[Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Seun Ojedeji
seun.ojedeji at gmail.com
Sat Feb 25 09:43:43 UTC 2017
On Feb 25, 2017 5:21 AM, "parminder" <parminder at itforchange.net> wrote:
Becky, thanks for your response and please see inline.
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.
SO: FWIW, Can we then derive a question from this for the legal to answer?
I think it may be better we have something officially/formerly documented
with regards to this, otherwise we will just keep coming back to it
everytime. It will be good to be able to provide documentation is future to
show that it's a matter that has been discussed and brought to a "consensus
based" conclusion.
Regards
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 <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> <gregshatanipc at gmail.com>
*Cc:* ws2-jurisdiction <ws2-jurisdiction at icann.org>
<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 <%2B1%20%28202%29%20547-0660> <
tel:+1%20202-547-0660 <+1%20202-547-0660>>____
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tel:+1%20202-329-9650 <+1%20202-329-9650>>____
VOIP: +1 (202) 738-1739 <%2B1%20%28202%29%20738-1739> <
tel:+1%20202-738-1739 <+1%20202-738-1739>>____
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>____
__ __
*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 <%2B1%20%28202%29%20547-0660> <
tel:+1%20202-547-0660 <+1%20202-547-0660>>____
M: +1 (202) 329-9650 <%2B1%20%28202%29%20329-9650> <
tel:+1%20202-329-9650 <+1%20202-329-9650>>____
VOIP: +1 (202) 738-1739 <%2B1%20%28202%29%20738-1739> <
tel:+1%20202-738-1739 <+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=>
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>____
My PGP Key:
https://keys.mailvelope.com/pks/lookup?op=get&search=
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<https://keys.mailvelope.com/pks/lookup?op=get&search=
0x9A830097CA066684
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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>] *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 <%2B1%20%28202%29%20547-0660> <
tel:+1%20202-547-0660 <+1%20202-547-0660>>____
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VOIP: +1 (202) 738-1739 <%2B1%20%28202%29%20738-1739> <
tel:+1%20202-738-1739 <+1%20202-738-1739>>____
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>____
__ __
*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 <%2B1%20%28202%29%20547-0660> <
tel:+1%20202-547-0660 <+1%20202-547-0660>>____
M: +1 (202) 329-9650 <%2B1%20%28202%29%20329-9650> <
tel:+1%20202-329-9650 <+1%20202-329-9650>>____
VOIP: +1 (202) 738-1739 <%2B1%20%28202%29%20738-1739> <
tel:+1%20202-738-1739 <+1%20202-738-1739>>____
www.redbranchconsulting.com
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>____
My PGP Key:
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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>] *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
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