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

Sun Aug 20 10:46:19 UTC 2017

On Sunday 20 August 2017 03:42 PM, Nigel Roberts wrote:
> I see you apologise for my sensitivity to the suggestion I am lying
> but not for making the suggestion itself. I find that really quite
> mealy-mouthed.
>
> I invite you, please, to clearly withdraw the use of the offensive
> word "falsehood" which is clearly outwith the standards of behaviour
> to expected.
>
> It seems to me that either
>
> (a) you meant to suggest that my assessment is inaccurate and/or my
> opinion is incorrect or
>
> (b) you are intentionally stating that I am propagating falsehoods
> (i.e. telling fibs, lies etc).

The former. Falsehood is also simply "an untrue statement".
https://www.merriam-webster.com/dictionary/falsehood

When I said

It is a falsehood that if provided immunity ICANN can "do whatever it
likes"  (It cannot be a lie bec it is not a matter about which you have
some privileged knowledge any more than many/most others)

it is obvious that it is in this sense the term is used.

parminder

>
> Which is it?
>
>
>
>>
>> 1. Falsehood, fib, lie, untruth refer to something untrue or
>> incorrect. A falsehood is a statement that distorts or suppresses the
>> truth, in order to deceive: to tell a falsehood about one's ancestry
>> in order to gain acceptance. A fib denotes a trivial falsehood, and
>> is often used to characterize that which is not strictly true: a
>> polite fib. A lie is a vicious falsehood: to tell a lie about one's
>> neighbor.
>>
>>
>> On 20/08/17 10:34, parminder wrote:
>
>
>
> On 20/08/17 10:34, parminder wrote:
>
> On 20/08/17 10:34, parminder wrote:>
>>
>> On Sunday 20 August 2017 02:24 PM, Nigel Roberts wrote:
>>> Your arguments are starting to be worthy of the level of discourse
>>> currently obtaining in the USA. And I would be reticent at using
>>> defamatory words such as 'falsehood' (a synonum of "lie").
>>
>> It is a falsehood that if provided immunity ICANN can "do whatever it
>> likes", the expression you used. But I apologize if the term offends
>> you.
>>
>> I see below that for ICANN's actions regarding root zone youd like them
>> to be subject to US law. This is what I object to. And herein lies the
>> difference.
>>
>> You want everything to be subject to rule-of-law. I too am a great
>> votary of rule of law. But it seems that it does not matter to you
>> whether the law in a particular case is collectively determined by those
>> who are subject to it or not, or in other words, whether a law is
>> democratic or not. You just want some law that meets your subjective
>> standards (I hear US, Swiss, UK laws mentioned, but alas no poor under
>> developed country! So here we are!), no matter who makes such law, and
>> what kind of polity stands behind it. This is a very technical approach
>> to law, and mine is a democratic approach.... That, is the key
>> difference here, and perhaps is at an ideological level, and thus
>> irreconcilable.
>>
>> But let me know if I misrepresent your views and approach.
>>
>> parminder
>>
>>>
>>> It is my submission and I will not stop "propagating" it (i.e.
>>> advocating for it) simply becuase one person denies it.
>>>
>>> You are setting up a straw man, labelling it ming and then knocking it
>>> down. Nowhere did I refer to immunity being in respect of everything
>>> ICANN does (although that IS the Vienna Convention model in respect of
>>> the missions of foreign states)
>>>
>>> Supposing ICANN (PTI) gets immunity from liability for anything it
>>> does in respect of changes to the IANA database. It will then "be able
>>> to do anything it likes" in terms of redelegations without the
>>> affected parties having recourse to law.
>>>
>>> And as we've seen with .XXX, .AFRICA and more latterly .AMAZON,
>>> sometimes ICANN's internal mechanisms need to be held up to external
>>> account and scrutiny.
>>>
>>> And the second straw man is the myth of parental control. ICANN had
>>> this until last year, by virtue of USG's control of the IANA contract.
>>>
