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

[parminder]

On Thursday 05 January 2017 11:02 PM, Mueller, Milton L wrote:
>
> 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.”
>

Milton, your persistence with misrepresentations, lies and insulting
personal remarks is reaching a limit that would make the work of this
group quite difficult. This may be something the Chairs would want to
look into. Meanwhile, you say that "others" in the above reference to
those who made the quoted statement
<http://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf>
refers to just my organisation, or worse, to me alone, when the link to
"Others have listed" above directly takes to you a document signed by
practically every civil society organisation in India active in IG,
barring maybe one or two. Plus, it has two of largest global networks of
civil society organisations active in IG, Association of Progressive
Communications and Just Net Coalition whose membership, each consisting
of dozens of global and national organisations, can be seen
respectively, here <https://www.apc.org/en/members> and here
<http://justnetcoalition.org/jnc-members> . When you call a statement
prepared and signed by all these, maybe close to a hundred
organisations, as being a statement by me, and none else, I simply do
not know what to make or do about it. Sorry, but are you out of your mind!

What you say below is not much more rationale - things like, you
actually want the question 4 in some form to go out but have some
superior strategies that, apart from being un-understandable, are
apparently quite opposed to all those who have actually proposed and
supported it (that btw is quite condescending) ; that it is some outside
act that would make ICANN subject to congress and it seemingly is not so
as things are now (a simple private member's bill will take ICANN to
congress; and I also know pretty well how easy or difficult is it to
pass legislation in the congress, you may want to follow how the recent
one on removing foreign sovereign immunity (JASTA) was passed super
quickly despite President's initial veto); and are making your case out
of expectations of what Senator Cruz will probably do in the Congress,
but , now that you broach the subject, I dare say what I did not want
to, nothing about what President Trump may do in the White House, with a
republican congress and senate.......

I have no intention to play this personalised ping pong with you any
further. You are not making any stable rational arguments. However, if
any such does come from you, as from anyone else, I will surely engage.

parminder

> 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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