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

Paul Rosenzweig paul.rosenzweig at redbranchconsulting.com
Fri Feb 17 13:50:00 UTC 2017


Paraminder
Ask UBS
--
Paul Rosenzweig
Sent from myMail app for Android Friday, 17 February 2017, 08:18AM -05:00 from parminder  parminder at itforchange.net :

>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
>>O:
            +1 (202) 547-0660
>>M:
            +1 (202) 329-9650
>>VOIP:
            +1 (202) 738-1739
>>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 >
              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
>>>O:  +1
                          (202) 547-0660
>>>M:  +1
                          (202) 329-9650
>>>VOIP: +1
                          (202) 738-1739
>>>www.redbranchconsulting.com
>>>My
                        PGP Key:  https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
>>> 
>>>From: parminder [mailto: parminder at itforchange.net ]
>>>Sent: Sunday, February 12, 2017 12:54
                          AM
>>>To: Paul Rosenzweig < paul.rosenzweig at redbranchconsulting.com >; ws2-jurisdiction at icann.org
>>>Subject: Re: [Ws2-jurisdiction] Blog
                          post on ICANN's jurisdiction
>>> 
>>> 
>>>On
                      Saturday 11 February 2017 10:54 PM, Paul
                      Rosenzweig wrote:
>>>>As
                        we have repeatedly noted, the exact same thing
                        is true of ICANN’s being subject to the laws of
                        India, France and any other place it does
                        business.  
>>>
>>>Paul, and you have missed the repeated response that
                    of course this is not true (and you know it) -- the
                    implication of jurisdiction of incorporation of a
                    body, and its impact on its working, is of a
                    completely different order than that of the
                    jurisdictions where it may merely conduct some
                    business. Do you refute this proposition? 
>>>
>>>Would you in your professional life advice, say, a
                    business incorporated in Germany but with worldwide
                    business footprint that the application of German
                    jurisdiction and laws on it -- and the real life
                    implications of such application -- is more or less
                    the same as application of jurisdiction and laws of
                    all counties where it may conduct any business at
                    all? I look forward to a clear and unambiguous
                    response to this. Thanks.
>>>
>>>If indeed we are to keep falsifying such basic
                    facts, which everyone knows well, and base our
                    positions on that, there is no way we can go
                    anywhere with this sub group. We may as well close
                    it up and let the rapporteur write whatever report
                    he may want to forward. No use wasting time here in
                    trying to "prove" and reprove and reprove basic
                    universally known legal and political facts. 
>>>
>>>>Your
                        persistence in arguing a strawman Paraminder
                        puts me in mind of Amartya Sen.
>>>
>>>A perceptive book he wrote, but also speaks of
                    Indian humility and self-deprecation... Wonder why
                    no one ever wrote "The Hegemonic American"...
>>>
>>>parminder 
>>>
>>>> 
>>>>Paul
                          Rosenzweig
>>>>paul.rosenzweig at redbranchconsulting.com
>>>>O:  +1
                            (202) 547-0660
>>>>M:  +1
                            (202) 329-9650
>>>>VOIP: +1
                            (202) 738-1739
>>>>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  parminder
>>>>Sent: Saturday, February 11, 2017
                            8:46 AM
>>>>To: 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
>>>>>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
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