[Ws2-jurisdiction] Hypothetical #1 for Review and Discussion by Subgroup
parminder
parminder at itforchange.net
Thu Feb 9 07:01:16 UTC 2017
On Wednesday 01 February 2017 05:10 AM, Greg Shatan 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).
Greg, thanks for your response. I like the way to stake up various
premises and their relationship with one another. Find my responses below.
>
> 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.
I have no doubt that ICANN should be subject to rule of law (as against
rule by persons). I also agree that it comes even before the premise
that ICANN should be subject to democratic rule of law, but then please
do not entirely forget or ignore the "democratic" part, which your
response unfortunately does. Rule of democratically written law is a
close second to the need for rule of law in the first place. I request
the group to also focus on this part.
I can see three kinds of (rule of) laws that ICANN should be subject to
1. Private law, as would cover ICANN's internal working and its external
private contracts
2. Criminal law, which pertains to fraud and such things
3. Larger regulatory public law, as in areas like anti-trust,
intellectual property, privacy, health, labour etc.
As we have discussed here earlier, category 1 is a matter of choice for
ICANN, and it can stay to be US/ Californian law, or as otherwise agreed
between ICANN and a contracting party.
About category 2, the law of domicile of ICANN would apply, which again
would be US, premised on ICANN staying in the US (which I do not have a
problem with)
This brings us to category 3, which is the real issue here. Most
international organisations do not undertake a directly executing
function, and even if they do it pertains to a narrow sectoral realm and
the corresponding rules are written simultaneously by the concerned
international body. The "Internet sector" however is a cross cutting or
meta one, impacting almost all other sectors. ICANN's policies of
assigning domain names also impact all sectors. This brings it into a
possible relationship with laws of all sectors. Yes, this is somewhat
unique. But as we developed unique global mutistakeholder mechanisms for
management of critical Internet resources, so do we need innovative and
bold approaches to the law and public policy, or jurisdictional, aspect
of Internet's core resources management. But to do with by going forward
rather than backwards on the key principle of public governance, that is
democracy.
In this background, it is not acceptable, as you propose, that ICANN
should be subject to US anti-trust, intellectual property, health,
labor, etc laws (in terms of ICANN's substantive policies and not its
personnel etc as located in the US). National laws are made with
national interest in mind, and US national interest does not fully
overlap with global public interest (as the world's most powerful
country, it does not often even substantially overlap). This is another
important premise that must be followed through. This premise can be
proved in many ways.
What then is the alternative? That is what we must focus upon. ICANN has
a constitutional commitment to follow international agreements. Most
issues related to ICANN policies can be adjudicated with reference to
wisdom existing in these international agreements, which cover most
social sectors. In addition, for areas that ICANN policies may need
clearer legal guidance, the necessary legal principles can be written in
newly made international law. (Tunis Agenda clearly calls for
"development of globally-applicable principles on public policy issues
associated with the coordination and management of critical Internet
resources" para 70.) And to adjudicate based on these international
laws, we need a new global judicial system. Efforts for global judiciary
has been made recently, like in the case of International Criminal Court
.... Internet, as a new, fundamentally global phenomenon is the right
area to go further in this direction. We must come up with creative
thinking for this. For me, some kind of an Internet/ digital bench of
International Court of Justice, specially mandated for this purpose by
an international agreement, appears to be a good solution. But there can
be others.
In the interim, one would expect the ICANN board to work in consonance
with international agreements and laws in various sectors. Since it is a
commitment under its bylaws, this can also be taken to the current
appeals/arbitration processes (which being fundamentally designed for
economic/ civil matters, I find not appropriate as a permanent
arrangement for adjudicating various public law issues). In any case,
GAC is supposed to advice on various public policy matters, and that
should be based on international law, plus ad hoc inter-gov agreement in
GAC over areas of gap.
We should divest ICANN of US jurisdictional control as soon as possible
(which is /now/), as we launch on these globally democratic
institutional developments to take care of public law/ policy aspects of
ICANN's working. In the interim, enough institutional mechanisms exist
for ICANN to address new, unexpected situations in this regard,, with
community mechanisms, GAC, IRP, etc.
parminder
> -- 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
> <mailto: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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