[Ws2-jurisdiction] Hypothetical #1 for Review and Discussion by Subgroup

[Greg Shatan]

All,

Hypothetical #1 will be discussed at tomorrow's subgroup call.  I will post
this as a Google doc in a couple of hours, but please review this email
thread, and add to it if possible, before tomorrow's call.

Greg


*Greg Shatan *C: 917-816-6428
S: gsshatan
gregshatanipc at gmail.com

On Tue, Jan 31, 2017 at 6:40 PM, Greg Shatan <gregshatanipc at gmail.com>
wrote:

> Thanks for your views, Parminder.
>
> I'll look forward to everyone's responses to the hypothetical, the
> strawman responses, Parminder's response, and any other responses.  If you
> are a participant in this group, it really behooves you to jump into this
> discussion.
>
> I won't reply to Parminder's specific response; I'd rather that other
> members do that.  However, I have a couple of "big picture" observations
> that I'd like to share, and see if people think there is merit in them (or
> not).
>
> I think there's an overarching premise or presumption that's being missed
> here.  That is the presumption that ICANN should be subject to the rule of
> law; more specifically, that ICANN should be subject to antitrust laws and
> intellectual property laws and privacy laws and health laws and labor laws
> and civil rights laws and anti-corruption laws, etc., etc. -- all of the
> laws that make up a body of national law. As far as I know, these are laws
> that exist at a national level.  There are treaties and conventions
> designed to harmonize the laws of different nations (and to deal with
> differences between those laws), but these are not in themselves laws that
> would apply to any entity.
>
> It's my understanding that there is no "international law" that would
> impose these types of laws, or indeed the rule of law, on any entity such
> as ICANN.  As such, it's my understanding that there is no "international
> law" that ICANN can be moved to.
>
> On the other hand the treaties and conventions generally bring the laws of
> the signatory nations into fairly close harmony or at least coordination.
> As a result, the relevant laws of one signatory are not terribly different
> than that of another.  Taking treaties, conventions, legal history, etc.,
> all together, there is a fairly well-harmonized web of laws of different
> nations at the national level.  (There are of course areas where there are
> greater differences, and even the smaller differences are not
> indistinguishable.)
>
> As mentioned above, the premise is that ICANN should be subject to the
> rule of law, and to the types of laws that exist at a national level.
> Further, that adherence to these laws is overall, a positive influence on
> keeping ICANN accountable and allowing ICANN to set and operate its
> policies.  Thus, ICANN needs to be subject to the laws of some country.
> I'd be interested to see how comfortable (or uncomfortable) members of the
> subgroup are with that premise.  (As a side note, this seems incompatible
> with the idea of "immunity.")
>
> A further premise that implements the prior premise is that US law is a
> reasonable set of laws to be used for that purpose, and that US courts are
> reasonable venues for the resolution of disputes involving ICANN.  More
> specifically, given the mandate of this Subgroup, the premise is that US
> law and courts are reasonably well suited to keeping ICANN accountable, and
> for the operation of ICANN's policies.  I'd be interested to see how
> comfortable (or uncomfortable) members of the subgroup are with this
> premise.
>
> ICANN is, of course, subject to the laws of a number of other
> jurisdictions where it has a presence, and may be subject to litigation in
> those jurisdictions, but we can put that aside for the moment. Similarly,
> there may be other jurisdictions that are also reasonable for such use, and
> each would have their trade-offs with any other.  But, unless we identify
> intractable problems with accountability or ICANN's ability to operate, I'm
> not sure whether that's relevant.
>
> In looking at US law (or any other applicable national law), we would need
> to consider whether these laws are likely to interfere with efforts
> (including those of the multistakeholder community) to hold ICANN
> accountable, or with ICANN's ability to set and implement its policies.  On
> the other hand, we would also need to consider whether these laws are
> likely to protect (and even enhance) efforts to hold ICANN accountable
> (including multistakeholder efforts), and to protect ICANN's ability to set
> and implement its policies.
>
> In the abstract, without citing any law or any ICANN policy or action, one
> could postulate that some national law could interfere with ICANN's
> accountability or operation of policies.  That would be true of any set of
> laws (even "international laws").  The converse would also be true (that
> some national law could protect ICANN's accountability or operation of
> policies).  As such, it doesn't seem helpful (in my view) to operate at
> that level of abstraction.
>
> Rather, I think it's more helpful to deal with concrete facts -- actual
> experiences and specific hypotheticals grounded in fact (specific laws,
> specific actions, etc.).  We are making efforts in that direction.  The
> review of ICANN's litigation is one such effort.  This effort should give
> us useful data on the extent to which US law has been protective of, or
