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

Wed Aug 30 12:27:18 UTC 2017

Parminder,

Your mode of argumentation (in all the threads you are involved in at the
moment) relies on you requesting that anyone who disagrees with you
disproves your statements.

You have refused over and over to substantiate the various state of things
you are alleging: various types of encroachment by the US government,
chilling effects, etc.

It is my understanding that the way we work here is that if you want to
push for an issue and eventually a recommendation, you have to *prove *what
you are asserting. Just asserting that your points are valid because we
cannot disprove them does not lead us anywhere in respect of the work that
we have to do.

As was discussed in the last call (of which you may read the transcript)
some were of the opinion that keeping to a step-by-step and pragmatic
approach in our recommendations was better than bold requests, especially
if the only thing there is in support of these requests is "inferred"
threats.

2017-08-30 13:53 GMT+02:00 parminder <parminder at itforchange.net>:

>
>
> On Tuesday 29 August 2017 12:19 AM, Burr, Becky via Ws2-jurisdiction wrote:
>
> 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.
>
>
> Yes, it is general acceptance of law, if not the fear of it.... When the
> law is illegitimate, as when one country's law is applicable wrongly to a
> global gov process, the same, otherwise legitimate fear of law, is called
> "chilling effect". Both legitimate fear of law and chilling effect do the
> same thing, it stops certain behaviour and encourages others.
>
>  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”?
>
>
> The whole meaning of chilling effect is that is it generalised, not
> obvious and apparent, but strongly there. For instance, can you provide me
> an instance of when a person "did not" undertake certain road behaviour
> because of existence of traffic laws... Such negatives are difficult to
> instantiate, and are supposed to be inferred...
>
> parminder
>
>
>
> *J. Beckwith Burr*
> *Neustar, Inc.* / Deputy General Counsel & Chief Privacy Officer
> 1775 Pennsylvania Avenue NW DC 20006
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>
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> *From:* ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-
> bounces at icann.org <ws2-jurisdiction-bounces at icann.org>] *On Behalf Of *
> parminder
> *Sent:* Sunday, August 27, 2017 10:31 PM
> *To:* 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.
>
>
>
>
>
>
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-- 
Raphaël Beauregard-Lacroix
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