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<p><font face="Verdana">Nigel,</font></p>
<p><font face="Verdana">Thanks for your views. One gets faced by two
kinds of arguments in favour of keeping the jurisdictional
status quo</font> -- which are mutually exclusive.</p>
<p>(1) ICANN is somehow not subject to the whole range of US law and
executive powers, as any other US organisations is - or at least
it is somehow felt that US law and executive power will never
apply itself over ICANN functioning. <br>
</p>
<p>(2) As you argue, ICANN is indeed subject to all US laws and
powers, which might indeed be applied over it as necessary, but
this is a good and a desirable thing. <br>
</p>
<p>As we have no move forward at all, we must do it in stages and
remove some arguments off the table which we can mutually agree to
be untenable. So can we now agree that the view (1) above is
simply untrue and naively held by those who forward it. <br>
</p>
<p>We can now move to (2). First of all, this means that indeed US
law and executive can impinge upon ICANN's policy implementation
whenever it feels it valid to do so in pursuance of legitimate US
public interest. Meaning, If ICANN makes a policy and does its
implementation which is not in-accordance with US law or
legitimate US executive will, they can "interfere" can cause those
actions to be rolled back on the pain of state's coercive action.
This can be for instance regarding how and what medicines and
health related activities are considered ok by the concerned US
regulator. (Similar examples can be thought of in practically
every sector). Are you with me till here, because I think I am
only making logical deduction over what you seem to agree with?</p>
<p>If so, this indeed establishes as a fact that US jurisdiction
can, as required, impinge upon (which seen from another vantage is
same as, interfere with) ICANN policies and policy implementation.</p>
<p>Which makes the entire exercise of our questionnaire seeking
whether it can so happen rather needless. It of course can. <br>
</p>
<p>Lets then not argue or fight over that terrain, where we have
this agreement, about how law and executive power operates vis a
vis organisations subject to their jurisdiction. <br>
</p>
<p>That brings us to another terrain - that, as you argue, and
others have here, that it is right, appropriate and needed that US
law and legitimate executive power impinges upon ICANN functioning
as and when required, becuase it is important to subject
everything to the rule of law (and in your and many other people's
views, ICANN can practically ONLY be subject to rule of US's law).</p>
<p>I am happy to discuss this part as long as we do not keep
drifting back to the earlier one whereby there really seems to be
an agreement among most of us that US law and legitimate executive
power can indeed impinge upon or "interfere with" ICANN's policy
or policy implementation work (even if many consider such
interference as being good for ICANN and public interest) . <br>
</p>
Your only problem with immunity seem to come up with regard to
criminally fraudulent activities. You give the examples of IOC and
FIFA but I have not found they having any special criminal
immunities. I may not have looked up well, but did they? Were they
not finally raided by both Swiss and US authorities. On the other
hand there are many international organisations with legal
immunities that have been gooing great global public interest work
without corruption. Interpol hasnt started to take money to make
international warrants disappear, not, more humbly, the
International Fertilizers Development Centre, immunised under the
relevant US Act, and which enters into contracts worth millions
every years for globally distributed projects, has been known to do
so....<br>
<br>
(FIFA and IOC become corrupt because of commercial thinking
completely overpowering public service ethics -- and if ICANN
becomes so it will also be ore likely becuase of this reason. But et
us not get distracted. )<br>
<br>
And if indeed we are so concerned about ICANN's abuse of power and
possible frauds and corruption, we should have let a stronger and
more agile community accountability mechanism get established, like
the membership based one, and with lower thresholds of triggering
community action... That is where the mistake was made, and can
still be corrected down the line. Do not throw the world at the
mercy of US law and executive action for this purpose, especially
when it related to to an infrastructure which today underpins almost
every social system. This is not just some sports. (No hurt intended
to sports fans, I being one.)<br>
<br>
parminder<br>
<br>
<br>
<br>
<br>
<div class="moz-cite-prefix">On Saturday 11 February 2017 02:16 PM,
Nigel Roberts wrote:<br>
</div>
<blockquote
cite="mid:e86245cd-5734-47b8-1554-f562b84ef7b8@channelisles.net"
type="cite">
<br>
<blockquote type="cite">and innumerable others. In the
circumstances, the real waiver across all
<br>
sectors and laws would be seek immunity under the US
International
<br>
Organisations Immunity Act. Would you not prefer this route? If
not, why
<br>
so?
<br>
</blockquote>
<br>
Because I do not want ICANN to have immunity.
<br>
<br>
I have been involved in this community since before it was called
'ICANN', including the gTLD-MoU and the IFWP.
<br>
<br>
I have seen ICANN behave as an autocrat robber baron and deprive
people of their property.
<br>
<br>
Fortunately, we have made great strides since then.
<br>
<br>
Accountability work, between 2003 (in the case of ccTLDs) up to
last years' transition, as well as the fact that, both staff and
Board now have personal trust, that was totally absent 15 years
ago.
<br>
<br>
But both organisations and personnnel can change.
<br>
<br>
Institutional immunity leads to corruption. I do not want ICANN to
become a FIFA, or IOC.
<br>
<br>
And the recent .AFRICA case shows, the checks and balances of the
US judicial system appear to work reasonably well (I personally
remain uneasy about the covenant of immunity but I expect you have
no problem with that).
<br>
<br>
I trust this explains why some people - and I am one - may have a
diametrically opposed view to yours when it comes to ICANN
immunity.
<br>
<br>
<br>
<br>
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<br>
</blockquote>
<br>
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