[Ws2-jurisdiction] Our work so far, and a way forward

[parminder]

Milton,

Thanks for your engagement with these issues. Some responses below.

On Tuesday 11 October 2016 10:21 PM, Mueller, Milton L wrote:
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> 1.      What happens if the concerned  US court holds .xxx to be
> against US's competition law? Describe the steps that will follow, and
> how can ICANN avoid bending its policy making process and authority to
> the will of the US state.
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> MM: I don’t think that’s a problem for ICANN. It’s a problem for the
> entity that was delegated .XXX.  Since XXX holds a tiny sliver of the
> domain name market, even in the porn space, this is a very remote risk.
>

Is there not problem even if .xxx was not a US company owned, which has
no reason to like/ accept being governed by US laws? Milton, when we
frame regimes for rule of law, and of justice, we do not say, well that
is small fry, a small 'sliver of the market', rules and justice has to
be the same for all - small or big. It is  a question of principle --
can US law force ICANN polices, or their operationalisation ? If they
can, as you seem to agree here, it is problem that we must find a
solution to.

Annex 12 says "At this point in the CCWG-Accountability’s work, the main
issues that need to be investigated within Work Stream 2 relate to the
influence that I/*CANN ́s existing jurisdiction may have on the actual
operation of policies */and accountability mechanisms." (emphasis added)

This is directly an issue where ICANN's existing jurisdiction has
influence on actual operation of its policies -- in this case its
policies under which .xxx was delegated.


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> 2.      Same about .africa.
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> Same response.
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Same response from me as well - other than that here, unlike for .xxx,
those who claim the gTLD, and thus will be affected by an adverse
decision of the US court, are parties not belonging to the US and thus
should not be dictated to by US courts.

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> 3.      With 100s of new gTLDs getting operational, many of them
> private closed ones with generic names (but that is hardly the only
> issue, there could be many others), is it not obvious that we will be
> seeing many court cases around them... What would ICANN do the moment
> an adverse judgement comes?
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> See above. Not an issue for ICANN. Most of these court cases are
> between private parties, but even regulations or antitrust actions
> would be directed against the holder of the gTLD, not ICANN. Only if
> ICANN itself were accused of fostering a monopoly would it be the
> target of such litigation.
>

Again, you seem to be fully unaffected by how global parties -
companies, and people - who expect ICANN to be a global governance body
and thus do thing just-fully, and they able to partake equally of the
rights and benefits of a global domain name governance systems are
unable to fulfil this legitimate, and democratic, expectation. If this
means nothing to you, and only such actions that directly affect ICANN's
organisation etc are meaningful, I have not much more to say here... My
principal case is of how ICANN's current jurisdiction affects the global
DNS, its governance, its legitimacy, justfullness, etc -- and not just
now it affects ICANN's organisation.

Perhaps lets separate these two issues then, treat them separately. (1),
impact of ICANN jurisdiction on ICANN's organisation, (2) its impact on
ICANN governance and operation of global DNS, including allocation of
gTLDs/ ccTLDs, and managing the relationship with them.

For the me (2) is by far more important, but if (1) is your focus, we
can consider them both, separately.

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> 4. What if OFAC doesn’t give licence to ICANN for dealing with a
> particular country due to great deterioration of relationships with
> the US.
>
> Now, you have hit on a real issue. I  believe however that NTIA has
> taken some precautions here, but I don’t recall what they are.
>

NTIA's  'precautions'  - even more so, the unrecollected ones :) - are
meaningless for non US people/ businesses who really are looking to get
out of NTIA's 'protection' - isnt that all this oversight transition is
supposed to be about ?
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> 5. What if the FCC revises its decision of forbearance about its
> authority over Internet addressing system (as it did on the issue of
> whether Internet was title one or title two)?
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> MM: This would require legislation, because nothing in the existing
> Communications Act gives the FCC any authority over DNS or IP
> addressing. So this is just another example of “what if the US
> legislates to regulate ICANN in some way?” Which of course is a risk
> if ICANN were in ANY jurisdiction.
>

This is not true -- in the same way as, without any new legislation, FCC
revised its stand on forbearance over seeing Internet as a telecom
utility, and made it title 2. 'Forbearance' has this legal meaning of
legal authority being there but not being exercised -- FCC's chair has
clearly used the term 'forbear' in recent utterances about FCC's
authority over Internet addresses. And in any case, what if as you say
such a thing will require a legislation from the US legislature -- that
is no comfort to non USians/

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> 6. There are almost as many US agencies that can exercise mandate over
> ICANN's domain name policies as there are sectors that the Internet
> and thus its naming system impacts. (ICANN allowed some 'regulatory
> policies' to buyers of .pharmacy, and going forward as it also does
> this with many other sectoral domain names, all of these can be
> challenged, in the courts, as well as with sectoral regulatory
> bodies). What then?
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> MM: These dangers are greatly diminished post-transition.
>

I see now way how the danger of any US executive authority exercising
mandate over ICANN have diminished post transition other than your word
for it..... And then I do not want them diminished (even that they
havent), I want them extinguished. Statutory US bodies need to and will
do whatever they can to further their policies and law, and would order
any US body accordingly - nothing has changed, one may just be imagining
that it has.

>
> If you even begin trying to deal with these questions, you will
> realise what a volcanic earth we are sitting upon, in refusing to see
> the public law jurisdiction issue.
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> MM: Don’t agree we are sitting on a volcano, but do agree there are
> issues that need to be anticipated, a kind of “stress test”
>

Yes, thanks, exactly that. We need to follow through each of these
scenarios to possible logical conclusions - looking at all plausible
ways they can go.

parminder

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