[CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission

Fri May 29 04:25:57 UTC 2015

On Friday 29 May 2015 01:08 AM, Steve DelBianco wrote:
>> ....SNIP....

>> 6. The Board refuses to act, citing, again, that it believes the
>> action is outside of ICANN’s mission
>> 7. After the necessary community votes etc., the community now heads
>> to court. In the State of California.
>
>     As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board. 
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>     Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making.
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>     If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission. 
>
>     Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever.
>

Simply out of curiosity, since there seems to be deep concern about the
rights of the US courts to be able to determine whether a ICANN decision
serves public interest or not:

Is it not the fact that whether the rules of ICANN make a provision for
the 'community' ( a misnomer, we mean SOACs system, but whatever) to
take matters to the courts or not, there are a thousand ways that US
citizens (and perhaps sometimes even non citizens) can directly take an
ICANN decision to US courts to meet the tests of pubic interest as
determined by US laws and the constitution. What about that? If this
concern of 'US court/ law's interference' is real, one has to find ways
to confront this undeniable reality of the automatic US courts'
jurisdiction over all acts of ICANN, whatever ICANN rules and bylaws may
say or not. I do not understand why the group has consistently refused
to look at this elephant in the room, while investing so thoroughly in
thrashing out the minute details without resolving clear higher level
issues.

One need not even provide a scenario, put let me try it - entirely
hypothetical at this stage, but extreme plausible. Sun Pharmaceuticals
is an Indian generic drugs company, one of the world's largest, and
providing drugs to most developing countries, at a fraction of the
prices that patented drug equivalents are available for . There is a lot
of literature on how Indian generic drug industry has helped fight and
stabilise the AIDS calamity in Africa, and also many with regard to
other diseases all over the world. Meanwhile, US pharma industry with
the backing of the US government has employed all possible means
including those that are suspect from an international law point of view
to thwart and weaken the Indian generic drugs industry for reasons which
are obvious -- including getting seized in international waters and
neutral protected global shipping lanes supplies being shipped between
two developing countries in both of which the transaction is perfectly
legal (There is the famous case of supplies being exported from India to
Brazil being seized off Netherlands's coast on US gov's behest.)  ...
Just to give an idea of how 'tense' things are in this area.

Now, extending the hypothetical, lets say that Sun Pharma gets for
itself a gtld .Sunpharma (which btw if they ask me I'd advice them not
to bec of obvious dangers as clear from the following).. and meanwhile
extends its global business to online platforms, which is kind of the
normal direction that everything would go.  .Sunpharma then becomes or
denotes the digital space where the company does much of its global
business, including management of company's global affairs and so on.

Meanwhile, one or the other flare up happens, as routinely does, and the
US pharma industry cries foul over certain global commerce activities of
Sun Pharma.... We are in 2025 and everything is so digitalised and
networked and so on, that the 'Sunpharma online space has become basic
to SunPharma's international operations (which it has a right to do  -
meaning get to own and leverage a global online space under its own name
and a trade name name derived gtld). US pharma approaches US courts and
seeks seizing of .Sunpharma as this asset is made available and
controlled from within the US jurisdiction; and the court agrees and
accordingly directs ICANN.... The global DNS system practically
unravels, at least its global legitimacy does... 

We know that US courts have many times been approached to seize domain
names that are owned by outside groups and largely work outside the US,
and on many different kinds of grounds as well. This is common knowledge
and I will not try to begin providing examples.  And this right of such
seizures or to otherwise being able to judge the public interest nature
of ICANN's work lies not only with the US courts but also some executive
agencies like the Office of Foreign Assets Control, and I am sure there
must be many more. I had earlier asked this particular stress test to be
applied but for no clear reasons it never is. If we can cherry pick our
stress tests, they really are not stress tests, whatever other purpose
they might serve.

There is simply no solution to the problem of letting US courts and
US's  empowered executive agencies routinely judge and enforce their
will wrt the public interest impact of ICANN's global governance
activities than to incorporate ICANN under international law and get
corresponding immunity from US domestic law. I repeat, there is simply
no other way. Period.

Therefore if we indeed are worried about the role and authority of US
courts vis a vis ICANN's global governance activities, lets be
consistent. I have held back commenting here, because I see that the two
key framing issues of accountability - accountability to which
community/ public, and the issue of jurisdiction - have simply been
sidestepped, and in default there is no meaning to thrashing out minute
details.

However, when I read about concerns on how depending on whether
something is written in ICANN rules or not US courts will exercise power
over it, I could not stop myself from once again pointing to the
elephant in the room  which is the automatic power of US courts over
anything ICAAN whichever way you write the latter's rule book. It does
appear funny for people to be working out the minutiae of the quality of
waterproofing of the window glass of the ICANN ship when there is a
unattended big hole in the hull, which tickled me enough to write this
note...

Hopefully it may be of some use... parminder
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