[Ws2-jurisdiction] [CCWG-ACCT] Fwd: ICANN's US jurisdiction
parminder
parminder at itforchange.net
Mon Nov 21 16:52:37 UTC 2016
Erich
I respect your view, but am unable to agree with it... I see no
justification for it whatsoever. BTW I have no academic interest in the
issue, only a very practical and rights based one. I see no reason why
the 'jurisdictional immunity' route that your earlier report proposed
(or sought exploration of) cannot be followed. That would not even need
ICANN to move out of US. As for how community enforcement mechanism will
work, I take that to be a private law issue, an organisational
governance mechanism, which can choose its jurisdiction of adjudication,
which can continue to be the Californian courts.
I believe in democratic accountability, and not just any accountability.
Some accountability to certain interests can in fact be less
accountability for other interests. Lets not depoliticise everything.
This is even more true for developing countries that stand on the other
side of most geo-political contestations, and the differences here are
not just imagined ones. To make a somewhat blunt analogy, it could be
the difference of interests between the rich groups and the
disadvantaged ones.
Let me extend this analogy. Lets suppose there is a body in the city
which provides electricity services to a town. This body has an internal
system of public interest determination (like ICANN board and
committees), and some internal checks and balances (like ICANN's new
community enforcement mechanism). However, it is found useful to have
some external oversight as well. For this purpose, this body accepts the
oversight of flat owners association of the city, which represents the
rich section of the city society. One can argue that some such outer
oversight/accountability is better than no external accountability.
However, in practice, to the more disadvantaged sections of the city
population such oversight/ accountability may be worse than no external
accountability at all -- for reasons that can be easily understood.
Therefore, please do not conflate some just any kind of jurisdiction
with accountability, and make it the justification for continuations of
the status quo. The wrong jurisdiction for me is less rather than more
accountability. If people have a right to be so afraid of the UN that an
international treaty cannot even be mentioned here, even if such a
treaty merely sanctifies ICANN's existing structures, I too have the
right to express my fear of US jurisdiction. I do not accept the 'new
normals' (US is good, UN is bad) that status quo enforces, because in
this case it is patently less fair and justified. Much better outcomes
have arisen from a UN led global governance than US led one -- and I am
here am not even asking for a UN intervention. But I am not ready to
withdraw my right to argue the extreme unfairness of a US ruled global
Internet infrastructure. Democracy is worth saying a few words in favour
of...
parminder
On Monday 21 November 2016 09:22 PM, Schweighofer Erich wrote:
>
> Parminder,
>
>
>
> I agree that we should concentrate on assessing the jurisdictional
> questions of the status quo and possible problems, also for worst-cases.
>
>
>
> Incorporation of ICANN: I am studying it in detail, also in dialogue
> with experts in the Austrian Foreign Ministry. ICANN status is special
> that cannot be fulfilled by other jurisdictions so far. ICANN needs a
> strong seat state supporting its special role (difficult to match the
> USA) and also a legal system willing to interfere in ICANN’s policies
> if accountability requirements are not met. I do not see a seat state
> willing to do that. It would easily destroy its reputation as a
> supporter but also guarantor of the autonomy of the organization (a
> highly relevant concern of any international organization). Thus, it
> is good to study it – from an academic point of view – but also accept
> that it is highly impractical at the moment. As long as the present
> system works, we should keep it – with a b-plan if the present
> arrangement does not work.
>
>
>
> Best, Erich Schweighofer
>
>
>
> *Von:*ws2-jurisdiction-bounces at icann.org
> [mailto:ws2-jurisdiction-bounces at icann.org] *Im Auftrag von *parminder
> *Gesendet:* Montag, 21. November 2016 13:12
> *An:* ws2-jurisdiction at icann.org
> *Betreff:* Re: [Ws2-jurisdiction] [CCWG-ACCT] Fwd: ICANN's US jurisdiction
>
>
>
> All
>
> I myself remain very concerned about the lack of progress by this
> group. However, this wont be addressed by pushing back formulations
> that have been made on at least one of the more important issues on
> the table. Why do not those who consider other issues as important
> come out with clear statement of problem, possible options to solve
> them, and the possible decision points for the group, as some Indian
> groups supported by two of the largest global networks of civil
> society organisations working in the IG area has done for the area of
> 'public law jurisdiction' or jurisdiction of incorporation? Do that
> rather than lament why one set of actors are bring a particular set of
> concerns and likely resolutions to the table.
>
> I see three key areas that this group must deal with
>
> 1. Issue of incorporation of ICANN, or application of US public law on
> ICANN, and its implication on ICANN policy work
>
> 2. Issue of applicable jurisdictions on private law related to ICANN's
> internal working (that would also cover accountability mechanisms) and
> various contracts that it enters into
>
> 3. Issue of application of public law of other countries on ICANN
> where ICANN may have presence
>
> 4. pl add if any
>
> Why does not anyone, or a group here, formulate the issue, the real
> concerns involved, possible options to pursue with regard to
> recommendations that this group can make. That would help us make
> progress.
