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

matthew shears mshears at cdt.org
Thu Feb 23 17:39:02 UTC 2017


Yes, thanks Becky - well put


On 23/02/2017 17:37, Phil Corwin wrote:
>
> +1. Well stated.
>
> *Philip S. Corwin, Founding Principal*
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>
> *From:*ws2-jurisdiction-bounces at icann.org 
> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of *Burr, Becky
> *Sent:* Thursday, February 23, 2017 12:26 PM
> *To:* Seun Ojedeji; Greg Shatan
> *Cc:* ws2-jurisdiction
> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
>
> I am extremely reluctant to wade in here, and do so explicitly in my 
> personal capacity as an active participant in the CCWG-Accountability 
> work, including as the rapporteur for the Mission, Commitment, and 
> Core Values provisions of the Bylaws.  These views are mine alone, and 
> may or may not be shared by other members of the ICANN Board.
>
> I respect Parminder’s conviction that ICANN should have immunity as an 
> international organization. But the record of the CCWG-Accountability 
> work reflects the fact that the concept of constituting ICANN as an 
> international organization with privileges and immunities model was 
> discussed but rejected in favor of a model that created specific, 
> externally enforceable community powers of the sort created by the 
> California non-profit corporation statute.  Absent the statutory grant 
> of authority found in California law (and the laws of other 
> jurisdictions no doubt), the community powers are likely not enforceable.
>
> I am also confused about how one would reconcile the privileges and 
> immunity approach with deliberately chosen language in the Bylaws.  
> Under the US International Organizations Immunities Act, ICANN would 
> first have to be an “international organization” as defined in the Act 
> thus: For the purposes of this subchapter, the term “international 
> organization” means a public international organization in which the 
> United States participates pursuant to any treaty or under the 
> authority of any Act of Congress authorizing such participation or 
> making an appropriation for such participation, and which shall have 
> been designated by the President through appropriate Executive order 
> as being entitled to enjoy the privileges, exemptions, and immunities 
> provided in this subchapter.”  22 U.S. Code 228.  The Swiss Host State 
> Act, 2007, has similar requirements.  ICANN is not a treaty-based 
> organization, nor is it conducting work normally carried out by an 
> intergovernmental organization. Turning it into a treaty-based 
> organization would seem to me to violate the Bylaws-mandated Core 
> Value that requires ICANN to */remain rooted in the private sector/*. 
> This language was contested on numerous occasions by members of the 
> GAC, and the community repeatedly insisted on retaining this 
> orientation.  I think that there can be little argument that the 
> community affirmatively committed to maintaining this status through 
> the Accountability work.
>
> *From:*ws2-jurisdiction-bounces at icann.org 
> <mailto:ws2-jurisdiction-bounces at icann.org> 
> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of *Seun Ojedeji
> *Sent:* Tuesday, February 14, 2017 1:43 PM
> *To:* Greg Shatan <gregshatanipc at gmail.com 
> <mailto:gregshatanipc at gmail.com>>
> *Cc:* ws2-jurisdiction <ws2-jurisdiction at icann.org 
> <mailto:ws2-jurisdiction at icann.org>>
> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
>
> Sent from my LG G4
> Kindly excuse brevity and typos
>
> On Feb 14, 2017 12:29 PM, "Greg Shatan" <gregshatanipc at gmail.com 
> <mailto:gregshatanipc at gmail.com>> wrote:
>
>     Seun,
>
>     You say that a "Trump travel Ban . . . 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."
>
>     Can you clarify how a travel ban into the US from a list of
>     countries would "have global effects on ICANN" and a travel ban
>     into Turkey from a list of countries not have a similar type of
>     effect?  Is this just because more people will want to travel to
>     ICANN's operations in the US than those in Turkey?
>
> SO: It's not really because more people "want" to, it's because for 
> ICANN it may be prudent at times to have the meeting in the US. When I 
> say meeting, I am not just referring to the 3 global meetings alone.
>
>     Why is it a global effect on ICANN if it only concerns a small
>     number of countries?
>
> SO: Sometime ago I was reading an article mentioning whether I* 
> organisations should cancel subsequent meetings in the US (even though 
> I personally do not think it's worth it to cancel already planned 
> Puerto Rico meeting) but imagine the global effects if such happen. 