>>> By and large (and there WAS occasional unsatisfactory parenting
>>> behviour) that 'parenting' was one of benign neglect, allowing ICANN
>>> to make its own mistakes and grow.
>>>
>>> But that's gone now. ICANN stands on its own two feet as a
>>> non-govenmental, non-profit organisation, which must be accountable to
>>> the law of whichever land it is established in.
>>>
>>> It happens to be established in the US. I have a number of
>>> reservations about the legal system of the US.
>>>
>>> In the IFWP in 1998-1999 I argued for Geneva but it quickly became
>>> apparent that wasn't going to happen. I would also be very happy with
>>> London or some other jurisdiction that is well developed for (just as
>>> an example) maritime or aviation law.
>>>
>>> But it is where it is. And we are repeating ourselves.
>>>
>>> I submit that ICANN must be within the law of whichever jurisdiction
>>> it operates in and that principle means "no immunity from law".
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> On 20/08/17 09:21, parminder wrote:
>>>>
>>>> On Sunday 20 August 2017 01:14 PM, Nigel Roberts wrote:
>>>>> That's for background information.
>>>>>
>>>>> As you know, all litigation requires huge resources (both financial
>>>>> and human), and that's no different whether it's ICANN or anyone else
>>>>> as Defendant.
>>>>>
>>>>> But providing immunity would allow ICANN "to do whatever it likes".
>>>>
>>>> This is simply not true, it a falsehood and Id appeal to you to stop
>>>> propagating it. Apart from that we should have faith in ICANN's own
>>>> governance model, I have argued repeatedly that immunity for ICANN can
>>>> be tailored precisely so that it largely covers its core functions and
>>>> not just everything that ICANN does. Again referring tothis ICANN
>>>> report
>>>> <https://gnso.icann.org/en/issues/igo-ingo-crp-access-initial-19jan17-en.pdf>
>>>>
>>>>
>>>> where the concept of functional immunity ("immunity concerns
>>>> activities
>>>> immediately or directly related to the performance of tasks
>>>> entrusted to
>>>> the organization"), immunity waivers, etc are discussed in detail,
>>>> although in a somewhat different context.
>>>>
>>>> The report shows how immunity can be tailored to cover largely just
>>>> the
>>>> core functions of an organisation, and the organisation can itself
>>>> waive
>>>> its immunities in many regards.... So, please count your problem
>>>> areas,
>>>> and we can seek immunity waiver in those areas, financial frauds,
>>>> labor
>>>> laws, which ones?
>>>>
>>>> And if it is your case that ICANN's own governance system is
>>>> inadequate
>>>> to even performing its core functions properly, and there is a risk
>>>> that
>>>> it could go rouge even with respect to them, and therefore it needs
>>>> parental guidance/ control from the state of US, that precisely is my
>>>> problem, and not acceptable to me and most of the world. Although I
>>>> remain amazedat your description , as an ICANN insider, of the
>>>> state of
>>>> ICANN governance and responsibility. It is quote worthy.
>>>>
>>>> One would have hoped that in all these years ICANN had evolved a
>>>> governance and accountability system that did not allow it "to do
>>>> whatever it likes" but it seems that your testimony is that this is
>>>> not
>>>> the case, and its need oversight by the US state to check its abuse of
>>>> powers. Pity!
>>>>
>>>> parminder
>>>>
>>>>
>>>>>
>>>>> Not on my watch.
>>>>>
>>>>> On 20/08/17 07:42, parminder wrote:
>>>>>> Nigel
>>>>>>
>>>>>> Your principal contention is that ICANN's own governance processes
>>>>>> are (by your account, pathetically) inadequate to ensure against
>>>>>> rogue behaviour. And yes you have been consistent in making this
>>>>>> argument.
>>>>>>
>>>>>> That surprises me coming for an ICANN insider. One would well ask,
>>>>>> why when a UN body, OECD, WIPO, WTO, and many non profits enjoying
>>>>>> immunities like I have given examples of can resist becoming rogue
>>>>>> cant ICANN too do so? Is all the charade of an unprecedented and
