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

matthew shears mshears at cdt.org
Tue Feb 14 14:56:56 UTC 2017


+ 1


On 14/02/2017 14:39, Paul Rosenzweig wrote:
>
> +1
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com 
> <mailto:paul.rosenzweig at redbranchconsulting.com>
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
>
> My PGP Key: 
> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
>
> *From:*ws2-jurisdiction-bounces at icann.org 
> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of *Phil Corwin
> *Sent:* Tuesday, February 14, 2017 6:32 AM
> *To:* Seun Ojedeji <seun.ojedeji at gmail.com>; Nigel Roberts 
> <nigel at channelisles.net>
> *Cc:* ws2-jurisdiction <ws2-jurisdiction at icann.org>
> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
>
> In regard to President Trump's proposed temporary travel restrictions, 
> the fact that they have been enjoined by US Courts illustrates that 
> ICANN is well placed in a nation subject to rule of law and separation 
> of powers.
>
> So far as OFAC restrictions aimed at preventing business transactions 
> with criminal and terrorist organizations, ICANN has indicated that it 
> can request exemptions and that when it has done so they have been 
> granted (at least that is my recollection).
>
> Finally, and once again, arguments that ICANN should be immune not 
> just from US jurisdiction but from the laws of any nation state are in 
> effect positing that ICANN should be an IGO with broad quasi-sovereign 
> immunity. That would be both contrary to the aim of the transition as 
> well as contrary to effective accountability, which can only occur 
> when Bylaws transgressions can be adjudicated in court if internal 
> mechanisms fail.
>
> *Philip S. Corwin, Founding Principal*
>
> *Virtualaw LLC*
>
> *1155 F Street, NW*
>
> *Suite 1050*
>
> *Washington, DC 20004*
>
> *202-559-8597/Direct*
>
> *202-559-8750/Fax*
>
> *202-255-6172/cell*
>
> */"Luck is the residue of design" -- Branch Rickey/*
>
> ------------------------------------------------------------------------
>
> *From:*ws2-jurisdiction-bounces at icann.org 
> <mailto:ws2-jurisdiction-bounces at icann.org> 
> [ws2-jurisdiction-bounces at icann.org] on behalf of Seun Ojedeji 
> [seun.ojedeji at gmail.com]
> *Sent:* Tuesday, February 14, 2017 6:17 AM
> *To:* Nigel Roberts
> *Cc:* ws2-jurisdiction
> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
>
> Thanks Nigel, I am not asking about an overall immunity for ICANN but 
> I am talking about specific scenario like the ones I have indicated. 
> Maybe the right word isn't immunity.
>
> Cheers!
>
> Sent from my LG G4
> Kindly excuse brevity and typos
>
> On Feb 14, 2017 11:45 AM, "Nigel Roberts" <nigel at channelisles.net 
> <mailto:nigel at channelisles.net>> wrote:
>
>     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>
>         <mailto: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>
>             <mailto:paul.rosenzweig at redbranchconsulting.com
>         <mailto:paul.rosenzweig at redbranchconsulting.com>>____
>
>             O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660>
>         <tel:+1%20202-547-0660>____
>
>             M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650>
>         <tel:+1%20202-329-9650>____
>
>             VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739>
>         <tel:+1%20202-738-1739>____
>
>         www.redbranchconsulting.com
>         <http://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>
>             <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>
>             <mailto:paul.rosenzweig at redbranchconsulting.com
>         <mailto:paul.rosenzweig at redbranchconsulting.com>>>;
>         ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org>
>         <mailto: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>
>                 <mailto:paul.rosenzweig at redbranchconsulting.com
>         <mailto:paul.rosenzweig at redbranchconsulting.com>>____
>
>                 O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660>
>         <tel:+1%20202-547-0660>____
>
>                 M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650>
>         <tel:+1%20202-329-9650>____
>
>                 VOIP: +1 (202) 738-1739
>         <tel:%2B1%20%28202%29%20738-1739> <tel:+1%20202-738-1739>____
>
>         www.redbranchconsulting.com <http://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>>
>                 [mailto: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>
>         <mailto: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>
>         <mailto: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>
>             <mailto:paul.rosenzweig at redbranchconsulting.com
>         <mailto:paul.rosenzweig at redbranchconsulting.com>>____
>
>             O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660>
>         <tel:+1%20202-547-0660>____
>
>             M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650>
>         <tel:+1%20202-329-9650>____
>
>             VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739>
>         <tel:+1%20202-738-1739>____
>
>         www.redbranchconsulting.com
>         <http://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>
>             <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>
>             <mailto:paul.rosenzweig at redbranchconsulting.com
>         <mailto:paul.rosenzweig at redbranchconsulting.com>>>;
>         ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org>
>         <mailto: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>
>                 <mailto:paul.rosenzweig at redbranchconsulting.com
>         <mailto:paul.rosenzweig at redbranchconsulting.com>>____
>
>                 O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660>
>         <tel:+1%20202-547-0660>____
>
>                 M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650>
>         <tel:+1%20202-329-9650>____
>
>                 VOIP: +1 (202) 738-1739
>         <tel:%2B1%20%28202%29%20738-1739> <tel:+1%20202-738-1739>____
>
>         www.redbranchconsulting.com <http://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>>
>                 [mailto: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>
>         <mailto: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>
>         <mailto: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>
>         <mailto: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
>
>                 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>
>         <mailto: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>
>         <mailto: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
>
>     _______________________________________________
>     Ws2-jurisdiction mailing list
>     Ws2-jurisdiction at icann.org <mailto:Ws2-jurisdiction at icann.org>
>     https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>
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-- 
------------
Matthew Shears
Global Internet Policy and Human Rights
Center for Democracy & Technology (CDT)
+ 44 771 2472987

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