[Ws2-jurisdiction] Blog post on ICANN's jurisdiction
parminder
parminder at itforchange.net
Fri Feb 17 13:18:14 UTC 2017
The travel bans make the simple but clear point that a nation will use
its legal machinery for all purposes that it considers being in national
interest, no matter if that rides roughshod over the interests of people
from other countries. The many lessons from this for the issue of ICANN
being under US jurisdiction are rather obvious....
" But it is simply a myth to say that moving ICANN’s legal place of
incorporation to someplace outside the US will change anything about the
applicability of US law." (Paul)
This repeated restatement of a manifest untruth is astonishing --- that
US law's application over ICANN does not change whether or not ICANN is
incorporated in the US. You must have some extraordinary vision of the
grandeur and reach of the US law! I am now getting afraid that the US
government may now ban travel from the 7 banned countries to India too.
People beware!. Are we living in the Alice's wonderland!! (Why btw then
you wont agree to let ICANN get incorporated say in India. I can bet
Indian government will readily pay all the costs involved. It will just
end this otherwise endless debate.)
parminder
On Tuesday 14 February 2017 08:16 PM, Paul Rosenzweig wrote:
>
> Sorry, but neither the travel ban nor the OFAC requirements are
> dependent on ICANN’s place of incorporation. Even if ICANN were
> incorporated in, say, Switzerland, the travel ban would still effect a
> hypothetical meeting in the US. The way to ameliorate the travel ban
> is to change the need for travel. I do suspect (and support) the idea
> that IF the travel ban takes effect ICANN consider that factor in
> deciding where to hold meetings.
>
>
>
> As for OFAC requirements, they can be applied to any corporation doing
> business in the US (which is how, for example, the US tries to get
> foreign banks not to do business with listed entities). Again, unless
> ICANN stops doing all business in the US (no office; not ccTLD; no
> registrar or registry contracts and maybe even no American consumer
> customers) OFAC can be applied. It even applies (in some cases, to
> wholly foreign subsidiaries).
>
>
>
> Like Greg, let me emphasize that I do not support the Travel Ban and I
> support ICANN’s effort (so far successful) to avoid the impact of OFAC
> on its operations. But it is simply a myth to say that moving ICANN’s
> legal place of incorporation to someplace outside the US will change
> anything about the applicability of US law.
>
>
>
> 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 <http://www.redbranchconsulting.com/>
>
> My PGP Key:
> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
>
>
>
> *From:*Seun Ojedeji [mailto:seun.ojedeji at gmail.com]
> *Sent:* Tuesday, February 14, 2017 4:23 AM
> *To:* Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>
> *Cc:* ws2-jurisdiction <ws2-jurisdiction at icann.org>; parminder
> <parminder at itforchange.net>
> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
>
>
>
> Hi,
>
>
>
> I am not a lawyer but it doesn't sound accurate to say that the effect
> of the country of incorporation (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
>
>
>
> *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
>
>
>
> *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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