[Ws2-jurisdiction] [CCWG-ACCT] 2nd reading of jurisdiction sub group report
parminder
parminder at itforchange.net
Sat Nov 4 04:47:26 UTC 2017
Thanks, John, I respond inline..
On Tuesday 31 October 2017 12:32 PM, John Laprise wrote:
>
> Comments inline
>
>
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> Customized immunity is dead on arrival in the USA. The approvals it
> would require juxtaposed with the current political environment would
> require ICANN to expend inordinate resources for a low chance of success.
>
So it is a US problem then. it does not care about global opinion...
Good reason that we ask it to either give immunity to ICANN or ICANN
moves out of its jurisdiction. Further, I keep wondering whether some
people's problem here is just regarding the "current political
environment" or any political environment ever in the US.... If the
former, as seems to be implied by you, lets not worry about the current
environment. Almost 20 years after the formation of ICANN, for the first
time a community process is reviewing ICANN's jurisdictional position/
issue... I dont know when it would happen again. Not any time soon for
sure.... Therefore the job of this community process is to not worry
about the current dispensation and just give its views about what is
right for ICANN and global public interest... Let things move only when
the current political environment changes. In any case these things take
a long time even when a committee gives its recs. Everyone know that
CCWG can only recommend and not force different actors to act as per its
recs..
As for expending resources, other than the fact that ICANN seems to in a
habit of expending resources unnecessarily, I dont see what is the
resource requirement here. We have to form our recs, ICANN board to
agree on them and/or seek legal review and advice, and act then, and
that is it ...
> Furthermore and more generally, it is hard to imagine any government
> giving ICANN the kind of customized immunities sought. Formal
> consideration also includes an evaluation of feasibility which in this
> case approaches nil.
>
No idea why you say so. Please explain. Most global governance
organisations doing very important work, often more important than
ICANN, have been given customised immunities, so why not ICANN... You
make the proposition without providing any justification of it.
>
> I understand your purpose but don’t find your argument for
> illegitimacy compelling. Some US non-profits function from that
> immunity but they are not ICANN.
>
Again, you make a proposition in an axiomatic fashion, without
clarification of justification. So much for this ICANN exceptional-ism.
When it is argued that all important global gov functions are undertaken
by international organisations under international law, written by all
governments together, it is claimed no, not for ICANN. ICANN is
different, and it shoud be kept away from gov influences, and thus no
international law for it. Well, fine..... And now you are arguing in
exactly the opposite direction, with regard to US law and US gov... That
ICANN is different and THEREFORE, it cannot be given immunity from US
law (and thus shielded from US gov influence) !!!? I mean, is there any
limit to this hypocrisy -- you must be taking all non USians to be
subservient fools or something.
>
>
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> This is a moot question as obtaining said immunity is simply not
> politically feasible at this point in time.
>
One, this in itself is a very bad comment on US polity vis a vis global
public interest -- not a positive thing about the US. Further, as
argued, it does not matter if this wont agree but another political
dispensation could agree to it. We need to give our recs.... This is a
very weak argument.
> It isn’t parental guidance but strong rights protections. The US is a
> global outlier when it comes to freedom of expression and association.
> Government is strictly and strongly prohibited from intervening. Other
> jurisdictions simply do not have this quality.
>
Some hubris this, really.... For someone to say bluntly to the global
community in a global forum that his government and political system is
superior to that of others! John, this kind of a thing is not done in a
global forum, especially by people of more powerful countries... It is
almost like sexism, a man claiming that men are inherently better then
women.. This is exactly like that...
But then you may be more interested in facts rather than ethical
principles. Ok, lets get to that.... I would normally not comment on the
nature of the political system of another country, but I cant take this
kind of attitude sitting down -- which is a sweeping comment on all non
US political systems.
