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

Sat Aug 19 17:04:32 UTC 2017

Apologies, Thiago.  Saturday brain sleep – you obviously represent the Government of Brazil, not America 😊

Paul Rosenzweig

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From: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Paul Rosenzweig
Sent: Saturday, August 19, 2017 11:26 AM
To: 'Thiago Braz Jardim Oliveira' <thiago.jardim at itamaraty.gov.br>; ws2-jurisdiction at icann.org
Subject: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN

Dear Thiago

Unlike you (who are representing the US government) I have no clients and no interests in this matter other than an interest in seeing that ICANN is accountable.  Immunity is generically at odds with accountability.

That is why I keep asking – immunity from what?  For which activities?  Parminder has now agreed that criminal activities are not going to be subject to immunity.  We can add that to the list (along with California corporate law).  But I still don’t know which laws you or anyone else wants to be immune from (except, I guess the OFAC regulations)

Paul

Paul Rosenzweig

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From: Thiago Braz Jardim Oliveira [mailto:thiago.jardim at itamaraty.gov.br] 
Sent: Saturday, August 19, 2017 10:58 AM
To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com <mailto:paul.rosenzweig at redbranchconsulting.com> >; ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org> 
Subject: RES: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN

Dear Paul,

You don't have to apologise. I understand you are a an apt lawyer defending your own interests, which are legitimate but certainly different to the public interest. Also, nothing that you said contradicts my point. About the case you mention, I hope you noticed that the arrest of a Google executive, a Brazilian national, only happened because he was physically present in his country's territory. Further, without condoning or condemning that measure, this was what was left for a country to try and force compliance on the part of a reluctant US-based company with the laws of the place where it provided services. But that was without success, precisely because the company was based in a foreign country - the US -, which was the only one with the necessary jurisdiction to compel the specific performance on the party of the company and which motivated the arrest you mention.

Best,

Thiago

  _____  

De: Paul Rosenzweig [paul.rosenzweig at redbranchconsulting.com]
Enviado: sábado, 19 de agosto de 2017 10:35
Para: Thiago Braz Jardim Oliveira; ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org> 
Assunto: RE: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN

Sorry Thiago, but as I’ve said before, I think this is wrong.  EXCEPT for issues relating to corporate statues (which parminder has already said should not be addressed) every country where ICANN operates does have equal de jure right to exercise jurisdiction (consistent with its own national law) and express its own national interests.  That’s why, for example, Brazil arrested a Google executive for failing to comply with Brazilian legal requirements (http://www.nytimes.com/2012/09/26/business/global/top-google-executive-in-brazil-faces-arrest-over-video.html?mcubz=3).   Personally, I think that was a mistake by the Brazilian government, but I cannot and would not deny its legal right to do as it did.

Paul

Paul Rosenzweig

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

O: +1 (202) 547-0660

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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 Thiago Braz Jardim Oliveira
Sent: Saturday, August 19, 2017 8:04 AM
To: ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org> 
Subject: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN

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] em nome de parminder [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

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 <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 

Sciences Po Law School 2014-2017

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