>
> We can agree to simultaneously move discussion forward on all the
> three above - in three separate threads. Some may quickly be agreed
> to, others may lead to longer discussions. That is the nature of the
> beast... But lets keep moving.
>
> parminder
>
>
>
>
>
> On Tuesday 15 November 2016 08:00 PM, policy at paulmcgrady.com
> <mailto:policy at paulmcgrady.com> wrote:
>
> Pedro,
>
>
>
> Nothing has been discarded beforehand. Parminder's idea of moving
> ICANN out of California (thus deconstructing WS1 Accountability
> mechanisms which are built upon on California law and thus
> nullifying ICANN's CEO's testimony to the US Senate saying it
> wouldn't happen) has been given an enormous amount of attention
> already. In fact, it has been given so much attention that we
> really haven't moved very far along on the real work of this
> group, namely, looking at how ICANN's jurisdiction effects the
> contractual framework that binds ICANN, registries, registrars,
> and registrants together. Not being desirous to endlessly discuss
> a subject to the detriment of all the other subjects we need to
> get to is not the same thing as discarding something beforehand.
> Thanks!
>
>
>
> Best,
>
> Paul
>
>
>
>
>
> -------- Original Message --------
> Subject: Re: [Ws2-jurisdiction] [CCWG-ACCT] Fwd: ICANN's US
> jurisdiction
> From: Pedro Ivo Ferraz da Silva <pedro.ivo at itamaraty.gov.br
> <mailto:pedro.ivo at itamaraty.gov.br>>
> Date: Tue, November 15, 2016 4:37 am
> To: "ws2-jurisdiction at icann.org
> <mailto:ws2-jurisdiction at icann.org>"
> <ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org>>
>
> Dear Parminder,
>
> Thank you very much for this contribution. I believe it raises
> important points about the debate around jurisdiction and
> should therefore be taken to the discussions in the WS2 subgroup.
> Contrary to what has been stated by other colleagues, I
> believe the paper you forwarded brings in new and interesting
> ideas that are worth evaluating, although I would have
> concerns with some of them.
>
> Anyway, my understanding is that we are currently in a problem
> assessment phase, where no possible
> recommendations/alternatives should be discarded beforehand.
>
>
>
> Regards,
>
>
>
> Pedro
>
>
>
>
>
>
>
> Enviado do meu smartphone Samsung Galaxy.
>
>
>
>
>
> -------- Mensagem original --------
>
> De: "Mueller, Milton L" <milton at gatech.edu
> <mailto:milton at gatech.edu>>
>
> Data: 13/11/16 17:59 (GMT-03:00)
>
> Para: policy at paulmcgrady.com <mailto:policy at paulmcgrady.com>,
> parminder <parminder at itforchange.net
> <mailto:parminder at itforchange.net>>, CCWG Accountability
> <accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>>
>
> Assunto: Re: [CCWG-ACCT] Fwd: ICANN's US jurisdiction
>
>
>
> While I don’t support the statement as a whole, I think your
> dismissal is too indiscriminate.
>
>
>
> I, too, would completely reject Parminder’s discredited
> argument that setting rules for a TLD named “pharmacy” will
> result in the global imposition of rules for the entire
> pharmaceutical sector (or book, or beauty parlors, etc.). This
> absurdly exaggerates the influence of TLD registries. Even if
> it were not based on a false assumption, the idea that because
> ICANN is incorporated in the US the rules its policy processes
> and registry operators adopt for these TLDs are somehow
> controlled by the US government is simply false.
>
> I also think that option #1 (incorporating ICANN under
> international law instead of California) was soundly rejected
> in WS1 and in fact is not a feasible or even coherently
> formulated option.
>
>
>
> Option #2, on the other hand, has some merit and certain
> aspects of it are worth considering. I see no fallacy in the
> statement, “With three different jurisdictions over these
> complementary functions, the possibility of any single one
> being … able to interfere in ICANN's global governance role
> will be minimized.” I think this could be considered a prudent
> political risk mitigation strategy. We are not going to change
> ICANN’s place of incorporation, and it is unlikely that we
> will change PTI’s place of incorporation so soon after we have
> stood up the new corporation. But it is not impractical to
> consider jurisdictional diversity the next time the RZM
> contract is renewed. (Note that I am characterizing an
> alternate jurisdiction as a ‘consideration’ and not as a
> ‘requirement.’ And longer term, as PTI matures they might also
> take into consideration the possibility of another
> jurisdiction. The value of this is debatable, given that PTI
> is a subsidiary of ICANN, but the possibility of separation
> was deliberately built into the design of the new
> arrangements. So in any separation process, jurisdictional
> diversity might be taken into account.