I have many things to say about freedom or expression and association
within the US, but lets go past that to other issues ..... ICANN is
about rights of all people in the world, not just those of the US... And
I am sure you realise that US constitution gives little protections to
outsiders' rights . If proof was at all needed Snowden showed it, and US
admin has been clear that they provide no privacy protection to non
USians (Trump I understand made a special executive order in this regard
)..... You need to really read about the US record about political and
civil rights of citizens of other countries (Recently, US papers on the
Suharto era mass killings in Indonesia have been declassified, and in
one cable a US diplomat in Jakarta is taking solace in the fact that
local religiously-motivated militia is killing most communists thus
solving the problem of arresting and keeping in prison so many of them
---- such instances are innumerable, and problems in such regard exist
in contemporary world as well, so lets be careful about making claims on
rights related records of the US which you are using to justify its
continued oversight of a key global resource. I am sorry, I did not want
to raise such issues but I need to respond to your hubris about the US
polity.)
John, do you just forget such simple things, that we are talking about
rights of the people of the whole world, not just US's. Well, that is
the benefit of sitting in the US (though I know a lot of USians who are
very sensitive to these issues).
Second, do you realise that is it not just FoE rights that apply to
ICANN, but also others, especially social and economic rights. You sure
know that ICANN distributes globally valuable resources, and there are
issues of fairness and distributive justice involved there -- All these
are matters of rights... And let me tell you, US has globally one of the
worst record on economic rights -- just see its stand on access to
knowledge rights (Intellectual property issues)....... And then the
current battle over .Amazon too provides a good pointer....
> I fully agree that it is important to mitigate the impact of US law
> where it impairs ICANN’s mission and operation. This is a necessary
> evil. ICANN is a legal entity and must exist within a legal
> jurisdiction. There is no global jurisdiction in existence and so we
> must accept a national one.
>
Now you have swerving dramatically from what we have been discussing
here, and in the CCWG process - which is customised immunity within US
law..... We are not talking here about global jurisdictions, which
otherwise is a subject worth talking about. Let us not make strawman
arguments here...
>
>
> Speaking of fooling ourselves, what other jurisdiction should be
> considered. I’ve yet to hear a proposal or an empirical analysis
> regarding the relative merits of jurisdictions. All I hear is that it
> should be _/some other/_ jurisdiction… This is insufficient.
>
See above, we are discussing customised immunity within US law and
jurisdiction... Let us not run away from that limited and clear topic...
Although, independently, I am ready to discuss with you/ others relative
merits of various national jurisdictions as well as international law.
>
>
>
> And here I notify you that I am filing a report to Ombuds for making
> such an accusation against the chairs and rapporteurs. If you can’t
> act in accord with the expected standards of behavior, you should
> choose not to participate
>
You are welcome to make such a report... I would be happy to have a
forum to prove how the process has been conducted in a partisan manner,
which I hope any such appellate process will make room for me to argue.
As for choosing not to participate, I cant abdicate bec ICANN affects
the lives of people and constituencies that I work with and for -- as
digitalisation of everything happens, it will affect them even more...
We can hardly afford leave such governance process to a few people who
undertake and accept such blatant assertion of the right of one, most
powerful, country of the world to trample the democratic rights of
everyone else. No, I am not leaving.
(Again, as I have said often, this is nothing to do with the great
nation of the USA, which I have great respect for. It has to do with
those who hold and exercise illegitimate power. And in civil society,
our key motto is to speak truth to power. )
parminder
>
>
> In the process they simply ended up casting long shadows on the very
> meaningfulness of ICANN's so called bottom-up processes - -they work,
> yes, but within a (fairly low) glass ceiling. And when you touch that
> ceiling, everyone knows it quickly that it has been reached.
>
>
>
> No. I find your speech unbecoming and insulting. If anyone has cast a
> shadow, it is you.
