[Ws2-jurisdiction] [EXTERNAL] Re: Issue: US's courts' judicial writ over all aspects of ICANN

[Burr, Becky]

I don’t think that ICANN’s decision to comply with applicable law – in the US or in any country in which it operates – is the product of a chilling effect.  Can you give an example where you believe ICANN has refrained from the "legitimate exercise of natural and legal rights by the threat of legal sanction”?


J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW DC 20006
Office: +1.202.533.2932  Mobile: +1.202.352.6367


Follow Neustar: LinkedIn / Twitter
Reduce your environmental footprint. Print only if necessary.

________________________________

The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message.

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: Sunday, August 27, 2017 10:31 PM
To: ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
Subject: [Ws2-jurisdiction] Issue: US's courts' judicial writ over all aspects of ICANN


Issue

As a US based entity, ICANN is subject to full range of US laws. Almost any US court can take up for its judicial consideration whether ICANN works within each of such applicable law or not. This brings up a high likelihood that any time in the future ICANN will have to change under US courts' directions its actions taken in pursuance of its global governance function of developing global DNS related policies and implementing them. This is obviously undemocratic and inappropriate that one country's law and its court decide what a global governance body like ICANN will or will not do.

Further, it is not only a matter of a court actually finding legal fault with an ICANN action and forcing to change it. Knowing that ICANN is subject to the full range of US public law, ICANN would always take care to keep its actions with them (as it has no doubt done till now). This is what is called as the "chilling effect<https://urldefense.proofpoint.com/v2/url?u=https-3A__en.wikipedia.org_wiki_Chilling-5Feffect&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=8TIH8TteuvkkYq6CySpUDsb-rFI-WPDqQStlF4NiiBo&s=ng0bEDpiuJb18V4iMwJMA0HArPdpsdPFUEfcZW8cfGw&e=>". This phenomenon which is already in existence with ICANN's actions, since its inception, is undemocratic and illegitimate from the point of view of the non US people, since they did not participate in making the US laws, and the laws they may have actually developed may even be in contradiction to US law on a particular subject. This phenomenon therefore leads to denial of democratic rights to non US citizens.

Solution:

Any given court would not heed to any pleadings about ICANN being special as a global governance organisation, and should be treated as such. Neither is the court legally supposed to do, under the US constitution and laws. The only solution there is a general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law.




-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/ws2-jurisdiction/attachments/20170828/76f9aecd/attachment-0001.html>