[Ws2-jurisdiction] Blog post on ICANN's jurisdiction
Greg Shatan
gregshatanipc at gmail.com
Tue Feb 28 16:32:01 UTC 2017
All,
Jorge touches on an important point in terms of our working method: "immunities
and privileges are something to be discussed if need be *under possible
remedies to identified problems." *
That reflects the working method adopted by the group. Nonetheless, this
discussion of "immunity" has cropped up several times before the Subgroup
has identified any problem supported by the Subgroup that calls for
immunity as a possible remedy. Sometimes (as now) these discussions are at
significant length and seem to take up much of the working energy of the
Subgroup.
At this point, we can do one of two things:
(1) *Suspend any further discussion of immunity unless and until the
Subgroup identifies a problem that calls for immunity as a plausible remedy
to that problem*. Problems can be "identified" from items in any of
several sources: proposals from participants in the Subgroup, Questionnaire
responses, the review of ICANN's litigation, or possibly ICANN Legal's
responses to our questions. An item should not be considered an
"identified problem" until the Subgroup supports that designation (i.e., an
item is proposed and discusse and the Subgroup supports designating it
as a problem
for purposes of this Subgroup).
(2) *Directly consider and resolve the threshold question of whether
immunity can and should be a remedy that this Subgroup would recommend. *This
question needs to be answered before we move, if at all, to "subsidiary
questions" such as "Is immunity available to ICANN?", "How does one get
such immunity?", "What does such immunity actually cover?", "What are the
consequences of such immunity?", "Can this immunity be customized in some
fashion?", "Can such immunity be waived by ICANN (either on a case-by-case
basis or generally)?", "What are the conseqences of such waiver?," "How can
such immunity be challenged or revoked?", "How would these questions be
answered differently under the laws of the US and under the laws of a
selected set of other jurisdiction?", etc. *If we decide now that immunity
is not a remedy this Subgroup would recommend, these other questions do not
need to be considered. *If we decide that immunity is a remedy this
Subgroup would potentially recommend, then we can seek answers to those
subsidiary questions in an organized process of the Subgroup, including
requesting legal advice.
Option 1 is one that we've tried, but it has not succeeded (at least not
for very long). (As Mark Twain once said, "Quitting smoking is easy. I've
done it hundreds of times."). If we decide to re-try Option 1, then it will
need to be strictly adhered to (and enforced, if need be).
Option 2 is one we have flirted with but have never fully committed to (due
to attempts to adhere to Option 1, on the one hand, and the tendency to mix
this threshold question in with the subsidiary questions, on the other
hand). Escalating these email threads and informal discussions to a
focused Subgroup discussion and resolution of just the threshold question
could greatly benefit this Subgroup. If we can answer this threshold
question now, then we can either (if we answer "no") put the immunity
question to rest for this Subgroup; or (if we answer yes), we can suspend
further discussions of the "subsidiary questions" until we identify a
problem that calls for immunity as a plausible remedy.
Either way, we will be able to move past the immunity question and devote
our current working energy to the litigation review and analysis, the
Questionnaire response review, identification and discussion of potential
problems for consideration by the Subgroup, and consideration of the
answers from ICANN Legal (when received).
*Given how far and how often we have gone down the path of the "immunity
discussion" in some form, and since we may actually be honing in on an
answer to this threshold question, I suggest that the Subgroup strongly
consider Option 2.*
I look forward to your thoughts.
Greg
On Tue, Feb 28, 2017 at 3:42 AM <Jorge.Cancio at bakom.admin.ch> wrote:
> Dear Becky,y
>
>
>
> Apart from possible initial discussion during the very early Frankfurt F2F
> meetings (February 2015… I wasn’t in Frankfurt, but I don’t recall that
> this issue had been really discussed in depth and less excluded from the
> ws2 work on “jurisdiction”), I guess we would need some clear basis in the
> work stream 1 recommendations, which are the ones which laid down our
> community-wide agreements and defined the scope of work for work stream 2.
>
>
>
> My feeling is that no decision to exclude was taken, that we still have to
> look into potential problems (on the basis of the ongoing fact-finding
> exercises) and that immunities and privileges are something to be discussed
> if need be under possible remedies to identified problems.
