<html>
<head>
<meta content="text/html; charset=utf-8" http-equiv="Content-Type">
</head>
<body bgcolor="#FFFFFF" text="#000000">
<p><font face="Verdana">Greg, <br>
</font></p>
<p><font face="Verdana">Summarily responding to some points that I
left out in the previous email....</font><br>
</p>
<br>
<div class="moz-cite-prefix">On Wednesday 01 February 2017 05:10 AM,
Greg Shatan wrote:<br>
</div>
<blockquote
cite="mid:CA+aOHURKY_48-LMo+Hp6Or0=+QJN588gec-93si91wRaU=SxKg@mail.gmail.com"
type="cite">
<div dir="ltr">snips
<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>
</blockquote>
<br>
That can be the basis of ICANN's working, as advised by GAC and
adjudicated by a committed body for this purpose.... But do note
that US national interest has major divergences with global public
interests as well as national laws in many countries, especially
developing ones, esp on issues like intellectual property, health,
commercial regulation, and so on. Exsiting international law is a
much better basis for ICANN's functioning (with new laws as needed).
<br>
<br>
<blockquote
cite="mid:CA+aOHURKY_48-LMo+Hp6Or0=+QJN588gec-93si91wRaU=SxKg@mail.gmail.com"
type="cite">
<div dir="ltr">
<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>
</blockquote>
<br>
Leaving aside criminal law, as applicable to employees and not an
organisation as such, it is possible for ICANN to work independently
of any country's laws and jurisdictions. Please show a hypothetical
to disprove this premise. <br>
<br>
<blockquote
cite="mid:CA+aOHURKY_48-LMo+Hp6Or0=+QJN588gec-93si91wRaU=SxKg@mail.gmail.com"
type="cite">
<div dir="ltr">
<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. <br>
</div>
</div>
</blockquote>
<br>
As argued earlier, not only in principle it is undemocratic (unlike
international law), and would always privilege US national interest
over global public interest (for instance, see US's privacy law and
court pronouncements in this regard), in practice too US law does
not correspond with laws and policy priorities of many countries. <br>
<br>
<blockquote
cite="mid:CA+aOHURKY_48-LMo+Hp6Or0=+QJN588gec-93si91wRaU=SxKg@mail.gmail.com"
type="cite">
<div dir="ltr">
<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. </div>
</div>
</blockquote>
<br>
ICANN<u> is not</u> subject to jurisdiction of other countries is
the same way it is subject to US jurisdiction. Let us accept this
fact as a fact, and it is easily provable. An adverse US court
judgement for instance forces ICANN to change its policies in a
global manner. No other jurisdiction can so force ICANN. It can at
the most limit the operation of an ICANN policy within the concerned
territorial area, without impacting its global reign and impact. We
can construct a hypothetical to prove this -- like, lets say a
Kenyan or Singaporean court gives a judgement against an ICANN
policy or policy implementation, what happens then.... And compare
it to a similar judgement by a US court.... We would know the facts
easily. <br>
<br>
<blockquote
cite="mid:CA+aOHURKY_48-LMo+Hp6Or0=+QJN588gec-93si91wRaU=SxKg@mail.gmail.com"
type="cite">
<div dir="ltr">
<div class="gmail_default"
style="font-family:verdana,sans-serif">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>
</blockquote>
<br>
I dont see how, say a FDA (US's food and drugs regulator) ruling
that only an FDA approved drug can be given the .med domain name
registration can further ICANN's commitment to uphold global and not
just US public interest. FDA can very easily keep out a drug that is
otherwise good, and, say, widely needed in developing countries, but
does not meet US intellectual property requirements (US frequently
mixes the issue of counterfeit or sub-standard drugs with genuine
drugs which may not meet US IP requirements). One would be much more
comfortable with WHO being the referent agency in this regard than
FDA. One would similarly be much more comfortable with UNESCO's
definitions of what can be called as an educational body than of the
US. <br>
<br>
<blockquote
cite="mid:CA+aOHURKY_48-LMo+Hp6Or0=+QJN588gec-93si91wRaU=SxKg@mail.gmail.com"
type="cite">
<div dir="ltr">
<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>
</blockquote>
<br>
International law would be globally recognised as democratically
arrived at law for global application -- its interposition in an
ICANN affair may be seen as "interference" by some vested interests
but that is not really interference. It is the assertion of rightful
law.... We must see the difference. <br>
<br>
<blockquote
cite="mid:CA+aOHURKY_48-LMo+Hp6Or0=+QJN588gec-93si91wRaU=SxKg@mail.gmail.com"
type="cite">
<div dir="ltr">
<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>
</blockquote>
<br>
Like the .med example above, there are an unlimited number of
concrete facts here -- I just do not have the time and resources to
write up a whole dossier of them. But hope someone can. Once again
an argument should not get won just by an overwhelming dis-balance
of resources available to one side of it... But if there is will
and commitment here to put all these issues and facts together, we
can see how to quickly assemble a small research team. Otherwise, we
all know, with the very few number of people engaging here, the
arguments will just tire out. <br>
<br>
<blockquote
cite="mid:CA+aOHURKY_48-LMo+Hp6Or0=+QJN588gec-93si91wRaU=SxKg@mail.gmail.com"
type="cite">
<div dir="ltr">
<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>
</blockquote>
<br>
My apologies too for the length, but thought it is important to
engage with all points. <br>
<blockquote
cite="mid:CA+aOHURKY_48-LMo+Hp6Or0=+QJN588gec-93si91wRaU=SxKg@mail.gmail.com"
type="cite">
<div dir="ltr">
<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>
</div>
<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
0.8ex;border-left:1px solid
rgb(204,204,204);padding-left:1ex">
<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>
</div>
<blockquote type="cite">
<div>
<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>
<div style="font-family:verdana,sans-serif"><br>
</div>
</div>
<br>
<fieldset
class="gmail-m_1924783840843211006mimeAttachmentHeader"></fieldset>
<br>
</div>
</div>
<span class="gmail-">
<pre>______________________________<wbr>_________________
Ws2-jurisdiction mailing list
<a moz-do-not-send="true" class="gmail-m_1924783840843211006moz-txt-link-abbreviated" href="mailto:Ws2-jurisdiction@icann.org" target="_blank">Ws2-jurisdiction@icann.org</a>
<a moz-do-not-send="true" class="gmail-m_1924783840843211006moz-txt-link-freetext" href="https://mm.icann.org/mailman/listinfo/ws2-jurisdiction" target="_blank">https://mm.icann.org/mailman/<wbr>listinfo/ws2-jurisdiction</a>
</pre>
</span></blockquote>
</div>
______________________________<wbr>_________________
Ws2-jurisdiction mailing list
<a moz-do-not-send="true" href="mailto:Ws2-jurisdiction@icann.org">Ws2-jurisdiction@icann.org</a>
<a moz-do-not-send="true" href="https://mm.icann.org/mailman/listinfo/ws2-jurisdiction" rel="noreferrer" target="_blank">https://mm.icann.org/mailman/<wbr>listinfo/ws2-jurisdiction</a>
</blockquote></div>
</div></div>
</blockquote>
</body></html>