[Ws2-jurisdiction] Case summary - 2 drafts for your review

[Mueller, Milton L]

Paul, Mathieu:
There is a deeper reason why the specific decision from the Texas court is irrelevant.
That litigation pertained to one thing and one thing only: the decision of the NTIA to relinquish control of the IANA contract. That is done. Over. Finished. Whatever happens or doesn't happen because of US jurisdiction in the future, it won't be about that issue. There is no way for that issue to be relitigated in the future. It is of course possible for US government to try to assert control over ICANN, or interfere with ICANN, in new ways. But that specific issue - whether the US Commerce Department NTIA has the authority to terminate the IANA contract - cannot ever be salient again, because it has already terminated the IANA contract.

From: Paul Rosenzweig [mailto:paul.rosenzweig at redbranchconsulting.com]
Sent: Saturday, January 28, 2017 4:43 PM
To: 'Mathieu Weill' <mathieu.weill at afnic.fr>; Mueller, Milton L <milton at gatech.edu>; ws2-jurisdiction at icann.org
Subject: RE: [Ws2-jurisdiction] Case summary - 2 drafts for your review

That makes sense.  My concern however with a discussion of "potential impact" is that it then becomes a bit subjective.  What is the "impact" of DotAfrica?  Is it a "small bump in the road" or a "major hurdle" or somewhere in between?  How you characterize it depends I think on where you sit.

Might I suggest a slight modification - instead break this down in a slightly different way that restricts itself to factual development:

1)      What relief was requested by the plaintiff from ICANN (or ICANN from defendant if ICANN was a plaintiff)?
2)      What relief, if any, was granted to the plaintiff?

The first of those gives us a good measure of "potential impact" by identifying what was asked for in the actual case - and allows us to avoid speculating about other collateral impact.  The second, of course, defines actual impact since it is the relief granted that has the impact.

And then, to capture Milton's point, but in an objective way (since frivolity is also in the eye of the beholder), we might add one other question:

3)      Did the Court in its decision offer any conclusion as to the lack of merit/frivolity of the plaintiff's claim?

In other words, here I want to ask not what I thought of the case, but what the decision maker did - did the Judge, for example, call it frivolous?  Did the arbiter award costs to ICANN because the claim was "baseless"?  That sort of thing

Paul

Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com<mailto:paul.rosenzweig at redbranchconsulting.com>
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From: Mathieu Weill [mailto:mathieu.weill at afnic.fr]
Sent: Friday, January 27, 2017 7:34 PM
To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com<mailto:paul.rosenzweig at redbranchconsulting.com>>; Mueller, Milton L <milton at gatech.edu<mailto:milton at gatech.edu>>; ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
Subject: RE: [Ws2-jurisdiction] Case summary - 2 drafts for your review

Thanks for raising this point Paul,

This is indeed a question that I faced trying this out. We need an approach that is consistent across all cases, and as you point out, even when cases may not end up being decided against ICANN, there can be an effect.

So my suggestion is to assess :
-          Whether there was actually an impact
-          Whether there would have been an impact if the case had been decided, or would be decided in the future, against ICANN (potential impact)

It's going to be another phase of our work to determine which lessons we draw from the cases, and whether we believe it's appropriate to take these potential impacts into account within the work of our group. If, by then, we want to exclude the "potential impact" sections, we'll do so, but at the data collection level, when we fill the form, I think we should include this piece of information.

Best
Mathieu

De : Paul Rosenzweig [mailto:paul.rosenzweig at redbranchconsulting.com]
Envoyé : vendredi 27 janvier 2017 17:01
À : 'Mueller, Milton L'; 'Mathieu Weill'; ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
Objet : RE: [Ws2-jurisdiction] Case summary - 2 drafts for your review

I agree with Milton.  By contrast, for example, the DotAfrica case is relevant as it reflects an instance where the legal system did have an effect on ICANN's actions (that's a statement of fact - not an assertion that the effect was good or bad).  The question in the end will be what those effects are; whether they are adverse; and if changing to another jurisdiction would make the situation worse or better

Paul

Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com<mailto:paul.rosenzweig at redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
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www.redbranchconsulting.com<http://www.redbranchconsulting.com/>
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From: Mueller, Milton L [mailto:milton at gatech.edu]
Sent: Friday, January 27, 2017 10:36 AM
To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com<mailto:paul.rosenzweig at redbranchconsulting.com>>; 'Mathieu Weill' <mathieu.weill at afnic.fr<mailto:mathieu.weill at afnic.fr>>; ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
Subject: RE: [Ws2-jurisdiction] Case summary - 2 drafts for your review

I have to agree mostly with Paul on this:

In the "Effect on our Work" section I wonder at how you handled it.  For me, the answer in the Arizona case would be "none" since the suit was dismissed early.  To be sure you write of its potential effect - which had it succceded would have been significant.  But that gives too much credit to the filing of a suit doesn't it?  Shouldn't our inquiry be whether or not the exisiting legal system adequately protects our work from non-meritorious interference.  And so, shouldn't the Arizona case be a good sign that, at least in this case, the court reached a result that had no impact?

That case was a desperation delaying act that had no real legal basis, which the court quickly recognized. Apparently the plaintiffs realized it was groundless too  - which is why they abandoned the case after failing to get the injunction. In others words, this was an attempt to use legal procedure to delay an outcome until the political situation changed, not a challenge based on the specific characteristics of US or Calif law. Unless one can argue that the U.S. jurisdiction is uniquely prone to these kinds of tricks working (and here I leave it to people with more comparative law experience than me), I don't think the case is relevant.
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