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<p><font face="Verdana">Thanks, John, I respond inline..</font><br>
</p>
<br>
<div class="moz-cite-prefix">On Tuesday 31 October 2017 12:32 PM,
John Laprise wrote:<br>
</div>
<blockquote type="cite"
cite="mid:01dc01d35216$2ad2e9e0$8078bda0$@gmail.com">
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<p class="MsoNormal"><span
style="font-size:12.0pt;font-family:"Garamond",serif;color:#1F497D">Comments
inline</span><span style="color:#1F497D"><o:p></o:p></span></p>
<p class="MsoNormal"><span
style="font-size:12.0pt;font-family:"Garamond",serif;color:#1F497D"><o:p> </o:p></span></p>
<p class="MsoNormal"><span
style="font-size:12.0pt;font-family:"Garamond",serif;color:#1F497D">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.</span></p>
</div>
</blockquote>
<br>
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.. <br>
<br>
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 ... <br>
<br>
<blockquote type="cite"
cite="mid:01dc01d35216$2ad2e9e0$8078bda0$@gmail.com">
<div class="WordSection1">
<p class="MsoNormal"><span
style="font-size:12.0pt;font-family:"Garamond",serif;color:#1F497D">
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.</span><br>
</p>
</div>
</blockquote>
<br>
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.
<br>
<br>
<blockquote type="cite"
cite="mid:01dc01d35216$2ad2e9e0$8078bda0$@gmail.com">
<div class="WordSection1">
<p class="MsoNormal"><span
style="font-size:12.0pt;font-family:"Garamond",serif;color:#1F497D"><o:p><br>
</o:p></span></p>
<p class="MsoNormal"><span
style="font-size:12.0pt;font-family:"Garamond",serif;color:#1F497D">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.</span><br>
</p>
</div>
</blockquote>
<br>
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. <br>
<blockquote type="cite"
cite="mid:01dc01d35216$2ad2e9e0$8078bda0$@gmail.com">
<div class="WordSection1">
<p class="MsoNormal"><span
style="font-size:12.0pt;font-family:"Garamond",serif;color:#1F497D"><o:p> </o:p></span></p>
<p class="MsoNormal"><span
style="font-size:12.0pt;font-family:"Garamond",serif;color:#1F497D">This
is a moot question as obtaining said immunity is simply not
politically feasible at this point in time.</span><br>
</p>
</div>
</blockquote>
<br>
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.<br>
<br>
<blockquote type="cite"
cite="mid:01dc01d35216$2ad2e9e0$8078bda0$@gmail.com">
<div class="WordSection1">
<p class="MsoNormal"><span
style="font-size:12.0pt;font-family:"Garamond",serif;color:#1F497D">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. </span><br>
</p>
</div>
</blockquote>
<br>
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...<br>
<br>
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.<br>
<br>
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.)<br>
<br>
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).<br>
<br>
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....<br>
<br>
<blockquote type="cite"
cite="mid:01dc01d35216$2ad2e9e0$8078bda0$@gmail.com">
<div class="WordSection1">
<p class="MsoNormal"><span
style="font-size:12.0pt;font-family:"Garamond",serif;color:#1F497D">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. </span><br>
</p>
</div>
</blockquote>
<br>
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...<br>
<br>
<blockquote type="cite"
cite="mid:01dc01d35216$2ad2e9e0$8078bda0$@gmail.com">
<div class="WordSection1"><span style="color:#1F497D"><o:p></o:p></span>
<p class="MsoNormal"><span
style="font-size:12.0pt;font-family:"Garamond",serif;color:#1F497D"><o:p> </o:p></span></p>
<p class="MsoNormal"><span
style="font-size:12.0pt;font-family:"Garamond",serif;color:#1F497D">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 _<i>some other</i>_
jurisdiction… This is insufficient.</span><br>
</p>
</div>
</blockquote>
<br>
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.<span style="color:#1F497D"><o:p></o:p></span>
<blockquote type="cite"
cite="mid:01dc01d35216$2ad2e9e0$8078bda0$@gmail.com">
<div class="WordSection1">
<p class="MsoNormal"><span
style="font-size:12.0pt;font-family:"Garamond",serif;color:#1F497D"><o:p> </o:p></span></p>
<p class="MsoNormal"><span
style="font-size:12.0pt;font-family:"Garamond",serif;color:#1F497D">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</span><br>
</p>
</div>
</blockquote>
<br>
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.<br>
<br>
(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. )<br>
<br>
parminder<br>
<blockquote type="cite"
cite="mid:01dc01d35216$2ad2e9e0$8078bda0$@gmail.com">
<div class="WordSection1">
<p class="MsoNormal"><br>
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. <span style="color:#1F497D"><o:p></o:p></span></p>
<p class="MsoNormal"><span
style="font-size:12.0pt;font-family:"Garamond",serif;color:#1F497D"><o:p> </o:p></span></p>
<p class="MsoNormal"><span
style="font-size:12.0pt;font-family:"Garamond",serif;color:#1F497D">No.
