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

Mon Feb 13 18:58:43 UTC 2017

Yes, I refute the proposition because it is an alternate fact.  Or put
another way - it is wrong.

  The true fact is simple - by virture of doing business in France, ICANN is
subject to French law.  France's privacy authorities might, for example,
attempt to get ICANN to follow their right to be forgotten.  They would
fail, I think, but that proposition is no different in kind than the idea of
US antitrust jurisdiction over ICANN which will not change one iota if ICANN
changes its jurisdiction of incorporation.  As I have said before, the only
way in which place of jurisdiction matters significantly (or to use your
words is of a "different order" is regarding law relating to corporate
incorporation and governance.  As to that - e.g. the implementation of
ICANN's actual corporate governance - it would change significantly if ICANN
moved.  But, as others have also noted, the corporate law of California is
vital to ICANN's current structure.

As for your question about my professional life it is amusing - because that
is indeed what I do for a living and I have, in fact, given exactly that
advice to German businesses with operations in the United States.  I tell
them that if they want to avoid American law (mostly law relating to
cybersecurity) the only way to do so is to avoid having a business presence
in the US.  If they want to forgo the market completely they can do so to
avoid American law.  But otherwise they cannot.  And, I tell them the exact
same thing about French and Indian law as well.  In short, I do this for a
living and yes, I say exactly the same thing to paying clients.

It is not me who is "falsifying facts" Paraminder.  You are making
assertions that have no actual basis in any law that I know of.  Repeatedly
asserting them as "facts" does not make them so

Paul

Paul Rosenzweig

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From: parminder [mailto:parminder at itforchange.net] 
Sent: Sunday, February 12, 2017 12:54 AM
To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>;
ws2-jurisdiction at icann.org
Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction

On Saturday 11 February 2017 10:54 PM, Paul Rosenzweig wrote:

As we have repeatedly noted, the exact same thing is true of ICANN's being
subject to the laws of India, France and any other place it does business.  

Paul, and you have missed the repeated response that of course this is not
true (and you know it) -- the implication of jurisdiction of incorporation
of a body, and its impact on its working, is of a completely different order
than that of the jurisdictions where it may merely conduct some business. Do
you refute this proposition? 

Would you in your professional life advice, say, a business incorporated in
Germany but with worldwide business footprint that the application of German
jurisdiction and laws on it -- and the real life implications of such
application -- is more or less the same as application of jurisdiction and
laws of all counties where it may conduct any business at all? I look
forward to a clear and unambiguous response to this. Thanks.

If indeed we are to keep falsifying such basic facts, which everyone knows
well, and base our positions on that, there is no way we can go anywhere
with this sub group. We may as well close it up and let the rapporteur write
whatever report he may want to forward. No use wasting time here in trying
to "prove" and reprove and reprove basic universally known legal and
political facts. 

Your persistence in arguing a strawman Paraminder puts me in mind of Amartya
Sen.

A perceptive book he wrote, but also speaks of Indian humility and
self-deprecation... Wonder why no one ever wrote "The Hegemonic American"...

parminder 

Paul Rosenzweig

 <mailto:paul.rosenzweig at redbranchconsulting.com>
paul.rosenzweig at redbranchconsulting.com

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VOIP: +1 (202) 738-1739

 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com

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From: ws2-jurisdiction-bounces at icann.org
<mailto:ws2-jurisdiction-bounces at icann.org>
[mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of parminder
Sent: Saturday, February 11, 2017 8:46 AM
To: ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org> 
Subject: Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction

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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