>
>
>
> John Laprise
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> parminder
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> On Fri, Oct 27, 2017, 4:24 PM parminder <parminder at itforchange.net
> <mailto:parminder at itforchange.net>> wrote:
>
> Greg
>
> It is unfortunate that among the few and very weak arguments
> that you put forward today in the f3f meeting about why
> customised immunity was never officially discussed in the
> sub-group you said that this was because it was offered as
> remedy without showing the issues that it addressed.... This,
> as I said during the meeting, is a shockingly false statement,
> and I said that I would provide evidence for it. You came back
> and stood by your statement. And so, the evidence as I
> promised is below.
>
> You set up a google doc on influence of existing jurisdiction
> on ICANN (link to it follows) to collect the issues that
> needed to be addressed, right.... One of the first entries
> made on it was mine, and it was extensively commented upon
> (most extensively by yourself).... This was close to the start
> of the process, near the middle of 2016. The entry on various
> issues I made was as follows.
>
> (cut paste form the doc begins)
>
> 1. A US court may find ICANN's actions, involving actual
> operation if its policies –like delegation of a gTLD,
> and/ or acceptance of certain terms of registry
> operation, to be in derogation of US law and instruct
> it to change its actions.
> 2. Emergency, including war related, powers of the US
> state – existing, or that may be legislated in the
> future, like for instance that involves country's
> critical infrastructure – may get invoked with respect
> to ICANN's policies and functions in a manner that are
> detrimental to some other country (or countries).
> 3. An US executive agency like OFAC may prohibit or limit
> engagement of ICANN with entities in specific countries.
> 4. FCC which has regulatory jurisdiction over US's
> communication infrastructure may in future find some
> ICANN functions and/ or policies to be such that it
> would like to apply its regulatory powers over them in
> what it thinks is the interest of the US public.
> 5. US customs, or such other enforcement agency may want
> to force ICANN to seize a private gTLD of a business
> that is located outside US which these agencies find
> as contravening US law, like its intellectual property
> laws.
> 6. A sector regulator in the US, say in the area of
> health/ pharma, transportation, hotels, etc, may find
> issues with the registry agreement that ICANN allows
> to a registry that takes up key gTLD denoting these
> sectors, like .pharma, .car, .hotel and lays
> exclusion-inclusion and other principles for the gTLD,
> and it may force ICANN to either rescind or change the
> agreement, and conditions under it.
>
> (ENDS)
>
> This entry with many comments is still visible in this doc
> that you developed,
> https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICPzbk/edit
>
>
> All these are directly issues that point towards customised
> immunity as the remedy -- and lest there be any doubt the
> connection was explicitly made in group's email discussions.
> Many of these issues were again underlined by a statement
> made, in Nov 2016 at Hyderabad ICANN, by nearly all Indian
> NGOs active in IG area and supported by two largest global
> coalitions in this area. Pl see
> http://itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf
> . The statement connects these issues to customised immunity
> as a possible remedy, providing full details. This statement
> was posted on sub -group's list and discussed. Then during the
> public comment period (response to the questionnaire, pl see
> the corresponding ICANN page) many inputs once again raised
> important issues and linked them to customized immunity as a
> possible solution....
>
> It is most shocking now at the end of the process to hear from
> the sub group's chair that customised immunity was always
> being proposed without showing the issues that it could
> remedy -- AND THAT WAS THE REASON IT NEVER GOT AN OFFICIAL
> SLOT FOR DISCUSSION.
>
> Greg, you must either disprove what I am saying here, and
> saying it with documented evidence, or withdraw your statement
> that undermines the large amount of work that so many of us
> did, and indeed the whole sub group's working..... We cannot
> let such false statements to be recorded as the historical
> records of this group's work, and the transcript of today's
> f2f meeting is supposed to go as a record annexed to the final
> report..
>
> Our problem is; there was just too much prejudice, and people,
> including prominently the process heads/ chairs, were simply
> not listening to many us, they were tuned out even before the
> deliberative process begun!! This is not a consultative and
> participative process, this is something made to look like one....
>
> Look forward to your response
>
> parminder
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