I find your speech unbecoming and insulting. If anyone has
cast a shadow, it is you.<o:p></o:p></span></p>
<p class="MsoNormal"><span
style="font-size:12.0pt;font-family:"Garamond",serif;color:#1F497D"><o:p> </o:p></span></p>
<p class="MsoNormal"><span
style="font-size:12.0pt;font-family:"Garamond",serif;color:#1F497D">John
Laprise<o:p></o:p></span></p>
<p class="MsoNormal"><br>
<br>
parminder <br>
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<o:p></o:p></p>
<blockquote style="margin-top:5.0pt;margin-bottom:5.0pt">
<div>
<div>
<p class="MsoNormal">On Fri, Oct 27, 2017, 4:24 PM
parminder <<a href="mailto:parminder@itforchange.net"
moz-do-not-send="true">parminder@itforchange.net</a>>
wrote:<o:p></o:p></p>
</div>
<blockquote style="border:none;border-left:solid #CCCCCC
1.0pt;padding:0in 0in 0in
6.0pt;margin-left:4.8pt;margin-right:0in">
<div>
<p>Greg<o:p></o:p></p>
<p>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.<o:p></o:p></p>
<p>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.<o:p></o:p></p>
<p>(cut paste form the doc begins)<o:p></o:p></p>
<blockquote style="margin-top:5.0pt;margin-bottom:5.0pt">
<ol start="1" type="1">
<li
style="margin-bottom:0in;margin-bottom:.0001pt;mso-list:l0
level1 lfo1">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.<o:p></o:p></li>
<li
style="margin-bottom:0in;margin-bottom:.0001pt;mso-list:l0
level1 lfo1">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).<o:p></o:p></li>
<li
style="margin-bottom:0in;margin-bottom:.0001pt;mso-list:l0
level1 lfo1">An US executive agency like OFAC may
prohibit or limit engagement of ICANN with
entities in specific countries.<o:p></o:p></li>
<li
style="margin-bottom:0in;margin-bottom:.0001pt;mso-list:l0
level1 lfo1">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.<o:p></o:p></li>
<li
style="margin-bottom:0in;margin-bottom:.0001pt;mso-list:l0
level1 lfo1">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.<o:p></o:p></li>
<li
style="margin-bottom:0in;margin-bottom:.0001pt;mso-list:l0
level1 lfo1">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.<o:p></o:p></li>
</ol>
</blockquote>
<p class="MsoNormal" style="margin-bottom:12.0pt">(ENDS)<br>
<br>
This entry with many comments is still visible in this
doc that you developed, <a
href="https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICPzbk/edit"
target="_blank" moz-do-not-send="true">https://docs.google.com/document/d/1_uxN8A5J3iaofnGlr5gYoFVKudgg_DuwDgIuyICPzbk/edit</a>
<br>
<br>
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 <a
href="http://itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf"
target="_blank" moz-do-not-send="true">http://itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf</a>
. 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....<br>
<br>
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. <br>
<br>
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..<br>
<br>
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....<br>
<br>
Look forward to your response<br>
<br>
parminder <br>
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<o:p></o:p></p>
<p><o:p> </o:p></p>
<p><o:p> </o:p></p>
<p>sss<o:p></o:p></p>
<p><o:p> </o:p></p>
<p><o:p> </o:p></p>
<p class="MsoNormal"><o:p> </o:p></p>
</div>
<p class="MsoNormal">_______________________________________________<br>
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href="mailto:Accountability-Cross-Community@icann.org"
target="_blank" moz-do-not-send="true">Accountability-Cross-Community@icann.org</a><br>
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href="https://mm.icann.org/mailman/listinfo/accountability-cross-community"
target="_blank" moz-do-not-send="true">https://mm.icann.org/mailman/listinfo/accountability-cross-community</a><o:p></o:p></p>
</blockquote>
</div>
</blockquote>
<p class="MsoNormal"><o:p> </o:p></p>
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</blockquote>
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