[Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Nigel Roberts
nigel at channelisles.net
Tue Feb 14 10:44:14 UTC 2017
I think you miss the point about immunity.
It's means "ICANN can do what it likes and can't be sued".
On 14/02/17 09:23, Seun Ojedeji wrote:
> Hi,
>
> I am not a lawyer but it doesn't sound accurate to say that the effect
> of the country of (US) on ICANN is same with that of other
> countries (including the ones hosting her regional hubs) because that is
> what I think Paul may be implying here.
>
> As a simple example is a Trump travel Ban and the OFAC stuff compared to
> if a travel Ban is placed on Turkey where ICANN has a hub. The former
> would have global effects on ICANN than the latter. I for one would be
> glad if there can be immunity/exemption for ICANN(used in literary
> terms) in such scenarios
>
> Regards
>
> Sent from my LG G4
> Kindly excuse brevity and typos
>
> On Feb 13, 2017 7:59 PM, "Paul Rosenzweig"
> <paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>> wrote:
>
> 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____
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>____
>
> O: +1 (202) 547-0660 <tel:+1%20202-547-0660>____
>
> M: +1 (202) 329-9650 <tel:+1%20202-329-9650>____
>
> VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739>____
>
> www.redbranchconsulting.com <http://www.redbranchconsulting.com/>____
>
> My PGP Key:
> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
> <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>____
>
> __ __
>
> *From:*parminder [mailto:parminder at itforchange.net
> <mailto:parminder at itforchange.net>]
> *Sent:* Sunday, February 12, 2017 12:54 AM
> *To:* Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>>;
> ws2-jurisdiction at icann.org <mailto: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____
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>____
>
> O: +1 (202) 547-0660 <tel:+1%20202-547-0660>____
>
> M: +1 (202) 329-9650 <tel:+1%20202-329-9650>____
>
> VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739>____
>
> www.redbranchconsulting.com
> <http://www.redbranchconsulting.com/>____
>
> My PGP Key:
> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
> <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>____
>
> ____
>
> *From:*ws2-jurisdiction-bounces at icann.org
> <mailto: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) . ____
> > of the country of (US) on ICANN is same with that of other
> countries (including the ones hosting her regional hubs) because that is
> what I think Paul may be implying here.
>
> As a simple example is a Trump travel Ban and the OFAC stuff compared to
> if a travel Ban is placed on Turkey where ICANN has a hub. The former
> would have global effects on ICANN than the latter. I for one would be
> glad if there can be immunity/exemption for ICANN(used in literary
> terms) in such scenarios
>
> Regards
>
> Sent from my LG G4
> Kindly excuse brevity and typos
>
> On Feb 13, 2017 7:59 PM, "Paul Rosenzweig"
> <paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>> wrote:
>
> 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____
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>____
>
> O: +1 (202) 547-0660 <tel:+1%20202-547-0660>____
>
> M: +1 (202) 329-9650 <tel:+1%20202-329-9650>____
>
> VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739>____
>
> www.redbranchconsulting.com <http://www.redbranchconsulting.com/>____
>
> My PGP Key:
> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
> <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>____
>
> __ __
>
> *From:*parminder [mailto:parminder at itforchange.net
> <mailto:parminder at itforchange.net>]
> *Sent:* Sunday, February 12, 2017 12:54 AM
> *To:* Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>>;
> ws2-jurisdiction at icann.org <mailto: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____
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>____
>
> O: +1 (202) 547-0660 <tel:+1%20202-547-0660>____
>
> M: +1 (202) 329-9650 <tel:+1%20202-329-9650>____
>
> VOIP: +1 (202) 738-1739 <tel:+1%20202-738-1739>____
>
> www.redbranchconsulting.com
> <http://www.redbranchconsulting.com/>____
>
> My PGP Key:
> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
> <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>____
>
> ____
>
> *From:*ws2-jurisdiction-bounces at icann.org
> <mailto: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.
>
>
>
> _______________________________________________
> Ws2-jurisdiction mailing list
> Ws2-jurisdiction at icann.org <mailto:Ws2-jurisdiction at icann.org>
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> ____
>
> ____
>
> __ __
>
>
> _______________________________________________
> Ws2-jurisdiction mailing list
> Ws2-jurisdiction at icann.org <mailto:Ws2-jurisdiction at icann.org>
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
>
>
>
> _______________________________________________
> Ws2-jurisdiction mailing list
> Ws2-jurisdiction at icann.org
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>
> 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.
>
>
>
> _______________________________________________
> Ws2-jurisdiction mailing list
> Ws2-jurisdiction at icann.org <mailto:Ws2-jurisdiction at icann.org>
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> ____
>
> ____
>
> __ __
>
>
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