[Ws2-jurisdiction] RES: first draft of fact solicitation questions
Nigel Roberts
nigel at channelisles.net
Wed Nov 30 15:38:54 UTC 2016
Kavouss
You seem to think ICANN has some form of statutory immunity.
It doesn't.
It's not subject to ius publicum simply because it is not a state
actor. (Public law being understood to be the branch of law that
governs relationships with state actors). Post-transition it no longer
even has the residual formalism of the contract with the Government for
IANA.
Nigel
PS: For the sake of avoiding argument about wider meaning of 'public
law', ICANN, of course, remains subject to the full panoply of state and
Federal criminal law .. but that applies to everyone, all the time, anyway.
On 30/11/16 15:18, Arasteh wrote:
> Dear All,
> I fully support issues raised by Parminder,Pedro and Avri to a) expand
> questions, to ask the potential difficulties that US jurisdiction
> continue to apply and adding a need for additional jurisdiction as well
> as to properly address the currently ICANN immunity to Public Law as
> exempted by US Immunity Acts
> More over any such questions to outside need to be approved by CCWG
> Regards
> Kavouss
>
> Sent from my iPhone
>
> On 28 Nov 2016, at 22:07, Pedro Ivo Ferraz da Silva
> <pedro.ivo at itamaraty.gov.br <mailto:pedro.ivo at itamaraty.gov.br>> wrote:
>
>> Dear subgroup colleagues,
>>
>>
>>
>> I would like to support Parminder's rewritten question below. I
>> believe it perfectly complies with the general requirement of a
>> evidence based approach and it complements the two original questions
>> since it introduces the element of future likelihood.
>>
>> Our group should not only make recommendations based on
>> problems/issues identified in the past, but also on perceived risks
>> and threats that the current jurisdictional arrangement entails.
>>
>>
>>
>> I also support Mike Rodenbaugh's suggestion to broaden the scope of
>> the questions. I think we should welcome the input of any stakeholder
>> that may have facts and genuine (well-founded) issues to present.
>>
>>
>>
>> Finally, in order to eliminate the possibility of confusion, I would
>> support dividing the document in two sessions: 1. Fact solicitation/
>> 2. Perceived risks
>>
>>
>>
>> Regards,
>>
>>
>>
>> Secretário Pedro Ivo Ferraz da Silva
>>
>> Divisão da Sociedade da Informação (DI)
>>
>> Ministério das Relações Exteriores - Brasil
>>
>> T: + 55 61 2030-6609
>>
>>
>>
>> Secretary Pedro Ivo Ferraz da Silva
>>
>> Division of Information Society (DI)
>>
>> Ministry of External Relations - Brazil
>>
>> T: + 55 61 2030-6609
>>
>>
>>
>>
>>
>> *De:*ws2-jurisdiction-bounces at icann.org
>> <mailto:ws2-jurisdiction-bounces at icann.org>
>> [mailto:ws2-jurisdiction-bounces at icann.org] *Em nome de *parminder
>> *Enviada em:* domingo, 27 de novembro de 2016 04:34
>> *Para:* ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org>
>> *Assunto:* Re: [Ws2-jurisdiction] first draft of fact solicitation
>> questions
>>
>>
>>
>>
>>
>>
>>
>> On Saturday 26 November 2016 08:23 PM, avri doria wrote:
>>
>> Hi,
>>
>>
>>
>> I am among those who would like to see a question included along the
>>
>> lines Parminder suggests. It should, however, be made by specific
>>
>> reference to existing laws that could be used to interfere with ICANN's
>>
>> ability to provide service to customers in other countries.
>>
>>
>> I think that Avri's proposal would be a good way to go about it, as
>> long as we do not the circumscribe the inquiry too much. I would
>> prefer a general question, plus a specific component, like
>>
>> What do you think are the problems, if any, with continued
>> jurisdiction of the US state over ICANN, as a US non-profit? Please
>> justify your response with appropriate examples, analysis, etc.
>> Especially, please indicate if there are existing and past instances
>> that highlight such problems. Also, in terms of future likelihood,
>> please mention specific institutions/ laws etc of the US state that
>> could be used to interfere with ICANN's ability to provide global
>> governance services to all people of the world, including in non US
>> countries.
>>
>> (Pl note that I have replaced the last part on services to customers
>> in other countries to global gov services to all people.)
