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

Wed Aug 30 18:50:24 UTC 2017

Translation: "No I cannot."

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: Wednesday, August 30, 2017 7:54 AM
To: ws2-jurisdiction at icann.org
Subject: Re: [Ws2-jurisdiction] [EXTERNAL] Re: Issue: US's courts' judicial
writ over all aspects of ICANN

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] 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_GRlaq8Mo8
TjDmrxdYahOP8WDDkMr4k&m=8TIH8TteuvkkYq6CySpUDsb-rFI-WPDqQStlF4NiiBo&s=ng0bED
piuJb18V4iMwJMA0HArPdpsdPFUEfcZW8cfGw&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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