> interfered with, ICANN's accountability or operation of policies.  Our
> questionnaire is another such effort.
>
> Apologies for going on at length.  I look forward to your thoughts.
>
> Greg
>
>
>
>
>
> On Tue, Jan 31, 2017 at 12:27 PM, parminder <parminder at itforchange.net>
> wrote:
>
>> Dear Greg
>>
>> Thanks for your document with the hypothetical # 1 and its "Initial
>> strawman responses" which I understand are just to spur a discussion.
>>
>> First of all I must mention that I consider this hypothetical question as
>> the most important one that we are faced with.
>>
>> Next, I will comment on the strawman responses, before I propose my own
>> response to the hypothetical.
>>
>> The strawman responses are premised on considerations that (1) ICANN
>> already works in manner that is observant of (the whole gamut of) US law,
>> (2) a rightful court judgement would simply further attune ICANN to US law,
>> including changing its practices and policies accordingly in the future.
>>
>> These two considerations are taken in the "strawman responses" to be
>> good, positive things. Herein lies the crux of the jurisdiction issue, and
>> the nature of main difference between who support the status quo and those
>> who call for changes that ensures release of ICANN from US jurisdiction.
>>
>> Those supporting status quo seem to see nothing wrong with ICANN working
>> and adjusting its policies to the full range of US law, whether about
>> foreign sanctions or anti trust or intellectual property, or privacy, or
>> health or other sectoral laws and regulation (including legitimate orders
>> of regulatory agencies like FTC, FCC, FDA, and so on). But that is
>> precisely the problem for the rest of us. As I said a few times here, in
>> democracy, there can be "no legislation/ regulation without
>> representation". That is the key issue here. And this can only be resolved
>> by either moving ICANN to international law or at least get for it
>> jurisdictional immunity under US International Organisations Immunities Act
>> .
>>
>> Now let me provide my response to the hypothetical # 1, which is
>>
>> In the following hypothetical, What are the influences of ICANN’s
>> existing jurisdiction(s) relating to resolution of disputes (i.e.,
>> governing law and venue) on (1) the actual operation of ICANN’s policies,
>> (2) accountability mechanisms and (3) the resolution of disputes?
>>
>> A plaintiff initiates litigation, challenging ICANN's actions (or
>> inactions) involving actual operation of its policies – like delegation of
>> a gTLD, and/or acceptance of certain terms of registry operation, on the
>> basis that plaintiff (or a class including plaintiff) would be injured and
>> that ICANN’s actions or inactions are in violation of law. The court finds
>> that ICANN’s actions or inaction violate the law and issues an order
>> requiring ICANN to change its actions.
>>
>> My response
>>
>> Following such an adverse decision, ICANN will have no option other than
>> to change its policies and/ or operation of its policies as per the court's
>> directions. (This will also apply equally to a US regulator's directions.)
>> But such an act makes a mockery of ICANN's status as global governance body
>> (for key Internet resources) becuase it will be forced to undertake its
>> "global" governance role as per the laws of one country. This should be
>> unacceptable in the 21st century, from a global democratic standpoint. It
>> is certainly unacceptable to non US countries and citizens. Do remember
>> that this is a violation of the human right to equally and democratically
>> participate in any form of governance that one is subject to (paraphrased
>> reading of Article 21 of the UDHR and its elaboration in the International
>> Covenant on Civil  and Political Rights). Such changing of its policies
>> and/or implementation of policies by ICANN as applied to the whole world on
>> the basis of the laws of one country thus violates the human right to
>> democratic governance.
>>
>> parminder
>>
>>
>>
>> On Saturday 28 January 2017 12:27 AM, Greg Shatan wrote:
>>
>> All,
>>
>> At the last meeting of the Jurisdiction Subgroup, we launched into
>> discussion of the first hypothetical proposed in Section C of the
>> "Influence of Jurisdiction" document.  As a result of the discussion,
>> suggestions were made of ways to revise the hypothetical.  Those are
>> currently marked in the Google doc.
>>
>> Discussion and analysis of the hypothetical was somewhat limited on the
>> call, as many participants did not feel ready to discuss the particular
>> hypothetical.  As a result, it was decided to circulate this hypothetical
>> and future hypotheticals (or actual occurrences) well in advance of the
>> meetings.  This allows time for consideration, preparation, discussion on
>> the list, etc.
>>
>> The attached PowerPoint contains Hypothetical #1 (revised as discussed).
>> I've also provided a format for our answers, along with some "strawman"
>> answers (most of which already appear in some form in the Google doc).
>> These strawman answers are intended to spur discussion, and should not be
>> taken as final answers; nor should these answers serve to limit discussion.
>>
>> I will put the text into an MS Word doc and a Google Doc soon.  Please
>> begin (or continue) your consideration of this hypothetical by replying to
>> this email.
>>
>> Thank you!
>>
>> Greg
>>
>>
>>
>>
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