[Ws2-jurisdiction] Blog post on ICANN's jurisdiction
parminder
parminder at itforchange.net
Sat Feb 25 04:20:54 UTC 2017
Becky, thanks for your response and please see inline.
On Thursday 23 February 2017 10:56 PM, Burr, Becky wrote:
>
> 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.
>
My impression is that immunities is part of the jurisdiction issue that
got passed on to workstream, and we are dealing with it now. How and why
was it discussed in work-stream is not known to me. it was in relation
to enforceability of community accountability mechanism, please see below.
> 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.
>
As argued in my previous email, based on an legal memo attached to an
ICANN report, it is evident that ICANN can waive immunity with regard to
operation of relevant California non profit law required for its
accountability mechanism. I am happy to seek legal advice on this point.
But from what looks apparent now, your above statement may not hold true.
>
>
> 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.
>
Yes, it needs action by both the Congress and the President of the US.
The former will need to just amend some existing laws related to some
international orgs and add ICANN somewhere in it. Simple work. And the
President has to issue a decree under the Immunities Act.
> ICANN is not a treaty-based organization,
>
This is not required.
>
> nor is it conducting work normally carried out by an intergovernmental
> organization.
>
As shown by Jorge, this is not true.
> Turning it into a treaty-based organization
>
No need to turn it into treaty based org to get US immunity.
>
> would seem to me to violate the Bylaws-mandated Core Value that
> requires ICANN to */remain rooted in the private sector/*.
>
There is a linguistic problem here. Private sector is understood
differently in the US than almost everywhere else. In the US, it is just
to be outside government, which ICANN is. Outside the US, it mostly mean
for profit sector. ICANN is indeed outside government(s), and there is
no proposal to change that. But it is also equally a non profit . That
also I hope is not intended to be changed.
In any case, whether non profit or for profit, everything is always
subject to some kind of governmental jurisdiction. Being so subject
does not change its non profit or even for profit nature. So the point
is really moot.
> 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.
>
The community asked this group to consider the issue of US jurisdiction
over ICANN. And a question can only be considered if it is open -
-unless, sorry to use that word, we are all mutually and together
fooling ourselves, and doing discussions that really have no meaning or
purpose. I really hope this is not the case - -although, I must admit,
despair often does arises that it may actually may be the case.
parminder
>
>
>
>
>
>
>
>
>
>
>
>
>
> *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
> <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
> <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=>
>
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> <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) . ____
> > 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.
>
>
>
>
> _______________________________________________
> Ws2-jurisdiction mailing list
> Ws2-jurisdiction at icann.org
> <mailto:Ws2-jurisdiction at icann.org>
> <mailto:Ws2-jurisdiction at icann.org
> <mailto:Ws2-jurisdiction at icann.org>>
>
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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>
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> ____
>
> ____
>
> __ __
>
>
> _______________________________________________
> Ws2-jurisdiction mailing list
> Ws2-jurisdiction at icann.org
> <mailto:Ws2-jurisdiction at icann.org>
> <mailto:Ws2-jurisdiction at icann.org
> <mailto:Ws2-jurisdiction at icann.org>>
>
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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>
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>
>
>
> _______________________________________________
> Ws2-jurisdiction mailing list
> Ws2-jurisdiction at icann.org
> <mailto:Ws2-jurisdiction at icann.org>
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_ws2-2Djurisdiction&d=DwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=auyHgxBmAM7WyiHL_bP3LUU2HGtmpJs6UDz8t8hgsao&s=4T8UxvKRRjGx93vZCnzaETM13dJGuhA7-IdjUEJ9e8E&e=>
>
>
>
> 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
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