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

Wed Feb 22 12:09:37 UTC 2017

Farzaneh, thanks for your response. Pl see inline.

On Monday 20 February 2017 11:34 AM, farzaneh badii wrote:
>  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?

As mentioned in the email I sent just now, with reference to information
contained in a legal memo attached to an ICANN report, immunity for
ICANN can easily be had without affecting its accountability and other
internal governance mechanisms. I happy to have further discussion, and
inputs from others, on this point. I have also repeatedly asked for
legal opinion to be taken from a "neutral authority" on this matter, but
my demands have had no response.

>
> 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)

Yes, international law is obviously not as expansive as national laws,
but that is the cost we must accept in going forward to be governed
globally, but democratically - in this case, for an global as against
nationally fragmented Internet.  This said, there is enough
international law, and customary law application, for a globally
designated judicial body to be able to adjudicate matters to
satisfaction. This plus an active community mechanism should do for a
beginning. You asked in the last question if IRP is enough, we can begin
with it, but I prefer a more "general judicial" body that a sectoral
arbitration for many reasons that I would not go into here (but of
course the former is better in administration of general law actorss all
sectors and issues). It is possible to later move towards such a global
judicial oversight.

> 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.

Why not, if it within legal authority of a regulatory or executive
body.US customs have forced
<https://www.wired.com/2012/03/feds-seize-foreign-sites/> .com to seize
domain names. Now if they wanted to act against say .genericdrugs, with
registry in India, give me one reason US customs will treat ICANN
differently than they treat Verisign... They will simply force ICANN to
remove .genericdrugs as they have been forcing .com.

> They have to go through court. But I might be wrong and  a real life
> example will be extremely helpful.

The above is a real example. As is disruption of Crimean domain names
http://atlarge-lists.icann.org/pipermail/na-discuss_atlarge-lists.icann.org/2015-March/008611.html

>
> 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:

US state is constitutionally ordained to work to ensure US national
interest. Period. Other concerns are secondary. They may indulge in
international reasons, but that after US interest is taken care of.
>
> "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.

Yes. Therefore ICANN should not be subject to /any /country's
jurisdiction, but be immunised and subject to international laws and
procedures alone.

Best, parminder
>
> Best
>
> Farzaneh
>
>  
>
> Farzaneh
>
> On Sat, Feb 11, 2017 at 2:50 AM, parminder <parminder at itforchange.net
> <mailto: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/
>>     <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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