[Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com
Thu Feb 23 17:38:45 UTC 2017
+1
--
Paul Rosenzweig
Sent from myMail app for Android Thursday, 23 February 2017, 00:26PM -05:00 from Burr, Becky Becky.Burr at neustar.biz :
>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] On Behalf Of Seun Ojedeji
>Sent: Tuesday, February 14, 2017 1:43 PM
>To: Greg Shatan < gregshatanipc at gmail.com >
>Cc: ws2-jurisdiction < 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 > 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
>>
>>On Tue, Feb 14, 2017 at 6:17 AM, Seun Ojedeji < 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 > 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 >> 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
>>>>> < 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
>>>>> < 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
>>>>> <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) . ____
>>>>>> 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 >> 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
>>>>> < 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
>>>>> < 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
>>>>> <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.
>>>>>
>>>>>
>>>>>
>>>>> _______________________________________________
>>>>> Ws2-jurisdiction mailing list
>>>>> Ws2-jurisdiction at icann.org <mailto: Ws2-jurisdiction at icann.org >
>>>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>>>> < https://mm.icann.org/mailman/listinfo/ws2-jurisdiction >
____
>>>>>
>>>>> ____
>>>>>
>>>>> __ __
>>>>>
>>>>>
>>>>> _______________________________________________
>>>>> Ws2-jurisdiction mailing list
>>>>> Ws2-jurisdiction at icann.org <mailto: Ws2-jurisdiction at icann.org >
>>>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>>>> < 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
>>>>
>>>>> 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 <mailto: Ws2-jurisdiction at icann.org >
>>>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>>>> < https://mm.icann.org/mailman/listinfo/ws2-jurisdiction >
____
>>>>>
>>>>> ____
>>>>>
>>>>> __ __
>>>>>
>>>>>
>>>>> _______________________________________________
>>>>> Ws2-jurisdiction mailing list
>>>>> Ws2-jurisdiction at icann.org <mailto: Ws2-jurisdiction at icann.org >
>>>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>>>> < 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
>>>>_______________________________________________
>>>>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
>>
>
>_______________________________________________
>Ws2-jurisdiction mailing list
>Ws2-jurisdiction at icann.org
>https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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