> Beyond that such action by US govt also cause unintended(or perhaps 
> unnecessary) consequences/reactions. Like it won't be out of scope for 
> an African govt who is already pissed off with .Africa[1] and second 
> level 2 character to also indicate the ban as an exhibit to drive a 
> point.
>
> Just checkout how many ICANN related articles that connects to the ban 
> has been published lately so you think similar level of response would 
> have happened globally if the travel ban happened in Turkey? I doubt. 
> So it's not always about the few ban countries, it's about the global 
> reaction.
>
> For clarity if ICANN were incorporated in Turkey and same banned 
> happen, the global effect would have still be similar to that of the 
> US at present. So the point is not that it may not have happened if 
> ICANN was incorporated in Turkey (or Switzerland as Paul puts it) but 
> the point is that it is unfair to say the effects to ICANN 
> ORG/community in both scenarios is the same
>
> Regards
>
> 1. Ofcourse I recognise there is not light at the end of the tunnel.
>
>     [Please note that I personally do not support the travel ban, nor
>     do I minimize the effects it has had and continues to have on
>     citizens of those countries.]
>
>     Thanks!
>
>     Greg
>
>
>     *Greg Shatan
>     *C: 917-816-6428
>     S: gsshatan
>     Phone-to-Skype: 646-845-9428
>     gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com>
>
>     On Tue, Feb 14, 2017 at 6:17 AM, Seun Ojedeji
>     <seun.ojedeji at gmail.com <mailto:seun.ojedeji at gmail.com>> wrote:
>
>         Thanks Nigel, I am not asking about an overall immunity for
>         ICANN but I am talking about specific scenario like the ones I
>         have indicated. Maybe the right word isn't immunity.
>
>         Cheers!
>
>         Sent from my LG G4
>         Kindly excuse brevity and typos
>
>         On Feb 14, 2017 11:45 AM, "Nigel Roberts"
>         <nigel at channelisles.net <mailto:nigel at channelisles.net>> wrote:
>
>             I think you miss the point about immunity.
>
>             It's means "ICANN can do what it likes and can't be sued".
>
>
>
>             On 14/02/17 09:23, Seun Ojedeji wrote:
>
>                 Hi,
>
>                 I am not a lawyer but it doesn't sound accurate to say
>                 that the effect
>                 of the country of  (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>
>                 <mailto: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>
>                     <mailto:paul.rosenzweig at redbranchconsulting.com
>                 <mailto:paul.rosenzweig at redbranchconsulting.com>>____
>
>                     O: +1 (202) 547-0660
>                 <tel:%2B1%20%28202%29%20547-0660>
>                 <tel:+1%20202-547-0660>____
>
>                     M: +1 (202) 329-9650
>                 <tel:%2B1%20%28202%29%20329-9650>
>                 <tel:+1%20202-329-9650>____
>
>                     VOIP: +1 (202) 738-1739
>                 <tel:%2B1%20%28202%29%20738-1739>
>                 <tel:+1%20202-738-1739>____
>
>                 www.redbranchconsulting.com
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>
>                     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=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>
>                    
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>
>                     __ __
>
>                     *From:*parminder [mailto:parminder at itforchange.net
>                 <mailto:parminder at itforchange.net>
>                     <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>
>                     <mailto:paul.rosenzweig at redbranchconsulting.com
>                 <mailto:paul.rosenzweig at redbranchconsulting.com>>>;
>                 ws2-jurisdiction at icann.org
>                 <mailto:ws2-jurisdiction at icann.org>
>                 <mailto: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>
>                        
>                 <mailto:paul.rosenzweig at redbranchconsulting.com
>                 <mailto:paul.rosenzweig at redbranchconsulting.com>>____
>
>                         O: +1 (202) 547-0660
>                 <tel:%2B1%20%28202%29%20547-0660>
>                 <tel:+1%20202-547-0660>____
>
>                         M: +1 (202) 329-9650
>                 <tel:%2B1%20%28202%29%20329-9650>
>                 <tel:+1%20202-329-9650>____
>
>                         VOIP: +1 (202) 738-1739
>                 <tel:%2B1%20%28202%29%20738-1739>
>                 <tel:+1%20202-738-1739>____
>
>                 www.redbranchconsulting.com
>                 <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=>
>                         <http://www.redbranchconsulting.com/
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>
>                         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=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>
>                        
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>
>                         ____
>
>                         *From:*ws2-jurisdiction-bounces at icann.org
