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<div class="moz-cite-prefix">On Wednesday 01 February 2017 05:10 AM,
Greg Shatan wrote:<br>
</div>
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<div class="gmail_default"
style="font-family:verdana,sans-serif">Thanks for your views,
Parminder.</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif">I'll look forward to
everyone's responses to the hypothetical, the strawman
responses, Parminder's response, and any other responses. If
you are a participant in this group, it really behooves you to
jump into this discussion.</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif">I won't reply to
Parminder's specific response; I'd rather that other members
do that. However, I have a couple of "big picture"
observations that I'd like to share, and see if people think
there is merit in them (or not).</div>
</div>
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<br>
Greg, thanks for your response. I like the way to stake up various
premises and their relationship with one another. Find my responses
below.<br>
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<div class="gmail_default"
style="font-family:verdana,sans-serif"><br>
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<div class="gmail_default"
style="font-family:verdana,sans-serif">I think there's an
overarching premise or presumption that's being missed here.
That is the presumption that ICANN should be subject to the
rule of law; more specifically, that ICANN should be subject
to antitrust laws and intellectual property laws and privacy
laws and health laws and labor laws and civil rights laws and
anti-corruption laws, etc., etc. </div>
</div>
</blockquote>
<br>
I have no doubt that ICANN should be subject to rule of law (as
against rule by persons). I also agree that it comes even before the
premise that ICANN should be subject to democratic rule of law, but
then please do not entirely forget or ignore the "democratic" part,
which your response unfortunately does. Rule of democratically
written law is a close second to the need for rule of law in the
first place. I request the group to also focus on this part. <br>
<br>
I can see three kinds of (rule of) laws that ICANN should be subject
to<br>
<br>
1. Private law, as would cover ICANN's internal working and its
external private contracts<br>
<br>
2. Criminal law, which pertains to fraud and such things <br>
<br>
3. Larger regulatory public law, as in areas like anti-trust,
intellectual property, privacy, health, labour etc. <br>
<br>
As we have discussed here earlier, category 1 is a matter of choice
for ICANN, and it can stay to be US/ Californian law, or as
otherwise agreed between ICANN and a contracting party.<br>
<br>
About category 2, the law of domicile of ICANN would apply, which
again would be US, premised on ICANN staying in the US (which I do
not have a problem with)<br>
<br>
This brings us to category 3, which is the real issue here. Most
international organisations do not undertake a directly executing
function, and even if they do it pertains to a narrow sectoral realm
and the corresponding rules are written simultaneously by the
concerned international body. The "Internet sector" however is a
cross cutting or meta one, impacting almost all other sectors.
ICANN's policies of assigning domain names also impact all sectors.
This brings it into a possible relationship with laws of all
sectors. Yes, this is somewhat unique. But as we developed unique
global mutistakeholder mechanisms for management of critical
Internet resources, so do we need innovative and bold approaches to
the law and public policy, or jurisdictional, aspect of Internet's
core resources management. But to do with by going forward rather
than backwards on the key principle of public governance, that is
democracy. <br>
<br>
In this background, it is not acceptable, as you propose, that ICANN
should be subject to US anti-trust, intellectual property, health,
labor, etc laws (in terms of ICANN's substantive policies and not
its personnel etc as located in the US). National laws are made with
national interest in mind, and US national interest does not fully
overlap with global public interest (as the world's most powerful
country, it does not often even substantially overlap). This is
another important premise that must be followed through. This
premise can be proved in many ways. <br>
<br>
What then is the alternative? That is what we must focus upon. ICANN
has a constitutional commitment to follow international agreements.
Most issues related to ICANN policies can be adjudicated with
reference to wisdom existing in these international agreements,
which cover most social sectors. In addition, for areas that ICANN
policies may need clearer legal guidance, the necessary legal
principles can be written in newly made international law. (Tunis
Agenda clearly calls for "<font face="Verdana"><font
style="font-size: 12pt" size="3">development
of globally-applicable principles on public policy issues
associated
with the coordination and management of critical Internet
resources" para 70.) And to adjudicate based on these
international laws, we need a new global judicial system.
