[Ws2-jurisdiction] Hypothetical #1 for Review and Discussion by Subgroup
parminder
parminder at itforchange.net
Thu Feb 9 07:36:16 UTC 2017
Greg,
Summarily responding to some points that I left out in the previous
email....
On Wednesday 01 February 2017 05:10 AM, Greg Shatan wrote:
> snips
> 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.)
That can be the basis of ICANN's working, as advised by GAC and
adjudicated by a committed body for this purpose.... But do note that US
national interest has major divergences with global public interests as
well as national laws in many countries, especially developing ones, esp
on issues like intellectual property, health, commercial regulation, and
so on. Exsiting international law is a much better basis for ICANN's
functioning (with new laws as needed).
> 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.")
Leaving aside criminal law, as applicable to employees and not an
organisation as such, it is possible for ICANN to work independently of
any country's laws and jurisdictions. Please show a hypothetical to
disprove this premise.
>
> 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.
As argued earlier, not only in principle it is undemocratic (unlike
international law), and would always privilege US national interest over
global public interest (for instance, see US's privacy law and court
pronouncements in this regard), in practice too US law does not
correspond with laws and policy priorities of many countries.
>
> 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.
ICANN_is not_ subject to jurisdiction of other countries is the same way
it is subject to US jurisdiction. Let us accept this fact as a fact, and
it is easily provable. An adverse US court judgement for instance forces
ICANN to change its policies in a global manner. No other jurisdiction
can so force ICANN. It can at the most limit the operation of an ICANN
policy within the concerned territorial area, without impacting its
global reign and impact. We can construct a hypothetical to prove this
-- like, lets say a Kenyan or Singaporean court gives a judgement
against an ICANN policy or policy implementation, what happens then....
And compare it to a similar judgement by a US court.... We would know
the facts easily.
> 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.
I dont see how, say a FDA (US's food and drugs regulator) ruling that
only an FDA approved drug can be given the .med domain name registration
can further ICANN's commitment to uphold global and not just US public
interest. FDA can very easily keep out a drug that is otherwise good,
and, say, widely needed in developing countries, but does not meet US
intellectual property requirements (US frequently mixes the issue of
counterfeit or sub-standard drugs with genuine drugs which may not meet
US IP requirements). One would be much more comfortable with WHO being
the referent agency in this regard than FDA. One would similarly be much
more comfortable with UNESCO's definitions of what can be called as an
educational body than of the US.
>
> 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.
International law would be globally recognised as democratically arrived
at law for global application -- its interposition in an ICANN affair
may be seen as "interference" by some vested interests but that is not
really interference. It is the assertion of rightful law.... We must see
the difference.
>
> 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.
Like the .med example above, there are an unlimited number of concrete
facts here -- I just do not have the time and resources to write up a
whole dossier of them. But hope someone can. Once again an argument
should not get won just by an overwhelming dis-balance of resources
available to one side of it... But if there is will and commitment here
to put all these issues and facts together, we can see how to quickly
assemble a small research team. Otherwise, we all know, with the very
few number of people engaging here, the arguments will just tire out.
>
> Apologies for going on at length. I look forward to your thoughts.
My apologies too for the length, but thought it is important to engage
with all points.
>
> 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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