>>
>>
>>
>> While I strongly support keeping the incorporation in CA in the US
>> because the yet to tested accountability process depends on that,
>>
>>
>> I am happy to support a separate exercise seeking expert opinion on
>> whether accountability process does or does not pertain to private law
>> which can choose its own jurisdiction of adjudication (as most private
>> contracts can), irrespective of whether ICANN is subject to US public
>> laws or not, as having immunity from them, whether on basis of an
>> international law incorporation of US state granted immunity under the
>> mentioned immunity laws of the US. In this manner, to ascertain
>> whether ICANN's new accountability mechanism can or cannot still be
>> adjudicated upon by Californian law/ courts, on the basis of making
>> the necessary provision in ICANN's bylaws.
>>
>>
>> I also
>> support an effort to look for immunity from laws that affect ICANN
>> ability to serve clients internationally - be they governments,
>> companies or individuals. This immunity should be restricted to ICANN
>> performance of its mission in relation to international entities and
>> _not_ relate to contract law, labor law or local ordinances on garbage
>> pickup.
>>
>>
>> Of course, that is exactly what is sought. And that is possible in my
>> view to do with immunity under the US immunity provisions.
>>
>> I do not think that this immunity can be gained in the WS2 timeframe,
>> but I do believe that WS2 could initiate yet another CCWG effort to work
>> on that, if the consensus of the group were to do so.
>>
>> The purpose of the WS2 is to make recommendations and for ICANN to
>> begin action on that basis. That can be done in a few months, if
>> agreed to.. It is not about necessarily completing the process within
>> WS2 time frame. If WS2 does not give this rec, and passes it on to
>> WS3, the same problem will arise; if we would not have begun working
>> on it, immunity cannot be gained within any WS# time period as well,
>> which then becomes an infinite process .....
>>
>> Let us be very clear; if we are working on immunity from US under
>> relevant current provisions of US law, we can only recommend, as the
>> wish of the world community. It if of course for the US state to act
>> on it or not. But I would find it extremely strange for us not to
>> arrive at a rec which in our view if what preserves the global public
>> interest best, and is quite possible/ practical to do, just because we
>> begin second guessing whether US state will actually do it, and if so,
>> in what time frame. That I do not think if the job of this group or of
>> CCWG as a whole.
>>
>>
>> But first we need more of the background information, the so-called
>> facts. We have to remember that with NTIA oversight, the application of
>> some laws may have been different than it might be going forward. We
>> need to understand whether that is the case or not, and whether there
>> are laws that could now be applied to ICANN's activities that were not
>> applied before.
>>
>>
>> Yes I agree. This is a kind of investigation that is needed.
>> Meanwhile, let me add, and I think this is what Avri is already
>> alluding to, as now being not under a US gov contract/ oversight,
>> ICANN in fact , in one way, may be more exposed to the full power of
>> all laws and institutions of the US state than before. It is now just
>> another private organisation.
>>
>> parminder
>>
>>
>>
>> avri
>>
>>
>>
>> On 26-Nov-16 05:08, parminder wrote:
>>
>>
>>
>>
>>
>>
>>
>> On Saturday 26 November 2016 01:55 PM, Mueller, Milton L wrote:
>>
>>
>>
>> Sorry, Parminder, I see this as a request for opinions, not facts.
>>
>> The whole point of this exercise is to gain specific factual cases
>>
>> that show actual issues, not to provide people with an excuse to
>>
>> complain about what the “think are the problems.” I would reject
>>
>> adding such a question to the list
>>
>>
>>
>>
>>
>> Milton, you probably mean, you are against adding such a question :).
>>
>> I dont see you have any authority to reject anything any more than I
>>
>> have to reject your original formulation.
>>
>>
>>
>> Was not the community accountability mechanism instituted just on the
>>
>> basis of "what people think are the problems"? I saw no efforts to
>>
>> gather facts with surveys like
>>
>>
>>
>> "1. Are you aware of any instance in which anyone's business,
>>
>> privacy, or ability to use or purchase DNS-related services, has been
>>
>> affected by absence of a community accountability mechanism ?
>>
>>
>>
>> If any such known 'facts' exist I am unaware of them and will like to
>>
>> know.
>>
>>
>>
>> In case of the question of ICANN's jurisdiction of incorporation
>>
>> analytical facts are rather more evident, as raised in the civil
>>
>> society statement.
>>
>>
>>
>> The process we employ can lead towards certain kind of outcomes rather
>>
>> than others. And I see this particular process being aimed at
>>
>> foreclosing the jurisdiction of incorporation question. This is fact
>>
>> the "application of public laws question" because immunity from such
>>
>> application can be obtained even without changing ICANN's place of
>>
>> jurisdiction.
