[Ws2-jurisdiction] [EXTERNAL] Re: Issue: US's courts' judicial writ over all aspects of ICANN

Wed Aug 30 12:47:42 UTC 2017

In support of my contention that ICANN needs to remain esubject to the 
Rule of Law, I offer not "inferred threats" but demonstrated historic 
behaviour.

"That was then, this is now" is not a suitable constitutional protection.

Simply becuase no agency of the UK or US government is seeking to 
re-establish the Divine Right of Kings does not mean that our respective 
constitutions should not continue to be based on the separation of 
powers and the rule of law.

It's the same with ICANN.

I repeat again, neither I nor a number of my colleagues will permit 
ICANN to again ever assert that it has ultimate power over us, and/or 
that it must be immune from the consequences of its actions.

On 30/08/17 13:27, Raphaël BEAUREGARD-LACROIX wrote:
> Parminder,
>
> Your mode of argumentation (in all the threads you are involved in at
> the moment) relies on you requesting that anyone who disagrees with you
> disproves your statements.
>
> You have refused over and over to substantiate the various state of
> things you are alleging: various types of encroachment by the US
> government, chilling effects, etc.
>
> It is my understanding that the way we work here is that if you want to
> push for an issue and eventually a recommendation, you have to /prove
> /what you are asserting. Just asserting that your points are valid
> because we cannot disprove them does not lead us anywhere in respect of
> the work that we have to do.
>
> As was discussed in the last call (of which you may read the transcript)
> some were of the opinion that keeping to a step-by-step and pragmatic
> approach in our recommendations was better than bold requests,
> especially if the only thing there is in support of these requests is
> "inferred" threats.
>
>
> 2017-08-30 13:53 GMT+02:00 parminder <parminder at itforchange.net
> <mailto:parminder at itforchange.net>>:
>
>
>
>     On Tuesday 29 August 2017 12:19 AM, Burr, Becky via Ws2-jurisdiction
>     wrote:
>>     I don’t think that ICANN’s decision to comply with applicable law
>>     – in the US or in any country in which it operates – is the
>>     product of a chilling effect.
>
>     Yes, it is general acceptance of law, if not the fear of it.... When
>     the law is illegitimate, as when one country's law is applicable
>     wrongly to a global gov process, the same, otherwise legitimate fear
>     of law, is called "chilling effect". Both legitimate fear of law and
>     chilling effect do the same thing, it stops certain behaviour and
>     encourages others.
>
>>      Can you give an example where you believe ICANN has refrained
>>     from the "legitimate exercise of natural and legal rights by the
>>     threat of legal sanction”?
>
>     The whole meaning of chilling effect is that is it generalised, not
>     obvious and apparent, but strongly there. For instance, can you
>     provide me an instance of when a person "did not" undertake certain
>     road behaviour because of existence of traffic laws... Such
>     negatives are difficult to instantiate, and are supposed to be
>     inferred...
>
>     parminder
>>
>>
>>     *J. Beckwith Burr****
>>     **Neustar, Inc.***/**Deputy General Counsel & Chief Privacy Officer
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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
>>     <mailto:ws2-jurisdiction-bounces at icann.org>] *On Behalf Of *parminder
>>     *Sent:* Sunday, August 27, 2017 10:31 PM
>>     *To:* ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org>
>>     *Subject:* [Ws2-jurisdiction] Issue: US's courts' judicial writ
>>     over all aspects of ICANN____
>>
>>     __ __
>>
>>     Issue____
>>
>>     As a US based entity, ICANN is subject to full range of US laws.
>>     Almost any US court can take up for its judicial consideration
>>     whether ICANN works within each of such applicable law or not.
>>     This brings up a high likelihood that any time in the future ICANN
>>     will have to change under US courts' directions its actions taken
>>     in pursuance of its global governance function of developing
>>     global DNS related policies and implementing them. This is
>>     obviously undemocratic and inappropriate that one country's law
>>     and its court decide what a global governance body like ICANN will
>>     or will not do.____
>>
>>     Further, it is not only a matter of a court actually finding legal
>>     fault with an ICANN action and forcing to change it. Knowing that
>>     ICANN is subject to the full range of US public law, ICANN would
>>     always take care to keep its actions with them (as it has no doubt
>>     done till now). This is what is called as the "chilling effect
>>     <https://urldefense.proofpoint.com/v2/url?u=https-3A__en.wikipedia.org_wiki_Chilling-5Feffect&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=8TIH8TteuvkkYq6CySpUDsb-rFI-WPDqQStlF4NiiBo&s=ng0bEDpiuJb18V4iMwJMA0HArPdpsdPFUEfcZW8cfGw&e=>".
>>     This phenomenon which is already in existence with ICANN's
>>     actions, since its inception, is undemocratic and illegitimate
>>     from the point of view of the non US people, since they did not
>>     participate in making the US laws, and the laws they may have
>>     actually developed may even be in contradiction to US law on a
>>     particular subject. This phenomenon therefore leads to denial of
>>     democratic rights to non US citizens. ____
>>
>>     Solution:____
>>
>>     Any given court would not heed to any pleadings about ICANN being
>>     special as a global governance organisation, and should be treated
>>     as such. Neither is the court legally supposed to do, under the US
>>     constitution and laws. The only solution there is a general
>>     immunity under the US International Organisations Immunities Act,
>>     with proper customisation and exceptions for ICANN to enable to be
>>     able to perform its organisational activities from within the US.
>>     The chief exception I understand would be the application of
>>     California non profit law.  ____
>>
>>     __ __
>>
>>     __ __
>>
>>
>>
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>
> --
> Raphaël Beauregard-Lacroix
> LinkedIn
> <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/>-
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