>
>
>
> Kind regards
>
>
>
> Jorge
>
>
>
> *Von:* ws2-jurisdiction-bounces at icann.org [mailto:
> ws2-jurisdiction-bounces at icann.org] *Im Auftrag von *Burr, Becky
> *Gesendet:* Montag, 27. Februar 2017 18:51
> *An:* Seun Ojedeji <seun.ojedeji at gmail.com>
> *Cc:* ws2-jurisdiction <ws2-jurisdiction at icann.org>
> *Betreff:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
>
>
>
> Sure, will have to go back through the F2F meeting transcript, but I think
> the discussion took place in the first F2F meeting in Frankfurt in January
> 2015, with one of the outside experts who was pushing the idea
>
>
>
> *From:* Seun Ojedeji [mailto:seun.ojedeji at gmail.com
> <seun.ojedeji at gmail.com>]
> *Sent:* Monday, February 27, 2017 11:38 AM
> *To:* Burr, Becky <Becky.Burr at neustar.biz>
> *Cc:* Mueller, Milton L <milton at gatech.edu>; ws2-jurisdiction <
> ws2-jurisdiction at icann.org>; parminder <parminder at itforchange.net>
> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
>
>
>
> On 27 Feb 2017 22:26, "Burr, Becky" <Becky.Burr at neustar.biz> wrote:.
>
> My larger point remains – this question (re privileges and immunities) was
> asked and answered in WS1.
>
> SO: I for one would appreciate a reference to this for the record so I can
> confirm if we are talking about similar context. Would you mind providing a
> reference where the question and response was documented Becky?
>
>
>
> Thanks
>
>
>
> *From:* ws2-jurisdiction-bounces at icann.org [mailto:
> ws2-jurisdiction-bounces at icann.org] *On Behalf Of *Mueller, Milton L
> *Sent:* Saturday, February 25, 2017 10:06 AM
> *To:* parminder <parminder at itforchange.net>; ws2-jurisdiction at icann.org
>
>
> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction
>
>
>
>
>
>
>
> >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.
>
> So in the name of making ICANN more independent of the US government, you
> want to subject it to what would undoubtedly be a politically contentious
> and years-long process of legislation by the U.S. Congress
> (Republican-dominated) and would require the agreement a President whose
> platform vowed to never let ICANN be free of the U.S. government.
>
>
>
> Really smart.
>
>
>
> Does the word “backfire” have any meaning to non-Americans? If not, check
> out definition #2 here:
> https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=backfire+definition&*
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.google.com_webhp-3Fsourceid-3Dchrome-2Dinstant-26ion-3D1-26espv-3D2-26ie-3DUTF-2D8-23q-3Dbackfire-2Bdefinition-26-2A&d=DwMFAg&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=lFzxyNZsqPq3dQCf2tQLLZwXRtWJNr01a16Lb6Zo_d8&s=2vjNdjcujIA_f13AAKVmN8mF_RYRvQZJ-bBgxoQ4Dd8&e=>
>
>
>
>
>
> Dr. Milton L. Mueller
>
> Professor, School of Public Policy
>
> Georgia Institute of Technology
>
>
>
>
>
>
>
> 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 <tel:+1%20202-547-0660 <+1%20202-547-0660>>____
>
> M: +1 (202) 329-9650 <tel:+1%20202-329-9650 <+1%20202-329-9650>>____
>
> VOIP: +1 (202) 738-1739 <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=>
> <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>]
> *Sent:* Sunday, February 12, 2017 12:54 AM
> *To:* Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>>;
> ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org>
> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction____
>
> __ __
>
> __ __
>
> On Saturday 11 February 2017 10:54 PM, Paul Rosenzweig wrote:____
>
> As we have repeatedly noted, the exact same thing is true of
> ICANN’s being subject to the laws of India, France and any other
> place it does business. ____
>
>
> Paul, and you have missed the repeated response that of course this
> is not true (and you know it) -- the implication of jurisdiction of
> incorporation of a body, and its impact on its working, is of a
> completely different order than that of the jurisdictions where it
> may merely conduct some business. Do you refute this proposition?
>
> Would you in your professional life advice, say, a business
> incorporated in Germany but with worldwide business footprint that
> the application of German jurisdiction and laws on it -- and the
> real life implications of such application -- is more or less the
> same as application of jurisdiction and laws of all counties where
> it may conduct any business at all? I look forward to a clear and
> unambiguous response to this. Thanks.
>
> If indeed we are to keep falsifying such basic facts, which everyone
> knows well, and base our positions on that, there is no way we can
> go anywhere with this sub group. We may as well close it up and let
> the rapporteur write whatever report he may want to forward. No use
> wasting time here in trying to "prove" and reprove and reprove basic
> universally known legal and political facts.
>
>
> ____
>
> Your persistence in arguing a strawman Paraminder puts me in
> mind of Amartya Sen.____
>
>
> A perceptive book he wrote, but also speaks of Indian humility and
> self-deprecation... Wonder why no one ever wrote "The Hegemonic
> American"...