>
>
>
> --MM
>
>
>
> *From:*accountability-cross-community-bounces at icann.org
> <mailto:accountability-cross-community-bounces at icann.org>
> [mailto:accountability-cross-community-bounces at icann.org] *On
> Behalf Of *policy at paulmcgrady.com <mailto:policy at paulmcgrady.com>
> *Sent:* Friday, November 11, 2016 9:14 AM
> *To:* parminder <parminder at itforchange.net
> <mailto:parminder at itforchange.net>>; CCWG Accountability
> <accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>>
> *Subject:* Re: [CCWG-ACCT] Fwd: ICANN's US jurisdiction
>
>
>
> Thanks Parminder.
>
>
>
> The attachment you shared seems to be a compilation of some of
> the really terrible ideas which have shown up on this List
> from time to time. Since these terrible ideas have already
> been addressed and addressed and addressed on this List, I'm
> not sure that re-addressing them again at this time would
> prove useful. However, I didn't want anyone to think that
> silence (to the latest round of trying to push for the
> unraveling of WS1) was somehow assent. It isn't. We just
> really have to get on with the real work of this group and
> stop constantly reopening and re-addressing all of these
> fringe ideas.
>
>
>
> Best,
>
> Paul
>
>
>
>
>
> -------- Original Message --------
> Subject: [CCWG-ACCT] Fwd: ICANN's US jurisdiction
> From: parminder <parminder at itforchange.net
> <mailto:parminder at itforchange.net>>
> Date: Tue, November 08, 2016 7:01 pm
> To: CCWG Accountability
> <accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>>
>
> All
>
> I thought this may be relevant to those on this list.
> Regard, parminder
>
>
>
> -------- Forwarded Message --------
>
> *Subject: *
>
>
>
> ICANN's US jurisdiction
>
> *Date: *
>
>
>
> Wed, 9 Nov 2016 07:23:40 +0530
>
> *From: *
>
>
>
> parminder <parminder at itforchange.net>
> <mailto:parminder at itforchange.net>
>
> *To: *
>
>
>
> governance at lists.igcaucus.org
> <mailto:governance at lists.igcaucus.org>
> <governance at lists.igcaucus.org>
> <mailto:governance at lists.igcaucus.org>, BestBitsList
> <bestbits at lists.bestbits.net>
> <mailto:bestbits at lists.bestbits.net>,
> Forum at Justnetcoalition. Org <forum at justnetcoalition.org>
> <mailto:forum at justnetcoalition.org>
>
>
>
> All
>
> As you know, the issue of jurisdiction of ICANN is under
> consideration at ICANN's community process (in the
> accountability track where there is a sub group discussing
> this issue). ICANN is currently meeting in Hyderabad,
> India, from 3rd to 9th November.
>
> Today, on the last day of ICANN's Hyderabad meeting, the
> enclosed statement was issued by key Indian civil society
> organisations engaged with Internet governance issues,
> supported by two key global networks involved in this
> area. The statement expresses the urgent need for
> transiting ICANN from being under the jurisdiction of one
> country, presenting the rationale of why this is important
> to do. It also lists some possible options of doing so,
> towards beginning a serious action-oriented deliberation
> on this very important matter. Unlike what is often
> understood, the jurisdiction issue is not just a matter of
> sovereign prestige and self respect of the states but
> concerns vital matters impacting people's rights. This is
> especially so as the society gets more and more digitised
> in all areas.
>
> We welcome comments and feedback.
>
> The statement has been issued by the following Indian
> civil society organisations.
>
> Centre for Internet and Society <http://cis-india.org/>,
> Bangalore
>
> IT for Change <http://www.itforchange.net/>, Bangalore
>
> Free Software Movement of India
> <https://en.wikipedia.org/wiki/Free_Software_Movement_of_India>,
> Hyderabad
>
> Society for Knowledge Commons
> <http://www.knowledgecommons.in/>, New Delhi
>
> Digital Empowerment Foundation <http://defindia.org/>, New
> Delhi
>
> Delhi Science Forum <http://www.delhiscienceforum.net/>,
> New Delhi
>
> _Software Freedom Law Center India_, New Delhi
>
> Third World Network - India <https://twnetwork.org/>, New
> Delhi
>
>
>
> It is supported by the following global networks:
>
> Association For Progressive Communications
> <https://www.apc.org/>
>
> Just Net Coalition
> <http://justnetcoalition.org/>
>
>
> <http://justnetcoalition.org/>We will soon expand this
> effort to enlist more global support.
>
> Best, Parminder
>
>
> <http://justnetcoalition.org/>
>
>
> <http://justnetcoalition.org/>
>
>
> <http://justnetcoalition.org/>
>
>
> <http://justnetcoalition.org/>
>
> ------------------------------------------------------------------------
>
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