[Ws2-jurisdiction] Blog post on ICANN's jurisdiction

[parminder]

On Saturday 21 January 2017 02:58 AM, farzaneh badii wrote:
> All,
>
> Here is a blog post on ICANN's jurisdiction and sanctions.
>  http://www.internetgovernance.org/2017/01/13/icanns-jurisdiction-sanctions-and-domain-names/
>
> I have raised some of the issues before but the blog post is more
> consolidated. Hope it is useful for the work of this group.

Dear Farzaneh,

Thanks for this meticulous and useful work.

I have two comments to offer. Firstly, OFAC are just one kinds of
sanctions that outside entities may be faced with. There could be other
kinds related to commercial issues, like intellectual property, that
businesses of other countries can face in the US, whether arising from a
court order or that of an executive/ regulatory agency.

Here is an example
<http://www.business-standard.com/article/companies/dutch-customs-seize-indian-drugs-in-transit-industry-frets-112012300081_1.html>
of an EU government seizing, on US request, generic drugs being exported
from India to Brazil. While this dispute is at the WTO, there is no
question that if a US organisation (including non profit) were in any
way helping or facilitating such a trade between India and US it will be
forced to withdraw help/ facilitation by a US court or executive agency.
Lets now assume that the hypothetical Indian exporter had a gTLD 
.genericdrugs which domain space was employed inter alia to facilitate
its global business. The US law, through courts or executive agencies,
would easily come in to disable it if it can - and it indeed can through
its jurisdictional oversight over ICANN.

Now we come to the crucial part of what are the solutions that we may have.

You suggest that ICANN gets some kind of a general OFAC waiver. Firstly,
as described above there are many other ways and basis for interference
by the US government with the DNS beyond OFAC . Therefore we will need
to get intellectual property violation waiver, lottery activity waiver,
and innumerable others. In the circumstances, the real waiver across all
sectors and laws would be seek immunity under the US International
Organisations Immunity Act. Would you not prefer this route? If not, why
so?

Secondly, no waiver is permanent, as we can very well judge from the
Trump's administration's various activities. US is a democracy, and
people have a right to change their governments, and the government have
the right to change policies and laws. That would happen all the time.
And we must act as if changes will happen rather than that they wont.
Yes, even immunity under the mentioned US Act can be rolled back, and
therefore international law and incorporation is the only real solution.
However, to withdraw statutory immunity is so much more difficult. Plus
there would be time, if this is attempted, for ICANN to even seek to
make "alternative arrangements" outside the US.

parminder


>
> Best 
>
> Farzaneh
>
>
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