>>>>>> exemplary multistakeholder mode of governance of ICANN really not
>>>>>> working, neither is it workable? And when you guys were presented
>>>>>> with the option of a more accountable membership based model you
>>>>>> guys
>>>>>> rejected it last year. Why so?
>>>>>>
>>>>>> If ICANN's own governance structures are not adequate and proper,
>>>>>> work on them, rather than working against, like in rejecting the
>>>>>> membership model. Dont seek tutelage of undemocratic powers. If
>>>>>> indeed you cant work without oversight, lets devise a good
>>>>>> democratic
>>>>>> method of oversight which is representative of the whole world, and
>>>>>> not just that already most powerful of the countries, the US. No,
>>>>>> this is hegemony, this is abject surrender and subjection. This
>>>>>> is no
>>>>>> way to conduct a global political discourse. Goes back to the nice
>>>>>> old adage: you cant have your cake and eat it -- celebrate ICANN
>>>>>> as a
>>>>>> world beating governance model, and also claim, no it is not
>>>>>> adequate
>>>>>> to stop ICANN from going rogue, and needs parental control. Choose
>>>>>> your side!
>>>>>>
>>>>>> Parminder
>>>>>>
>>>>>> PS: BTW, I dont really understand the below case study you often
>>>>>> hint
>>>>>> at.. It seems that the company went broke bec it could not bring a
>>>>>> suit against ICANN, did not have the resources etc to do so... But
>>>>>> then, I dont see what has changed now, and how would it be any
>>>>>> better
>>>>>> now. Please do be very clear what case are you making.
>>>>>>
>>>>>>
>>>>>> On Sunday 20 August 2017 11:51 AM, Nigel Roberts wrote:
>>>>>>>
>>>>>>> On 20/08/17 04:09, parminder wrote:
>>>>>>>
>>>>>>>>> . And don't you think it would then make ICANN /less
>>>>>>>>> /accountable?
>>>>>>>> Maybe less accountable to US public, but more accountable to the
>>>>>>> global
>>>>>>>
>>>>>>> Well, our organisation is not a part of the US public, but the
>>>>>>> global.
>>>>>>>
>>>>>>> Nonetheless we strongly think that immunity would make ICANN less
>>>>>>> accountable to the global public interest. So we fundamentally
>>>>>>> disagree.
>>>>>>>
>>>>>>> Any form of immunity would once again mean ICANN Board and/or staff
>>>>>>> would return to the approach of the early 2000s when (to use a
>>>>>>> phrase in common use among a number of my colleagues in the ccTLD
>>>>>>> world) "they do whatever they like".
>>>>>>>
>>>>>>> And I have personal knowledge of such things: one company I was
>>>>>>> involved in the very early days of the Internet was directly and
>>>>>>> most seriously affected (the company no longer exists, pretty much
>>>>>>> as a result)  by ICANN acting (we would have said) without any
>>>>>>> proper legal basis in US law. They were, in fact, at the behest
>>>>>>> of a
>>>>>>> **non**US (or "foreign") governmental entity.
>>>>>>>
>>>>>>> At that time ICANN was partially "protected" by being, in effect a
>>>>>>> state actor (i.e. ICANN merely "recommended" certain actions to
>>>>>>> another party, who then acted under US Government contract). The
>>>>>>> affected party was a start-up with limited resources to bring suit
>>>>>>> anyway, irrespective of the Governmental connextion and the company
>>>>>>> consequently had to close down.
>>>>>>>
>>>>>>> Personally I welcome the change to ICANN becoming a purely private
>>>>>>> body (something I've been working for since 1999), and would oppose
>>>>>>> any proposals or suggestion to immunise it.
>>>>>>>
>>>>>>> But you fail to take this reasoned, and reasonable, view into
>>>>>>> account when you repeat your clamour for ICANN to be given one or
>>>>>>> more "get- out-of-gaol-free cards".
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>> On 20/08/17 04:09, parminder wrote:
>>>>>>>
>>>>>>>>> . And don't you think it would then make ICANN /less
>>>>>>>>> /accountable?
>>>>>>>> Maybe less accountable to US public, but more accountable to the
>>>>>>>> global
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>>>>>>
>>>>>>
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