>
> parminder
>
>
> ____
>
> ____
>
> Paul Rosenzweig____
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>____
>
> O: +1 (202) 547-0660 <tel:+1%20202-547-0660 <+1%20202-547-0660>
> >____
>
> M: +1 (202) 329-9650 <tel:+1%20202-329-9650 <+1%20202-329-9650>
> >____
>
> VOIP: +1 (202) 738-1739 <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=>
> <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>] *On Behalf Of
> *parminder
> *Sent:* Saturday, February 11, 2017 8:46 AM
> *To:* ws2-jurisdiction at icann.org <mailto:
> ws2-jurisdiction at icann.org>
> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's
> jurisdiction____
>
> ____
>
> Nigel,____
>
> Thanks for your views. One gets faced by two kinds of arguments
> in favour of keeping the jurisdictional status quo -- which are
> mutually exclusive.____
>
> (1) ICANN is somehow not subject to the whole range of US law
> and executive powers, as any other US organisations is - or at
> least it is somehow felt that US law and executive power will
> never apply itself over ICANN functioning. ____
>
> (2) As you argue, ICANN is indeed subject to all US laws and
> powers, which might indeed be applied over it as necessary, but
> this is a good and a desirable thing. ____
>
> As we have no move forward at all, we must do it in stages and
> remove some arguments off the table which we can mutually agree
> to be untenable. So can we now agree that the view (1) above is
> simply untrue and naively held by those who forward it. ____
>
> We can now move to (2). First of all, this means that indeed US
> law and executive can impinge upon ICANN's policy implementation
> whenever it feels it valid to do so in pursuance of legitimate
> US public interest. Meaning, If ICANN makes a policy and does
> its implementation which is not in-accordance with US law or
> legitimate US executive will, they can "interfere" can cause
> those actions to be rolled back on the pain of state's coercive
> action. This can be for instance regarding how and what
> medicines and health related activities are considered ok by the
> concerned US regulator. (Similar examples can be thought of in
> practically every sector). Are you with me till here, because I
> think I am only making logical deduction over what you seem to
> agree with?____
>
> If so, this indeed establishes as a fact that US jurisdiction
> can, as required, impinge upon (which seen from another vantage
> is same as, interfere with) ICANN policies and policy
> implementation.____
>
> Which makes the entire exercise of our questionnaire seeking
> whether it can so happen rather needless. It of course can. ____
>
> Lets then not argue or fight over that terrain, where we have
> this agreement, about how law and executive power operates vis a
> vis organisations subject to their jurisdiction. ____
>
> That brings us to another terrain - that, as you argue, and
> others have here, that it is right, appropriate and needed that
> US law and legitimate executive power impinges upon ICANN
> functioning as and when required, becuase it is important to
> subject everything to the rule of law (and in your and many
> other people's views, ICANN can practically ONLY be subject to
> rule of US's law).____
>
> I am happy to discuss this part as long as we do not keep
> drifting back to the earlier one whereby there really seems to
> be an agreement among most of us that US law and legitimate
> executive power can indeed impinge upon or "interfere with"
> ICANN's policy or policy implementation work (even if many
> consider such interference as being good for ICANN and public
> interest) . ____
> > of the country of (US) on ICANN is same with that of other
> countries (including the ones hosting her regional hubs) because that is
> what I think Paul may be implying here.
>
> As a simple example is a Trump travel Ban and the OFAC stuff compared to
> if a travel Ban is placed on Turkey where ICANN has a hub. The former
> would have global effects on ICANN than the latter. I for one would be
> glad if there can be immunity/exemption for ICANN(used in literary
> terms) in such scenarios
>
> Regards
>
> Sent from my LG G4
> Kindly excuse brevity and typos
>
> On Feb 13, 2017 7:59 PM, "Paul Rosenzweig"
> <paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>> wrote:
>
> Yes, I refute the proposition because it is an alternate fact. Or
> put another way – it is wrong.____
>
> __ __
>
> The true fact is simple – by virture of doing business in France,
> ICANN is subject to French law. France’s privacy authorities might,
> for example, attempt to get ICANN to follow their right to be
> forgotten. They would fail, I think, but that proposition is no
> different in kind than the idea of US antitrust jurisdiction over
> ICANN which will not change one iota if ICANN changes its
> jurisdiction of incorporation. As I have said before, the only way
> in which place of jurisdiction matters significantly (or to use your
> words is of a “different order” is regarding law relating to
> corporate incorporation and governance. As to that – e.g. the
> implementation of ICANN’s actual corporate governance – it would
> change significantly if ICANN moved. But, as others have also
> noted, the corporate law of California is vital to ICANN’s current
> structure.____
>
> __ __
>
> As for your question about my professional life it is amusing –
> because that is indeed what I do for a living and I have, in fact,
> given exactly that advice to German businesses with operations in
> the United States. I tell them that if they want to avoid American
> law (mostly law relating to cybersecurity) the only way to do so is
> to avoid having a business presence in the US. If they want to
> forgo the market completely they can do so to avoid American law.
