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

[Mueller, Milton L]

Parminder
I have not responded to this because it seems to me that your comments are based on a very extensive misunderstanding of the whole jurisdiction issue and I don’t have time to wade through them all. In a nutshell, you repeatedly mistake the jurisdiction in which a registry is incorporated with the jurisdiction in which ICANN is headquartered and therefore conclude erroneously that US law has an overwhelming influence on the policies. To give but one example, all domain seizures of .com domains have occurred because Verisign is a US company not because ICANN is a California corp. Changing or retaining ICANN’s current jurisdictional situation would not change anything in this regard.

I also think this has been pointed out to you before but you’ve ignored it. So not willing to go into it more,

Dr. Milton L Mueller
Professor, School of Public Policy<http://spp.gatech.edu/>
Georgia Institute of Technology
Internet Governance Project
http://internetgovernance.org/



From: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of parminder
Sent: Sunday, October 16, 2016 2:21 AM
To: ws2-jurisdiction at icann.org
Subject: Re: [Ws2-jurisdiction] Our work so far, and a way forward


An important scenario that I forgot to list earlier, though I have been discussing it variously, is as follows:

US customs has, over the years, been very active seizing domain names of business they see as offending US intellectual property law,, even for businesses that mostly operated outside of the US. And since most businesses have been .com they went to .com registry to effect these seizures - .rojadirecta is a well known case.

What happens when many global businesses take up gTLDs in their names - and I keep giving the hypothetical example of an Indian generic drug company, Generic Drugs, with a hypothetical gTLD .genericdrugs ... A gTLD can only be seized by ICANN, and I see no reason that US customs will no similarly force ICANN to do what they were previously getting done through Verisign. (If you dont think so, please show me reason/ justification.) In the circumstances, Generic Drugs,

(1) should either not take a gTLD, which is a denial of its right to leverage the global DNS as other global businesses are doing, and thus not acceptable,

or

(2) it should begin observing US laws even with regard to its global and national business outside the US (where US companies may be in competition with it), which is even less acceptable as US's continued jurisdiction over ICANN gets used to extend US laws globally (something already being done by many other means, and strongly resented globally)

I took an drugs company example,  but it could be a company in any other area, as all sectors get networked, digitalised, data-fied, and so on, and therefore their digital avatar, space and digital space signifiers (domain names) become central to their businesses. It could be an education company -- say a company that provides digital books to visually disabled. A global treaty recently got signed on this issue with against much resistance from the US, and it is still to be ratifed by the US and there are many powerful voices inside the US opposed to such ratification. Would such a company have to ever remain on tenterhooks about what US gov could do to its gTLD? This is how power really operates - it does not always have to act out, its presence is enough, and such thingd would see US excercise illegitimate political power over the whole world.

It could be an increasingly digitised/ data-fied media company, an agriculture company, a transport company -- anyone!!

Do these issues appear trivial to anyone? If not, what is their resolution?

parminder

On Sunday 16 October 2016 11:24 AM, parminder wrote:

Milton,

Thanks for your engagement with these issues . Some responses below.
On Tuesday 11 October 2016 10:21 PM, Mueller, Milton L wrote:



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.

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 ICANN ́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.





2.      Same about .africa.

Same response.

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.




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?

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.



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 ?


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)?



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/



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?



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.



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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