[Ws2-jurisdiction] FW: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results

[Mueller, Milton L]

Sorry for responding slowly, I took a holiday over the new year. Presumably we will talk tomorrow but here are some observations


You say OFAC issue is clear but not others.. Others have listed<http://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf> OFAC plus non OFAC issues, which are a lot of groups. But lets say even with OFAC, what do you propose we do about it?

MM: The “others” you cite who have listed problems is your own organization. You may be the only person on the planet who refers to yourself as “others.”
Be that as it may, it doesn’t make sense to jump immediately to “what to do about it.” As many others on this list have said, we are in the problem-collection stage and trying to carefully define what is a problem before we hunt for solutions. I think you have lost sight of the context of this  entire discussion, which was to send out questions to collect information and data about actual problems. You (and Kavouss) have succeeded in delaying this for weeks now with trivial objections.

BTW, I am sure you know the following passage in the GTLD handbook. It is clear that ICANN must and would comply with all US laws, rules and regulations, be it OFAC, intellectual property related, trade sanctions, FFC orders, any new laws not imagined till now, the new hypothetical Trump Act, whatever........................ Is this not an identification of a problem enough?

MM: If you think it is a problem then respond to the request for information with that problem. Put it on the list.  Next….
The current Q4, as I have said, does a lousy job of this.
Sure, but in all this long discussion you havent mentioned what kind of question will do a non-lousy job.

We need to discuss at length how to frame questions about the bigger issues, and as I have said repeatedly, we need to detach that discussion from the smaller jurisdictional issues. Ironically, you are shooting yourself in the foot by preventing that discussion. We cannot have a proper discussion of what kind of question will do a non-lousy job as long as you and a few others insist on rushing through a very broad and not well thought out question. I know why you are doing it, it is because you are afraid that the second round of questions will never happen. I suppose that is theoretically possible. But instead of delaying sending out the first 3 questions, you would better spend your time framing how to solicit meaningful data and answers to the broader questions.

I haven’t heard a convincing argument yet as to why this can’t be done in two phases. The arguments are self-contradictory, people say no one will have the energy to answer two rounds of questions. Apparently there is limitless energy to debate whether the questions should be bundled and what should be in the preamble.

You have surely changed your views 180 degrees over the last 10 years, since when you had advocated, in 2005-06, for a governments negotiated "Framework convention on the Internet". That is ok, but others still do believe that the comity of nation states can achieve much. I dont see your global network of private contracts take up global governance, god forbid!

MM: No, it’s more like 30 degrees. We proposed a framework convention 11-12 years ago. The aftermath of WSIS and the behavior of governments (GAC) in ICANN made it clear that we simply cannot rely on states to come up with an impartial, enabling treaty for IG. Half the states will grab for special privileges that empower them (witness the international organization naming farce in ICANN) and the other half will veto anything that deviates from a comfortable status quo. There’s nothing wrong with adjusting one’s position to reality  - you ought to try it some time!

Milton, are you trying to tell us that if the CCWG recommends that ICANN be given immunity under IOIA  ONLY THEN would or can ICANN get subject to Congress!!!! And you call yourself a professor of policy studies or whatever!! The US congress can, if it so decides, right now eat ICANN with breakfast, with no invitation required,

MM: False. Right now, ICANN is basically free of Congress. The House was unable to muster serious support for blocking the transition. The only way to reassert control would be to 1) pass legislation, or 2) have a debate about applying the IOIA. In case you hadn’t noticed, passing legislation in the US is hard. Getting sufficient majorities in both houses for something that the entire tech industry and civil society opposes, would not be easy.

What you don’t seem to understand is that to invoke IOIA treatment for ICANN basically puts ICANN right back in the hands of Congress. Congress would be required to make a decision about ICANN, which would put it in a position to debate whether ICANN should have those immunities. That would inevitably turn into a debate about how much (not whether) U.S. Congress can exert control over ICANN. Frankly, for anyone who foams at the mouth about US jurisdiction, as you do, to propose a congressional act to apply IOIA to ICANN  is pretty amusing.

and our experiences last September. Indeed, the IOIA was designed with state-based, diplomatic organizations in mind – it applies to the UN, the Holy See and the European Central Bank for example.
Now more than a dozen times I have given the example of International Fertilizer Development Center, as a US non profit under IOIA given immunity, and there are many others.

MM: I’d invite you to take a look at the Congressional debates over some of these applications of IOIA.  In particular, look at what happened with Interpol. Imagine what Senator Cruz would do if ICANN came to Congress hat in hand asking for its blessing for IOIA immunity. You think this is going to “internationalize” ICANN? Really? Something about that position smells like fertilizer.

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