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

Sun Aug 20 13:44:59 UTC 2017

On Sunday 20 August 2017 07:06 PM, parminder wrote:
> snip
> It is unparliamentary language and it is clearly unprofessional to use
> to another member of the WG and I am accordingly extremely
> disappointed at your insistence in so doing.
>
> If you meant to suggest that my opinion was wrong, why didn't you say
> so, instead of using words that say I am in the habit of lying (which
> the page to referred us to has a reference that says that is what it
> means.
> I have said, i did not say you were lying. But yes there was expression
> of unhappiness that less than full care and diligence was being provided
> to arriving out at the real truth, in circumstances where it was IMO not
> so difficult to do so, and in fact much material had been provided to
> assist in that cause. That is the meaning in which the word "falsehood"
> was used -- not so much an act of commission as significant omission.
>
> As for parliamentary traditions, here is a definitive list kept by the
> Canadian parliament on what words can be used and which not --
> "deliberate falsehoods" cannot be used but "falsehood" can be.... But
> thanks for striving for such high standards for conversations on this
> list. I will keep it is mind, for me, and also for others ..

Further to the explanation of how I used the term, I willingly withdraw it.

Can you now respond to the question of technical vs democratic notions
of legal regimes.... parminder
>
> parminder
>
>> I am not prepared to engage further in this if you don't have the
>> decency to withdraw the word.
>>
>>
>>
>>
>>
>> On 20/08/17 11:46, parminder wrote:
>>>
>>> On Sunday 20 August 2017 03:42 PM, Nigel Roberts wrote:
>>>> I see you apologise for my sensitivity to the suggestion I am lying
>>>> but not for making the suggestion itself. I find that really quite
>>>> mealy-mouthed.
>>>>
>>>> I invite you, please, to clearly withdraw the use of the offensive
>>>> word "falsehood" which is clearly outwith the standards of behaviour
>>>> to expected.
>>>>
>>>> It seems to me that either
>>>>
>>>> (a) you meant to suggest that my assessment is inaccurate and/or my
>>>> opinion is incorrect or
>>>>
>>>> (b) you are intentionally stating that I am propagating falsehoods
>>>> (i.e. telling fibs, lies etc).
>>> The former. Falsehood is also simply "an untrue statement".
>>> https://www.merriam-webster.com/dictionary/falsehood
>>>
>>> When I said
>>>
>>> It is a falsehood that if provided immunity ICANN can "do whatever it
>>> likes"  (It cannot be a lie bec it is not a matter about which you have
>>> some privileged knowledge any more than many/most others)
>>>
>>> it is obvious that it is in this sense the term is used.
>>>
>>> parminder
>>>
>>>
>>>> Which is it?
>>>>
>>>>
>>>>
>>>>> 1. Falsehood, fib, lie, untruth refer to something untrue or
>>>>> incorrect. A falsehood is a statement that distorts or suppresses the
>>>>> truth, in order to deceive: to tell a falsehood about one's ancestry
>>>>> in order to gain acceptance. A fib denotes a trivial falsehood, and
>>>>> is often used to characterize that which is not strictly true: a
>>>>> polite fib. A lie is a vicious falsehood: to tell a lie about one's
>>>>> neighbor.
>>>>>
>>>>>
>>>>> On 20/08/17 10:34, parminder wrote:
>>>>
>>>>
>>>> On 20/08/17 10:34, parminder wrote:
>>>>
>>>> On 20/08/17 10:34, parminder wrote:>
>>>>> On Sunday 20 August 2017 02:24 PM, Nigel Roberts wrote:
>>>>>> 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 a falsehood that if provided immunity ICANN can "do whatever it
>>>>> likes", the expression you used. But I apologize if the term offends
>>>>> you.
>>>>>
>>>>> I see below that for ICANN's actions regarding root zone youd like
>>>>> them
>>>>> to be subject to US law. This is what I object to. And herein lies the
>>>>> difference.
>>>>>
>>>>> You want everything to be subject to rule-of-law. I too am a great
>>>>> votary of rule of law. But it seems that it does not matter to you
>>>>> whether the law in a particular case is collectively determined by
>>>>> those
>>>>> who are subject to it or not, or in other words, whether a law is
>>>>> democratic or not. You just want some law that meets your subjective
>>>>> standards (I hear US, Swiss, UK laws mentioned, but alas no poor under
>>>>> developed country! So here we are!), no matter who makes such law, and
>>>>> what kind of polity stands behind it. This is a very technical
>>>>> approach
>>>>> to law, and mine is a democratic approach.... That, is the key
>>>>> difference here, and perhaps is at an ideological level, and thus
>>>>> irreconcilable.
>>>>>
>>>>> But let me know if I misrepresent your views and approach.
>>>>>
>>>>> parminder
>>>>>
>>>>>> 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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