well, our organisation is not a part of the US public, but the global.
>>>>
>>>> Nonetheless we strongly think that immunity would make ICANN less
>>>> accountable to the global public interest. So we fundamentally
>>>> disagree.
>>>>
>>>> Any form of immunity would once again mean ICANN Board and/or staff
>>>> would return to the approach of the early 2000s when (to use a
>>>> phrase in common use among a number of my colleagues in the ccTLD
>>>> world) "they do whatever they like".
>>>>
>>>> And I have personal knowledge of such things: one company I was
>>>> involved in the very early days of the Internet was directly and
>>>> most seriously affected (the company no longer exists, pretty much
>>>> as a result)  by ICANN acting (we would have said) without any
>>>> proper legal basis in US law. They were, in fact, at the behest of a
>>>> **non**US (or "foreign") governmental entity.
>>>>
>>>> At that time ICANN was partially "protected" by being, in effect a
>>>> state actor (i.e. ICANN merely "recommended" certain actions to
>>>> another party, who then acted under US Government contract). The
>>>> affected party was a start-up with limited resources to bring suit
>>>> anyway, irrespective of the Governmental connextion and the company
>>>> consequently had to close down.
>>>>
>>>> Personally I welcome the change to ICANN becoming a purely private
>>>> body (something I've been working for since 1999), and would oppose
>>>> any proposals or suggestion to immunise it.
>>>>
>>>> But you fail to take this reasoned, and reasonable, view into
>>>> account when you repeat your clamour for ICANN to be given one or
>>>> more "get- out-of-gaol-free cards".
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>> On 20/08/17 04:09, parminder wrote:
>>>>
>>>>>> . And don't you think it would then make ICANN /less /accountable?
>>>>> Maybe less accountable to US public, but more accountable to the
>>>>> global
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