>                 <mailto:ws2-jurisdiction-bounces at icann.org>
>                         <mailto:ws2-jurisdiction-bounces at icann.org
>                 <mailto:ws2-jurisdiction-bounces at icann.org>>
>                         [mailto:ws2-jurisdiction-bounces at icann.org
>                 <mailto: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>
>                 <mailto: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) . ____
>                 > of the country of  (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>
>                 <mailto: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>
>                     <mailto:paul.rosenzweig at redbranchconsulting.com
>                 <mailto:paul.rosenzweig at redbranchconsulting.com>>____
>
>                     O: +1 (202) 547-0660
>                 <tel:%2B1%20%28202%29%20547-0660>
>                 <tel:+1%20202-547-0660>____
>
>                     M: +1 (202) 329-9650
>                 <tel:%2B1%20%28202%29%20329-9650>
>                 <tel:+1%20202-329-9650>____
>
>                     VOIP: +1 (202) 738-1739
>                 <tel:%2B1%20%28202%29%20738-1739>
>                 <tel:+1%20202-738-1739>____
>
>                 www.redbranchconsulting.com
>                 <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=>
>                 <http://www.redbranchconsulting.com/
>                 <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=1k6KNFdJzQIC6CkW4-cXYamlUd3hWDS-W8MchdaYxlg&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=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>
>                    
>                 <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=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>>____
>
>                     __ __
>
>                     *From:*parminder [mailto:parminder at itforchange.net
>                 <mailto:parminder at itforchange.net>
>                     <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>
>                     <mailto:paul.rosenzweig at redbranchconsulting.com
>                 <mailto:paul.rosenzweig at redbranchconsulting.com>>>;
>                 ws2-jurisdiction at icann.org
>                 <mailto:ws2-jurisdiction at icann.org>
>                 <mailto: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>
>                        
>                 <mailto:paul.rosenzweig at redbranchconsulting.com
>                 <mailto:paul.rosenzweig at redbranchconsulting.com>>____
>
>                         O: +1 (202) 547-0660
>                 <tel:%2B1%20%28202%29%20547-0660>
>                 <tel:+1%20202-547-0660>____
>
>                         M: +1 (202) 329-9650
>                 <tel:%2B1%20%28202%29%20329-9650>
>                 <tel:+1%20202-329-9650>____
>
>                         VOIP: +1 (202) 738-1739
>                 <tel:%2B1%20%28202%29%20738-1739>
>                 <tel:+1%20202-738-1739>____
>
>                 www.redbranchconsulting.com
>                 <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=SW0awN355LgKou0VH8FoTnUMVW3Ew72doP7GYG8HOWw&e=>
>                         <http://www.redbranchconsulting.com/
>                 <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting.com_&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=1k6KNFdJzQIC6CkW4-cXYamlUd3hWDS-W8MchdaYxlg&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=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>
>                        
>                 <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=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=gBJP9BR7SmJmiYPTtMNTO5cs0-iDPOyGn0HBd1gGbLk&e=>>____
>
>                         ____
>
>                         *From:*ws2-jurisdiction-bounces at icann.org
>                 <mailto:ws2-jurisdiction-bounces at icann.org>
>                         <mailto:ws2-jurisdiction-bounces at icann.org
>                 <mailto:ws2-jurisdiction-bounces at icann.org>>
>                         [mailto:ws2-jurisdiction-bounces at icann.org
>                 <mailto: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>
>                 <mailto: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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>                 Ws2-jurisdiction at icann.org
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>                 ____
>
>                         ____
>
>                     __ __
>
>
>                 _______________________________________________
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>
>
>
>                 _______________________________________________
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>                 Ws2-jurisdiction at icann.org
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>
>                     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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>                         ____
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-- 
------------
Matthew Shears
Global Internet Policy and Human Rights
Center for Democracy & Technology (CDT)
+ 44 771 2472987

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