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

Mon Feb 20 06:04:17 UTC 2017

 Thank you Parminder.

I have several comments/points/questions with regards to granting ICANN
immunity from the US laws altogether.

First: Can ICANN be held accountable if it is immune in the US? If it can,
how so? ( I know you have explained this before but can you specifically
point to a source, an applicable law? ) United Nations and its agencies act
autonomously, they have been granted immunity and sometimes they don't act
responsibly and it is not clear how we can hold them accountable. Same
thing should not happen to ICANN.  which court can ICANN be taken to? You
think IRP is enough?

Second: As to the laws, we don't have a developed set of international laws
that can address all ICANN issues, do we? For example, sometimes in some
disputes the question is whether domain names or ccTLDs are property or
service. We don't have a solid body of international laws that can
ascertain such issues. So I am not sure what will happen if there is a
blanket immunity over US laws. ( I think we have discussed these before,
sorry for bringing them up again but it's not bad to be reminded)

Also, I was wondering if you could be more issue specific on domain name
issues, maybe with real examples. I understand your hypothetical example
but there can be so many ifs and buts that I prefer to get a clear example
of something has already happened. I don't think any governmental executive
agency can just ask ICANN to disable a generic name. They have to go
through court. But I might be wrong and  a real life example will be
extremely helpful.

You are right that OFAC licenses can be  revoked, and certainly we need to
discuss this further as to what happens if a license is revoked and based
on what reasons it can be revoked. But consider that sometimes the US does
not revoke a license for a national reason, it does it because of an
international reason! There is an interesting revocation case which US
cites the reason as:

"As a member of the Financial Action Task Force (FATF), the United States
today fulfilled its obligation* [revoking Iran's license]* to strengthen
measures to protect the financial sector from the risks posed to the
international financial system by Iran.  In October 2008, FATF issued its
fourth statement declaring that Iran continues to "pose a serious threat to
the integrity of the international financial system" and called for
countries worldwide to strengthen measures to protect their financial
sectors from this threat."  Found at
https://www.treasury.gov/press-center/press-releases/Pages/hp1257.aspx

addition in italics added by me.

So I guess this revocation could happen in any other country.

Best

Farzaneh

Farzaneh

On Sat, Feb 11, 2017 at 2:50 AM, parminder <parminder at itforchange.net>
wrote:

>
> On Saturday 21 January 2017 02:58 AM, farzaneh badii wrote:
>
> All,
>
> Here is a blog post on ICANN's jurisdiction and sanctions.  http://www.
> internetgovernance.org/2017/01/13/icanns-jurisdiction-
> sanctions-and-domain-names/
>
> I have raised some of the issues before but the blog post is more
> consolidated. Hope it is useful for the work of this group.
>
>
> Dear Farzaneh,
>
> Thanks for this meticulous and useful work.
>
> I have two comments to offer. Firstly, OFAC are just one kinds of
> sanctions that outside entities may be faced with. There could be other
> kinds related to commercial issues, like intellectual property, that
> businesses of other countries can face in the US, whether arising from a
> court order or that of an executive/ regulatory agency.
>
> Here is an example
> <http://www.business-standard.com/article/companies/dutch-customs-seize-indian-drugs-in-transit-industry-frets-112012300081_1.html>
> of an EU government seizing, on US request, generic drugs being exported
> from India to Brazil. While this dispute is at the WTO, there is no
> question that if a US organisation (including non profit) were in any way
> helping or facilitating such a trade between India and US it will be forced
> to withdraw help/ facilitation by a US court or executive agency. Lets now
> assume that the hypothetical Indian exporter had a gTLD  .genericdrugs
> which domain space was employed inter alia to facilitate its global
> business. The US law, through courts or executive agencies, would easily
> come in to disable it if it can - and it indeed can through its
> jurisdictional oversight over ICANN.
>
> Now we come to the crucial part of what are the solutions that we may
> have.
>
> You suggest that ICANN gets some kind of a general OFAC waiver. Firstly,
> as described above there are many other ways and basis for interference by
> the US government with the DNS beyond OFAC . Therefore we will need to get
> intellectual property violation waiver, lottery activity waiver, 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?
>
> Secondly, no waiver is permanent, as we can very well judge from the
> Trump's administration's various activities. US is a democracy, and people
> have a right to change their governments, and the government have the right
> to change policies and laws. That would happen all the time. And we must
> act as if changes will happen rather than that they wont. Yes, even
> immunity under the mentioned US Act can be rolled back, and therefore
> international law and incorporation is the only real solution. However, to
> withdraw statutory immunity is so much more difficult. Plus there would be
> time, if this is attempted, for ICANN to even seek to make "alternative
> arrangements" outside the US.
>
> parminder
>
>
>
> Best
>
> Farzaneh
>
>
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