[Ws2-jurisdiction] Blog post on ICANN's jurisdiction
parminder
parminder at itforchange.net
Tue Feb 14 16:42:37 UTC 2017
On Tuesday 14 February 2017 03:23 AM, Burr, Becky wrote:
>
> On the Right to be Forgotten issue, this may be of interest:
> https://www.theguardian.com/technology/2016/feb/11/google-extend-right-to-be-forgotten-googlecom
>
>
>
> Asking only for information, and not reflecting any views of the Board
> – but is the question of immunity within scope? We just spent several
> years and many millions of dollars agreeing on an accountability
> mechanism that ultimately relies on the authority of a court to
> enforce the results of an IRP or the exercise of a community power.
>
Becky,
There are other responses to be given to a few issues and postings but
this is confined to a very narrow and clear point: were you and others
not around when, at the start of the transition process many asked for
the jurisdiction to be taken up first, front and centre but it was
argued by many and "decided" that work stream 1 will only take up issues
that must be decided before and for the IANA transition to take place,
and that other issues can be dealt by work stream 2, and, further, that
the jurisdiction issue fits the description of issues for the
work-stream 2, it being not essential to IANA transition and setting up
new IANA and community accountability arrangements. With this precise
argument, the jurisdiction issue was force-postponed to works stream 2
over the protests of those who wanted to sort it our first. What does
one now make of the same people saying that jurisdiction issue should in
fact have been sorted out before the new IANA and community
accountability mechanisms were decided, and now it is too late to do so?
Please clarify. Thanks.
Best regards, parminder
>
>
>
>
>
>
> *From:*ws2-jurisdiction-bounces at icann.org
> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of *Paul Rosenzweig
> *Sent:* Monday, February 13, 2017 1:59 PM
> *To:* 'parminder' <parminder at itforchange.net>; ws2-jurisdiction at icann.org
> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
>
>
>
> 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
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> www.redbranchconsulting.com
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=jVbio65R2RgPLnm2aEg_6Nf9rv5aZjPbmiIko1e7Zr4&s=si2IWrO2xlIGSJ4cnQBWEEF7MH881gn6WINuvb29W38&e=>
>
> My PGP Key:
> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=jVbio65R2RgPLnm2aEg_6Nf9rv5aZjPbmiIko1e7Zr4&s=o-4zgaXZNOFUO08Jqh52pS-lmobR0A-B4lhaTpLrVZk&e=>
>
>
>
> *From:*parminder [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
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> www.redbranchconsulting.com
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=jVbio65R2RgPLnm2aEg_6Nf9rv5aZjPbmiIko1e7Zr4&s=si2IWrO2xlIGSJ4cnQBWEEF7MH881gn6WINuvb29W38&e=>
>
> My PGP Key:
> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__keys.mailvelope.com_pks_lookup-3Fop-3Dget-26search-3D0x9A830097CA066684&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=jVbio65R2RgPLnm2aEg_6Nf9rv5aZjPbmiIko1e7Zr4&s=o-4zgaXZNOFUO08Jqh52pS-lmobR0A-B4lhaTpLrVZk&e=>
>
>
>
> *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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