Efforts for global judiciary has been made recently, like in the
case of International Criminal Court .... Internet, as a new,
fundamentally global phenomenon is the right area to go further
in this direction. We must come up with creative thinking for
this. For me, some kind of an Internet/ digital bench of
International Court of Justice, specially mandated for this
purpose by an international agreement, appears to be a good
solution. But there can be others. <br>
<br>
In the interim, one would expect the ICANN board to work in
consonance with international agreements and laws in various
sectors. Since it is a commitment under its bylaws, this can
also be taken to the current appeals/arbitration processes
(which being fundamentally designed for economic/ civil matters,
I find not appropriate as a permanent arrangement for
adjudicating various public law issues). In any case, GAC is
supposed to advice on various public policy matters, and that
should be based on international law, plus ad hoc inter-gov
agreement in GAC over areas of gap.<br>
<br>
We should divest ICANN of US jurisdictional control as soon as
possible (which is <i>now</i>), as we launch on these globally
democratic institutional developments to take care of public
law/ policy aspects of ICANN's working. I</font></font><font
face="Verdana"><font style="font-size: 12pt" size="3">n the
interim, e</font></font><font face="Verdana"><font
style="font-size: 12pt" size="3">nough institutional mechanisms
exist for ICANN to address new, unexpected situations in this
regard,, with community mechanisms, GAC, IRP, etc. </font></font>
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<br>
parminder <br>
<br>
<blockquote
cite="mid:CA+aOHURKY_48-LMo+Hp6Or0=+QJN588gec-93si91wRaU=SxKg@mail.gmail.com"
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<div class="gmail_default"
style="font-family:verdana,sans-serif">-- all of the laws that
make up a body of national law. As far as I know, these are
laws that exist at a national level. There are treaties and
conventions designed to harmonize the laws of different
nations (and to deal with differences between those laws), but
these are not in themselves laws that would apply to any
entity. </div>
<div class="gmail_default"
style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif">It's my understanding
that there is no "international law" that would impose these
types of laws, or indeed the rule of law, on any entity such
as ICANN. As such, it's my understanding that there is no
"international law" that ICANN can be moved to.</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif">On the other hand the
treaties and conventions generally bring the laws of the
signatory nations into fairly close harmony or at least
coordination. As a result, the relevant laws of one signatory
are not terribly different than that of another. Taking
treaties, conventions, legal history, etc., all together,
there is a fairly well-harmonized web of laws of different
nations at the national level. (There are of course areas
where there are greater differences, and even the smaller
differences are not indistinguishable.)</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif">As mentioned above, the
premise is that ICANN should be subject to the rule of law,
and to the types of laws that exist at a national level.
Further, that adherence to these laws is overall, a positive
influence on keeping ICANN accountable and allowing ICANN to
set and operate its policies. Thus, ICANN needs to be subject
to the laws of some country. I'd be interested to see how
comfortable (or uncomfortable) members of the subgroup are
with that premise. (As a side note, this seems incompatible
with the idea of "immunity.")</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif">A further premise that
implements the prior premise is that US law is a reasonable
set of laws to be used for that purpose, and that US courts
are reasonable venues for the resolution of disputes involving
ICANN. More specifically, given the mandate of this Subgroup,
the premise is that US law and courts are reasonably well
suited to keeping ICANN accountable, and for the operation of
ICANN's policies. I'd be interested to see how comfortable
(or uncomfortable) members of the subgroup are with this
premise. </div>
<div class="gmail_default"
style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif">ICANN is, of course,
subject to the laws of a number of other jurisdictions where
it has a presence, and may be subject to litigation in those
jurisdictions, but we can put that aside for the moment.
Similarly, there may be other jurisdictions that are also
reasonable for such use, and each would have their trade-offs
with any other. But, unless we identify intractable problems
with accountability or ICANN's ability to operate, I'm not
sure whether that's relevant.</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif">In looking at US law
(or any other applicable national law), we would need to
consider whether these laws are likely to interfere with
efforts (including those of the multistakeholder community) to
hold ICANN accountable, or with ICANN's ability to set and
implement its policies. On the other hand, we would also need
to consider whether these laws are likely to protect (and even
enhance) efforts to hold ICANN accountable (including
multistakeholder efforts), and to protect ICANN's ability to
set and implement its policies.</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif">In the abstract,
without citing any law or any ICANN policy or action, one
could postulate that some national law could interfere with
ICANN's accountability or operation of policies. That would
be true of any set of laws (even "international laws"). The
converse would also be true (that some national law could
protect ICANN's accountability or operation of policies). As
such, it doesn't seem helpful (in my view) to operate at that
level of abstraction.</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif">Rather, I think it's
more helpful to deal with concrete facts -- actual experiences
and specific hypotheticals grounded in fact (specific laws,
specific actions, etc.). We are making efforts in that
direction. The review of ICANN's litigation is one such
effort. This effort should give us useful data on the extent
to which US law has been protective of, or interfered with,
ICANN's accountability or operation of policies. Our
questionnaire is another such effort.</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif">Apologies for going on
at length. I look forward to your thoughts.</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif">Greg</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif"><br>
</div>
<div class="gmail_default"
style="font-family:verdana,sans-serif"><br>
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<div class="gmail_extra"><br>
<div class="gmail_quote">On Tue, Jan 31, 2017 at 12:27 PM,
parminder <span dir="ltr"><<a moz-do-not-send="true"
href="mailto:parminder@itforchange.net" target="_blank">parminder@itforchange.net</a>></span>
wrote:<br>
<blockquote class="gmail_quote" style="margin:0px 0px 0px
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<div bgcolor="#FFFFFF"> Dear Greg<br>
<br>
Thanks for your document with the hypothetical # 1 and
its "Initial strawman responses" which I understand are
just to spur a discussion.<br>
<br>
First of all I must mention that I consider this
hypothetical question as the most important one that we
are faced with.<br>
<br>
Next, I will comment on the strawman responses, before I
propose my own response to the hypothetical.<br>
<br>
The strawman responses are premised on considerations
that (1) ICANN already works in manner that is observant
of (the whole gamut of) US law, (2) a rightful court
judgement would simply further attune ICANN to US law,
including changing its practices and policies
accordingly in the future. <br>
<br>
These two considerations are taken in the "strawman
responses" to be good, positive things. Herein lies the
crux of the jurisdiction issue, and the nature of main
difference between who support the status quo and those
who call for changes that ensures release of ICANN from
US jurisdiction.<br>
<br>
Those supporting status quo seem to see nothing wrong
with ICANN working and adjusting its policies to the
full range of US law, whether about foreign sanctions or
anti trust or intellectual property, or privacy, or
health or other sectoral laws and regulation (including
legitimate orders of regulatory agencies like FTC, FCC,
FDA, and so on). But that is precisely the problem for
the rest of us. As I said a few times here, in
democracy, there can be "no legislation/ regulation
without representation". That is the key issue here. And
this can only be resolved by either moving ICANN to
international law or at least get for it jurisdictional
immunity under US International Organisations Immunities
Act . <br>
<br>
Now let me provide my response to the hypothetical # 1,
which is <br>
<blockquote>In the following hypothetical, What are the
influences of ICANN’s existing jurisdiction(s)
relating to resolution of disputes (i.e., governing
law and venue) on (1) the actual operation of ICANN’s
policies, (2) accountability mechanisms and (3) the
resolution of disputes?