> But otherwise they cannot. And, I tell them the exact same thing
> about French and Indian law as well. In short, I do this for a
> living and yes, I say exactly the same thing to paying clients.____
>
> __ __
>
> It is not me who is “falsifying facts” Paraminder. You are making
> assertions that have no actual basis in any law that I know of.
> Repeatedly asserting them as “facts” does not make them so____
>
> __ __
>
> Paul____
>
> __ __
>
> Paul Rosenzweig____
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>____
>
> O: +1 (202) 547-0660 <tel:+1%20202-547-0660 <+1%20202-547-0660>>____
>
> M: +1 (202) 329-9650 <tel:+1%20202-329-9650 <+1%20202-329-9650>>____
>
> VOIP: +1 (202) 738-1739 <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=>
> <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>]
> *Sent:* Sunday, February 12, 2017 12:54 AM
> *To:* Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>>;
> ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org>
> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's jurisdiction____
>
> __ __
>
> __ __
>
> On Saturday 11 February 2017 10:54 PM, Paul Rosenzweig wrote:____
>
> As we have repeatedly noted, the exact same thing is true of
> ICANN’s being subject to the laws of India, France and any other
> place it does business. ____
>
>
> Paul, and you have missed the repeated response that of course this
> is not true (and you know it) -- the implication of jurisdiction of
> incorporation of a body, and its impact on its working, is of a
> completely different order than that of the jurisdictions where it
> may merely conduct some business. Do you refute this proposition?
>
> Would you in your professional life advice, say, a business
> incorporated in Germany but with worldwide business footprint that
> the application of German jurisdiction and laws on it -- and the
> real life implications of such application -- is more or less the
> same as application of jurisdiction and laws of all counties where
> it may conduct any business at all? I look forward to a clear and
> unambiguous response to this. Thanks.
>
> If indeed we are to keep falsifying such basic facts, which everyone
> knows well, and base our positions on that, there is no way we can
> go anywhere with this sub group. We may as well close it up and let
> the rapporteur write whatever report he may want to forward. No use
> wasting time here in trying to "prove" and reprove and reprove basic
> universally known legal and political facts.
>
>
> ____
>
> Your persistence in arguing a strawman Paraminder puts me in
> mind of Amartya Sen.____
>
>
> A perceptive book he wrote, but also speaks of Indian humility and
> self-deprecation... Wonder why no one ever wrote "The Hegemonic
> American"...
>
> parminder
>
>
> ____
>
> ____
>
> Paul Rosenzweig____
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>____
>
> O: +1 (202) 547-0660 <tel:+1%20202-547-0660 <+1%20202-547-0660>
> >____
>
> M: +1 (202) 329-9650 <tel:+1%20202-329-9650 <+1%20202-329-9650>
> >____
>
> VOIP: +1 (202) 738-1739 <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=>
> <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>] *On Behalf Of
> *parminder
> *Sent:* Saturday, February 11, 2017 8:46 AM
> *To:* ws2-jurisdiction at icann.org <mailto:
> ws2-jurisdiction at icann.org>
> *Subject:* Re: [Ws2-jurisdiction] Blog post on ICANN's
> jurisdiction____
>
> ____
>
> Nigel,____
>
> Thanks for your views. One gets faced by two kinds of arguments
> in favour of keeping the jurisdictional status quo -- which are
> mutually exclusive.____
>
> (1) ICANN is somehow not subject to the whole range of US law
> and executive powers, as any other US organisations is - or at
> least it is somehow felt that US law and executive power will
> never apply itself over ICANN functioning. ____
>
> (2) As you argue, ICANN is indeed subject to all US laws and
> powers, which might indeed be applied over it as necessary, but
> this is a good and a desirable thing. ____
>
> As we have no move forward at all, we must do it in stages and
> remove some arguments off the table which we can mutually agree
> to be untenable. So can we now agree that the view (1) above is
> simply untrue and naively held by those who forward it. ____
>
> We can now move to (2). First of all, this means that indeed US
> law and executive can impinge upon ICANN's policy implementation
> whenever it feels it valid to do so in pursuance of legitimate
> US public interest. Meaning, If ICANN makes a policy and does
> its implementation which is not in-accordance with US law or
> legitimate US executive will, they can "interfere" can cause
> those actions to be rolled back on the pain of state's coercive
> action. This can be for instance regarding how and what
> medicines and health related activities are considered ok by the
> concerned US regulator. (Similar examples can be thought of in
> practically every sector). Are you with me till here, because I
> think I am only making logical deduction over what you seem to
> agree with?____
>
> If so, this indeed establishes as a fact that US jurisdiction
