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

[Malcolm Hutty]

On 29/05/2015 05:25, parminder wrote:

> 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,
[...]
> 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.)

Parminder,

The issue of US overreach that you raise is certainly interesting, but
the example you offer, of an Indian drugs company having its goods
seized in international waters, and in Dutch waters, seems to support
the view that changing the location where ICANN is incorporated would be
ineffective as a means of placing ICANN beyond the reach of US law.
If being incorporated in India didn't protect Sun Pharma, why would it
help ICANN?

In any case, I'm not aware of any "domain seizure" order ever having
been granted against ICANN by the US Courts, or any other courts: these
are typically granted against registries or registrars. Again, I fail to
see why changing ICANN's location of incorporation would limit this
practice.

There is a broader reason too why I think we should leave this chimera
of location alone.

Most of us, I believe, are committed to ICANN operating according to the
multistakeholder principle, rather than as an agent of governmental
policy - be that the US government, or any other. I certainly am myself;
the US has repeatedly stated its commitment to this too. I firmly
believe this is only sustainable if ICANN remains strictly within a
limited mission of managing the designated 'unique Internet identifiers'
for the purpose of ensuring their continued effective operation. If
ICANN were to try to abuse its position by leveraging it to gain a
broader regulatory power over users of those identifiers, I am sure this
consensus would break down. That applies equally whether ICANN chose to
use such unwarranted regulatory power to supplement existing national
regulation or (as the Sun Pharma example suggests you might wish) to
reduce or remove laws passed by sovereign powers.

I fear this may not satisfy you, but we don't have it in our power to
'fix' everything, even if we could agree what that would mean. What we
can do is ensure that ICANN can be accountable within the space it is
granted, remains within that space, and can be corrected when it steps
outside. If we achieve this then the multistakeholder approach will be
recognised as an enduring success.

Who knows? If we do succeed in this, perhaps others in other spaces may
seek to follow our example, and adopt for themselves the
multistakeholder model. That is a longer term aspiration you might find
enticing.

Malcolm.
-- 
            Malcolm Hutty | tel: +44 20 7645 3523
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