<p>A plaintiff initiates litigation, challenging
ICANN's actions (or inactions) involving actual
operation of its policies – like delegation of a
gTLD, and/or acceptance of certain terms of registry
operation, on the basis that plaintiff (or a class
including plaintiff) would be injured and that
ICANN’s actions or inactions are in violation of
law. The court finds that ICANN’s actions or
inaction violate the law and issues an order
requiring ICANN to change its actions.</p>
</blockquote>
My response<br>
<br>
Following such an adverse decision, ICANN will have no
option other than to change its policies and/ or
operation of its policies as per the court's directions.
(This will also apply equally to a US regulator's
directions.) But such an act makes a mockery of ICANN's
status as global governance body (for key Internet
resources) becuase it will be forced to undertake its
"global" governance role as per the laws of one country.
This should be unacceptable in the 21st century, from a
global democratic standpoint. It is certainly
unacceptable to non US countries and citizens. Do
remember that this is a violation of the human right to
equally and democratically participate in any form of
governance that one is subject to (paraphrased reading
of Article 21 of the UDHR and its elaboration in the
International Covenant on Civil and Political Rights).
Such changing of its policies and/or implementation of
policies by ICANN as applied to the whole world on the
basis of the laws of one country thus violates the human
right to democratic governance. <br>
<span class="gmail-HOEnZb"><font color="#888888"> <br>
parminder <br>
</font></span>
<div>
<div class="gmail-h5"> <br>
<br>
<br>
<div
class="gmail-m_1924783840843211006moz-cite-prefix">On
Saturday 28 January 2017 12:27 AM, Greg Shatan
wrote:<br>
</div>
</div>
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<div class="gmail-h5">
<div dir="ltr">
<div style="font-family:verdana,sans-serif">All,</div>
<div style="font-family:verdana,sans-serif"><br>
</div>
<div style="font-family:verdana,sans-serif">At
the last meeting of the Jurisdiction Subgroup,
we launched into discussion of the first
hypothetical proposed in Section C of the
"Influence of Jurisdiction" document. As a
result of the discussion, suggestions were
made of ways to revise the hypothetical.
Those are currently marked in the Google doc.</div>
<div style="font-family:verdana,sans-serif"><br>
</div>
<div style="font-family:verdana,sans-serif">Discussion
and analysis of the hypothetical was somewhat
limited on the call, as many participants did
not feel ready to discuss the particular
hypothetical. As a result, it was decided to
circulate this hypothetical and future
hypotheticals (or actual occurrences) well in
advance of the meetings. This allows time for
consideration, preparation, discussion on the
list, etc.</div>
<div style="font-family:verdana,sans-serif"><br>
</div>
<div style="font-family:verdana,sans-serif">The
attached PowerPoint contains Hypothetical #1
(revised as discussed). I've also provided a
format for our answers, along with some
"strawman" answers (most of which already
appear in some form in the Google doc). These
strawman answers are intended to spur
discussion, and should not be taken as final
answers; nor should these answers serve to
limit discussion.</div>
<div style="font-family:verdana,sans-serif"><br>
</div>
<div style="font-family:verdana,sans-serif">I
will put the text into an MS Word doc and a
Google Doc soon. Please begin (or continue)
your consideration of this hypothetical by
replying to this email. </div>
<div style="font-family:verdana,sans-serif"><br>
</div>
<div style="font-family:verdana,sans-serif">Thank
you!</div>
<div style="font-family:verdana,sans-serif"><br>
</div>
<div style="font-family:verdana,sans-serif">Greg</div>
<div style="font-family:verdana,sans-serif"><br>
</div>
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