> can, as required, impinge upon (which seen from another vantage
> is same as, interfere with) ICANN policies and policy
> implementation.____
>
> Which makes the entire exercise of our questionnaire seeking
> whether it can so happen rather needless. It of course can. ____
>
> Lets then not argue or fight over that terrain, where we have
> this agreement, about how law and executive power operates vis a
> vis organisations subject to their jurisdiction. ____
>
> That brings us to another terrain - that, as you argue, and
> others have here, that it is right, appropriate and needed that
> US law and legitimate executive power impinges upon ICANN
> functioning as and when required, becuase it is important to
> subject everything to the rule of law (and in your and many
> other people's views, ICANN can practically ONLY be subject to
> rule of US's law).____
>
> I am happy to discuss this part as long as we do not keep
> drifting back to the earlier one whereby there really seems to
> be an agreement among most of us that US law and legitimate
> executive power can indeed impinge upon or "interfere with"
> ICANN's policy or policy implementation work (even if many
> consider such interference as being good for ICANN and public
> interest) . ____
>
> Your only problem with immunity seem to come up with regard to
> criminally fraudulent activities. You give the examples of IOC
> and FIFA but I have not found they having any special criminal
> immunities. I may not have looked up well, but did they? Were
> they not finally raided by both Swiss and US authorities. On the
> other hand there are many international organisations with legal
> immunities that have been gooing great global public interest
> work without corruption. Interpol hasnt started to take money to
> make international warrants disappear, not, more humbly, the
> International Fertilizers Development Centre, immunised under
> the relevant US Act, and which enters into contracts worth
> millions every years for globally distributed projects, has been
> known to do so....
>
> (FIFA and IOC become corrupt because of commercial thinking
> completely overpowering public service ethics -- and if ICANN
> becomes so it will also be ore likely becuase of this reason.
> But et us not get distracted. )
>
> And if indeed we are so concerned about ICANN's abuse of power
> and possible frauds and corruption, we should have let a
> stronger and more agile community accountability mechanism get
> established, like the membership based one, and with lower
> thresholds of triggering community action... That is where the
> mistake was made, and can still be corrected down the line. Do
> not throw the world at the mercy of US law and executive action
> for this purpose, especially when it related to to an
> infrastructure which today underpins almost every social system.
> This is not just some sports. (No hurt intended to sports fans,
> I being one.)
>
> parminder
>
>
>
>
> ____
>
> On Saturday 11 February 2017 02:16 PM, Nigel Roberts wrote:____
>
>
>
>
> ____
>
> and innumerable others. In the circumstances, the real
> waiver across all
> sectors and laws would be seek immunity under the US
> International
> Organisations Immunity Act. Would you not prefer this
> route? If not, why
> so? ____
>
>
> Because I do not want ICANN to have immunity.
>
> I have been involved in this community since before it was
> called 'ICANN', including the gTLD-MoU and the IFWP.
>
> I have seen ICANN behave as an autocrat robber baron and
> deprive people of their property.
>
> Fortunately, we have made great strides since then.
>
> Accountability work, between 2003 (in the case of ccTLDs) up
> to last years' transition, as well as the fact that, both
> staff and Board now have personal trust, that was totally
> absent 15 years ago.
>
> But both organisations and personnnel can change.
>
> Institutional immunity leads to corruption. I do not want
> ICANN to become a FIFA, or IOC.
>
> And the recent .AFRICA case shows, the checks and balances
> of the US judicial system appear to work reasonably well (I
> personally remain uneasy about the covenant of immunity but
> I expect you have no problem with that).
>
> I trust this explains why some people - and I am one - may
> have a diametrically opposed view to yours when it comes to
> ICANN immunity.
>
>
>
> _______________________________________________
> Ws2-jurisdiction mailing list
> Ws2-jurisdiction at icann.org <mailto:Ws2-jurisdiction at icann.org>
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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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=>
> <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=>
> >
>
>
>
> _______________________________________________
> Ws2-jurisdiction mailing list
> 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 when it comes to
> ICANN immunity.
>
>
>
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--
*Greg Shatan *C: 917-816-6428
S: gsshatan
Phone-to-Skype: 646-845-9428
gregshatanipc at gmail.com
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