[Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN

Sat Aug 19 15:28:04 UTC 2017

Dear Parminder

Of course we aren’t inventing the concept of host country agreements.  But those are specific agreements with specific provisions --  Are  you saying that the WIPO agreement in Switzerland is the model for what we should have in the US for ICANN?  If so, say so directly.  If not, then tell me what you think should be in the agreement.  I am happy to stop discussing general propositions it you will – which is why I asked for specifics.  OFAC?  Yes, I understand that.  What else?

Paul

Paul Rosenzweig

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From: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of parminder
Sent: Saturday, August 19, 2017 10:56 AM
To: ws2-jurisdiction at icann.org
Subject: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN

On Saturday 19 August 2017 07:02 PM, Paul Rosenzweig wrote:

Exactly right Raphael.  To cite just a few examples, here are categories of what would be considered public laws in the US from which I assume nobody thinks ICANN should be exempt – criminal law; occupational health and safety law; general public zoning laws relating to urban development.   The list is just a starter …..  

If I’m wrong – if you really do think that ICANN should be exempt from the criminal laws of the countries where it operates – then perhaps you should say so.  I would profoundly disagree, but at least we could discuss substance.

Dear Paul

We are not inventing host country agreements here. This isnt being proposed for the first time. There is well established set of precedents and established practices in this regard. If a WIPO employee, WIPO having judicial immunity in Switzerland, commits a murder in Geneva, or even a financial fraud, everyone knows what to do and what will happen. Lets come out of this contesting elementary and well-established facts. 

And to be clear I assume, as well, that nobody thinks that the ICANN officials and institutions in Istanbul and Singapore and wherever else ICANN has offices should be exempt from Turkish or Singaporean law.  I certainly don’t.  

Yes, not in criminal matters. And as I mentioned in an earlier email, it is possible for ICANN to also seek immunity in these jurisdictions as well. But that is not so important, these offices do not make and implement policy. Respective jurisdictions cannot force them to change ICANN's global policies. Even ifthey foolishly  get into trying such a thing, ICANN can simply close down its office there and shift to another place, without affecting ICANN global work in any way. But not with US gov's actions or orders against ICANN. That is the difference.

parminder 

Paul

Paul Rosenzweig

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From: ws2-jurisdiction-bounces at icann.org <mailto:ws2-jurisdiction-bounces at icann.org>  [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Raphaël BEAUREGARD-LACROIX
Sent: Saturday, August 19, 2017 8:46 AM
To: Thiago Braz Jardim Oliveira  <mailto:thiago.jardim at itamaraty.gov.br> <thiago.jardim at itamaraty.gov.br>
Cc: ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org> 
Subject: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN

Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on. 

Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN less accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example) 

2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim at itamaraty.gov.br <mailto:thiago.jardim at itamaraty.gov.br> >:

Dear All,

It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs).

So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction).

Best,

Thiago

  _____  

De: ws2-jurisdiction-bounces at icann.org <mailto:ws2-jurisdiction-bounces at icann.org>  [ws2-jurisdiction-bounces at icann.org <mailto:ws2-jurisdiction-bounces at icann.org> ] em nome de parminder [parminder at itforchange.net <mailto:parminder at itforchange.net> ]
Enviado: sábado, 19 de agosto de 2017 3:21
Para: ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org> 
Assunto: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN

Lest my response be mis-interpreted, I should clarify that:

The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here). 

In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us.

Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go...

parminder 

On Saturday 19 August 2017 09:56 AM, parminder wrote:

On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote:

Dear Parminder

Can you please provide a list?  That is, can you specify which US laws you wish immunity from under your tailored approach?  And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries?  

Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement..
parminder

Paul

Paul Rosenzweig

 <mailto:paul.rosenzweig at redbranchconsulting.com> paul.rosenzweig at redbranchconsulting.com

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com

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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: Friday, August 18, 2017 2:20 AM
To: Raphaël BEAUREGARD-LACROIX  <mailto:raphael.beauregardlacroix at sciencespo.fr> <raphael.beauregardlacroix at sciencespo.fr>
Cc: ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org> 
Subject: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN

Now for the secons point raised by you. 

On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote:

2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this. 

I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond

"This immunity should be tailored/customised in a manner that ICANN still remains subject to non profit law of the state of California under which it is registered, and its organisational processes function, and other such US laws and institutions that are strictly required for ICANN to be able to satisfactorily carry out its organisational, policy and technical functions (an assessment with respect to which should be undertaken asap)."

Does this not already answer your point? And I also did give a link to an ICANN commissioned report  <https://archive.icann.org/en/psc/corell-24aug06.html> which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act. 

parminder 

2017-08-16 10:36 GMT+02:00 parminder <parminder at itforchange.net <mailto:parminder at itforchange.net> >:

Issue:

Various branches and agencies of the United States of America - from judicial and legislative to executive, including its many regulatory agencies - have exclusive (like no other country's) direct legal remit and power over ICANN, as a US non-profit organisation, with respect to practically every aspect that can conceivably be affected by state power (their range is so enormous that it is vain to begin listing them). These agencies/ y can and do exercise them at any time in pursuance of US law and policies, that have the primary purpose to uphold US public interest and US constitution. Many examples of such powers and their possible use have been given in various public submissions <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire>  to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=/64066898/64948025/ICANN_jurisdiction_questionaire_-_JNC_response-0001.pdf>  , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf> . Since ICANN is supposed to make policies and implement them with regard to the global DNS in the global public interest and not just US public interest, such unilateral availability and use of legal state power with one country, the US, over ICANN is untenable, and goes against basic principles of democracy including of "no legislation/ policy without representation". These principles are recognised by UN instruments as human rights, and most countries today including the US are built over them. 

Proposed solution:

ICANN be granted immunity under the International Organisations Immunities Act of the US. This immunity should be tailored/customised in a manner that ICANN still remains subject to non profit law of the state of California under which it is registered, and its organisational processes function, and other such US laws and institutions that are strictly required for ICANN to be able to satisfactorily carry out its organisational, policy and technical functions (an assessment with respect to which should be undertaken asap).

Additional notes: 

If I may add, this has been "THE" jurisdiction question since the WSIS days if not earlier ( actually since the time ICANN was formed). Whether or not we are able to agree to recommending any solution to this jurisdiction question, it will be an unacceptable travesty of facts and history if this group does not accept this as an important, if not "THE", jurisdiction question in relation to ICANN. 

Whether or not this group is able to contribute to global public interest by making any positive progress on the question of ICANN's jurisdiction, following the principles of good governance and democracy, let it not regress and actually serve to obfuscate what is seen and known as the "ICANN's jurisdiction" question by everyone, by the global public at large. (For instance, in ICANN's own internal discussions like when the ICANN chair commissioned this report  <https://archive.icann.org/en/psc/corell-24aug06.html> on the jurisdiction issue). 

If we can accept that this is a key jurisdiction (even if not "THE") question, but are not able to agree on a proposed solution, let us just write that in our report. But let us not contribute to alt-truth, a very dangerous phenomenon that is often spoke of nowadays. Both as a group, and individually as responsible persons - given an important global political responsibility -- we owe at least that much to ourselves. 

As for myself, and the groups that I work with, we will stand resolutely till the end in the path of any such synthesis of artificial reality - when a global group tasked to address the decades old democratic question of unilateral jurisdiction of one country over the global governance body, ICANN, comes up with a report that asserts that this is not a jurisdiction issue at all, or at least not an important one.  

parminder 

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Raphaël Beauregard-Lacroix 

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