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

[parminder]

Nigel,

Thanks for your views. One gets faced by two kinds of arguments in
favour of keeping the jurisdictional status quo -- which are mutually
exclusive.

(1) ICANN is somehow not subject to the whole range of US law and
executive powers, as any other US organisations is - or at least it is
somehow felt that US law and executive power will never apply itself
over ICANN functioning.

(2) As you argue, ICANN is indeed subject to all US laws and powers,
which might indeed be applied over it as necessary, but this is a good
and a desirable thing.

As we have no move forward at all, we must do it in stages and remove
some arguments off the table which we can mutually agree to be
untenable. So can we now agree that the view (1) above is simply untrue
and naively held by those who forward it.

We can now move to (2). First of all, this means that indeed US law and
executive can impinge upon ICANN's policy implementation whenever it
feels it valid to do so in pursuance of legitimate US public interest.
Meaning, If ICANN makes a policy and does its implementation which is
not in-accordance with US law or legitimate US executive will, they can
"interfere" can cause those actions to be rolled back on the pain of
state's coercive action. This can be for instance regarding how and what
medicines and health related activities are considered ok by the
concerned US regulator. (Similar examples can be thought of in
practically every sector). Are you with me till here, because I think I
am only making logical deduction over what you seem to agree with?

If so, this indeed establishes as a fact that US jurisdiction can, as
required, impinge upon (which seen from another vantage is same as,
interfere with) ICANN policies and policy implementation.

Which makes the entire exercise of our questionnaire seeking whether it
can so happen rather needless. It of course can.

Lets then not argue or fight over that terrain, where we have this
agreement, about how law and executive power operates vis a vis
organisations subject to their jurisdiction.

That brings us to another terrain - that, as you argue, and others have
here, that it is right, appropriate and needed that US law and
legitimate executive power impinges upon ICANN functioning as and when
required, becuase it is important to subject everything to the rule of
law (and in your and many other people's views, ICANN can practically
ONLY be subject to rule of US's law).

I am happy to discuss this part as long as we do not keep drifting back
to the earlier one whereby there really seems to be an agreement among
most of us that US law and legitimate executive power can indeed impinge
upon or "interfere with" ICANN's policy or policy implementation work
(even if many consider such interference as being good for ICANN and
public interest) .

Your only problem with immunity seem to come up with regard to
criminally fraudulent activities. You give the examples of IOC and FIFA
but I have not found they having any special criminal immunities. I may
not have looked up well, but did they? Were they not finally raided by
both Swiss and US authorities. On the other hand there are many
international organisations with legal immunities that have been gooing
great global public interest work without corruption. Interpol hasnt
started to take money to make international warrants disappear, not,
more humbly, the International Fertilizers Development Centre, immunised
under the relevant US Act, and which enters into contracts worth
millions every years for globally distributed projects, has been known
to do so....

(FIFA and IOC become corrupt because of commercial thinking completely
overpowering public service ethics -- and if ICANN becomes so it will
also be ore likely becuase of this reason. But et us not get distracted. )

And if indeed we are so concerned about ICANN's abuse of power and
possible frauds and corruption, we should have let a stronger and more
agile community accountability mechanism get established, like the
membership based one, and with lower thresholds of triggering community
action... That is where the mistake was made, and can still be corrected
down the line. Do not throw the world at the mercy of US law and
executive action for this purpose, especially when it related to to an
infrastructure which today underpins almost every social system. This is
not just some sports. (No hurt intended to sports fans, I being one.)

parminder




On Saturday 11 February 2017 02:16 PM, Nigel Roberts wrote:
>
>> 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?
>
> Because I do not want ICANN to have immunity.
>
> I have been involved in this community since before it was called
> 'ICANN', including the gTLD-MoU and the IFWP.
>
> I have seen ICANN behave as an autocrat robber baron and deprive
> people of their property.
>
> Fortunately, we have made great strides since then.
>
> Accountability work, between 2003 (in the case of ccTLDs) up to last
> years' transition, as well as the fact that, both staff and Board now
> have personal trust, that was totally absent 15 years ago.
>
> But both organisations and personnnel can change.
>
> Institutional immunity leads to corruption. I do not want ICANN to
> become a FIFA, or IOC.
>
> And the recent .AFRICA case shows, the checks and balances of the US
> judicial system appear to work reasonably well (I personally remain
> uneasy about the covenant of immunity but I expect you have no problem
> with that).
>
> I trust this explains why some people - and I am one - may have a
> diametrically opposed view to yours when it comes to ICANN immunity.
>
>
>
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>

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