>>
>>
>>
>> Meaning ICANN can stay incorporated as US non profit in California,
>>
>> and it exempted from application form various public laws as per the
>>
>> US immunity act that I cited. I also said that, as far as I can
>>
>> understand, it is possible to keep the private disputes arising from
>>
>> ICANN's organisational system, including those about enforcement of
>>
>> community powers, to be subject to US/ Californian law, strictly only
>>
>> for such dispute resolution as per ICANN bylaws. We need to hear from
>>
>> this group why this is not possible or not preferred...
>>
>>
>>
>> parminder
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> *From:*ws2-jurisdiction-bounces at icann.org
>> <mailto:ws2-jurisdiction-bounces at icann.org>
>>
>> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of *parminder
>>
>> *Sent:* Wednesday, November 23, 2016 11:54 PM
>>
>> *To:* ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org>
>>
>> *Subject:* Re: [Ws2-jurisdiction] first draft of fact solicitation
>>
>> questions
>>
>>
>>
>>
>>
>>
>>
>> I will like to add a general question to the below:
>>
>>
>>
>> What do you think are the problems, if any, with continued
>>
>> jurisdiction of the US state over ICANN, as a US non-profit? Please
>>
>> justify your response with appropriate examples, analysis, etc.
>>
>> Especially, if there are existing and past instances that highlight
>>
>> such problems please indicate them.
>>
>>
>>
>> parminder
>>
>>
>>
>>
>>
>>
>>
>> On Wednesday 23 November 2016 09:50 PM, Mike Rodenbaugh wrote:
>>
>>
>>
>> These seem well-stated, except perhaps they should not be looking
>>
>> only for personal experience, but broaden the request to seek any
>>
>> experience the responder is aware of? So I suggest something like:
>>
>>
>>
>>
>>
>>
>>
>> 1. Are you aware of any instance in which anyone's
>>
>> business, privacy, or ability to use or purchase DNS-related
>>
>> services, has been affected by ICANN's jurisdiction in any way?
>>
>>
>>
>> If the answer is Yes, please describe specific cases or
>>
>> incidents, including the date, the parties involved, and links to
>>
>> any relevant documents.
>>
>>
>>
>> 2. Are you aware of any instance in which ICANN's
>>
>> jurisdiction affected any dispute resolution process or
>>
>> litigation related to domain names?
>>
>>
>>
>> If the answer is Yes, please describe specific cases or
>>
>> incidents, including the date, the parties involved, and links to
>>
>> any relevant documents.
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> Mike Rodenbaugh
>>
>>
>>
>> RODENBAUGH LAW
>>
>>
>>
>> tel/fax: +1.415.738.8087
>>
>>
>>
>> http://rodenbaugh.com
>>
>>
>>
>>
>>
>>
>>
>> On Wed, Nov 23, 2016 at 6:47 AM, Mueller, Milton L
>>
>> <milton at gatech.edu <mailto:milton at gatech.edu> <mailto:milton at gatech.edu> <mailto:milton at gatech.edu>> wrote:
>>
>>
>>
>> CW and I have agreed on the following draft:
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> *Request for stakeholder input on jurisdiction issues*
>>
>>
>>
>>
>>
>>
>>
>> The Jurisdiction subgroup of the CCWG Accountability is
>>
>> asking for the community to provide factual input on the
>>
>> following questions:
>>
>>
>>
>>
>>
>>
>>
>> 1. Has your business, your privacy or your ability to
>>
>> use or purchase DNS-related services, been affected by
>>
>> ICANN's jurisdiction in any way?
>>
>>
>>
>> If the answer is Yes, please describe specific cases or
>>
>> incidents, including the date, the parties involved, and
>>
>> links to any relevant documents.
>>
>>
>>
>>
>>
>>
>>
>> 2. Has ICANN's jurisdiction affected any dispute
>>
>> resolution process or litigation related to domain names you
>>
>> have been involved in?
>>
>>
>>
>> If the answer is Yes, please describe specific cases or
>>
>> incidents, including the date, the parties involved, and
>>
>> links to any relevant documents.
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> Dr. Milton L. Mueller
>>
>>
>>
>> Professor, School of Public Policy
>>
>>
>>
>> Georgia Institute of Technology
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
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>>
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>>
>>
>>
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