[Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Nigel Roberts
nigel at channelisles.net
Sat Feb 25 14:08:52 UTC 2017
Ladies and Gentlemen
Although the haste of the pre-transition days has gone, I think we
should still be proportionate in spending the corporations legal budget.
It is entirely a waste of money, in my opinion, to instruct lawyers to
inform on a proposition which is objected to.
It is irrelevant WHETHER ICANN may waive immunity.
ICANN *SHOULD NOT HAVE* immunity.
On 25/02/17 13:51, Kavouss Arasteh wrote:
> Dear Grec
> I fully agree with Seun.
> We must raise this question legally and ask for a NEUTRAL LEGAL VIEW
> There is désagrément on the matter.
> Several person said, there is no possibility to Immune ICANN from US LAW
> Others said .it has had a precedence.
> This exchange of correspondence is totally counter productive and must
> be resolved properly.
> I terrefort request Greg, to formulate the question/ view on the matter
> and after consultation with Co-Chair ask for an international Neutral
> Legal View .
> Regards
> Kavouss
>
> 2017-02-25 10:43 GMT+01:00 Seun Ojedeji <seun.ojedeji at gmail.com
> <mailto:seun.ojedeji at gmail.com>>:
>
> On Feb 25, 2017 5:21 AM, "parminder" <parminder at itforchange.net
> <mailto: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>
>> [mailto:ws2-jurisdiction-bounces at icann.org
>> <mailto:ws2-jurisdiction-bounces at icann.org>] *On Behalf Of
>> *Seun Ojedeji
>> *Sent:* Tuesday, February 14, 2017 1:43 PM
>> *To:* Greg Shatan <gregshatanipc at gmail.com>
>> <mailto:gregshatanipc at gmail.com>
>> *Cc:* ws2-jurisdiction <ws2-jurisdiction at icann.org>
>> <mailto:ws2-jurisdiction at icann.org>
>> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's
>> jurisdiction____
>>
>> __ __
>>
>> Sent from my LG G4
>> Kindly excuse brevity and typos____
>>
>> __ __
>>
>> On Feb 14, 2017 12:29 PM, "Greg Shatan"
>> <gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com>>
>> wrote:____
>>
>> Seun,____
>>
>> __ __
>>
>> You say that a "Trump travel Ban . . . compared to____
>>
>>
>> if a travel Ban is placed on Turkey where ICANN has a hub.
>> The former
>> would have global effects on ICANN than the latter." ____
>>
>> __ __
>>
>> Can you clarify how a travel ban into the US from a list
>> of countries would "have global effects on ICANN" and a
>> travel ban into Turkey from a list of countries not have a
>> similar type of effect? Is this just because more people
>> will want to travel to ICANN's operations in the US than
>> those in Turkey? ____
>>
>> __ __
>>
>> SO: It's not really because more people "want" to, it's
>> because for ICANN it may be prudent at times to have the
>> meeting in the US. When I say meeting, I am not just referring
>> to the 3 global meetings alone.____
>>
>> __ __
>>
>> Why is it a global effect on ICANN if it only concerns a
>> small number of countries?____
>>
>> __ __
>>
>> SO: Sometime ago I was reading an article mentioning whether
>> I* organisations should cancel subsequent meetings in the US
>> (even though I personally do not think it's worth it to cancel
>> already planned Puerto Rico meeting) but imagine the global
>> effects if such happen. Beyond that such action by US govt
>> also cause unintended(or perhaps unnecessary)
>> consequences/reactions. Like it won't be out of scope for an
>> African govt who is already pissed off with .Africa[1] and
>> second level 2 character to also indicate the ban as an
>> exhibit to drive a point. ____
>>
>> __ __
>>
>> Just checkout how many ICANN related articles that connects to
>> the ban has been published lately so you think similar level
>> of response would have happened globally if the travel ban
>> happened in Turkey? I doubt. So it's not always about the few
>> ban countries, it's about the global reaction.____
>>
>> __ __
>>
>> For clarity if ICANN were incorporated in Turkey and same
>> banned happen, the global effect would have still be similar
>> to that of the US at present. So the point is not that it may
>> not have happened if ICANN was incorporated in Turkey (or
>> Switzerland as Paul puts it) but the point is that it is
>> unfair to say the effects to ICANN ORG/community in both
>> scenarios is the same____
>>
>> __ __
>>
>> Regards____
>>
>> 1. Ofcourse I recognise there is not light at the end of the
>> tunnel.____
>>
>> __ __
>>
>> [Please note that I personally do not support the travel
>> ban, nor do I minimize the effects it has had and
>> continues to have on citizens of those countries.]____
>>
>> __ __
>>
>> Thanks!____
>>
>> __ __
>>
>> Greg____
>>
>> __ __
>>
>>
>> ____
>>
>> *Greg Shatan
>> *C: 917-816-6428 <tel:(917)%20816-6428>
>> S: gsshatan
>> Phone-to-Skype: 646-845-9428 <tel:(646)%20845-9428>
>> 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=>
>>
>> <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) . ____
>> > 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
>>
>>
>
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