[Ws2-jurisdiction] Hypothetical #1 for Review and Discussion by Subgroup

[parminder]

Dear Greg

Thanks for your document with the hypothetical # 1 and its "Initial
strawman responses" which I understand are just to spur a discussion.

First of all I must mention that I consider this hypothetical question
as the most important one that we are faced with.

Next, I will comment on the strawman responses, before I propose my own
response to the hypothetical.

The strawman responses are premised on considerations that (1) ICANN
already works in manner that is observant of (the whole gamut of) US
law, (2) a rightful court judgement would simply further attune ICANN to
US law, including changing its practices and policies accordingly in the
future.

These two considerations are taken in the "strawman responses" to be
good, positive things. Herein lies the crux of the jurisdiction issue,
and the nature of main difference between who support the status quo and
those who call for changes that ensures release of ICANN from US
jurisdiction.

Those supporting status quo seem to see nothing wrong with ICANN working
and adjusting its policies to the full range of US law, whether about
foreign sanctions or anti trust or intellectual property, or privacy, or
health or other sectoral laws and regulation (including legitimate
orders of regulatory agencies like FTC, FCC, FDA, and so on). But that
is precisely the problem for the rest of us. As I said a few times here,
in democracy, there can be "no legislation/ regulation without
representation". That is the key issue here. And this can only be
resolved by either moving ICANN to international law or at least get for
it jurisdictional immunity under US International Organisations
Immunities Act .

Now let me provide my response to the hypothetical # 1, which is

    In the following hypothetical, What are the influences of ICANN’s
    existing jurisdiction(s) relating to resolution of disputes (i.e.,
    governing law and venue) on (1) the actual operation of ICANN’s
    policies, (2) accountability mechanisms and (3) the resolution of
    disputes?

    A plaintiff initiates litigation, challenging ICANN's actions (or
    inactions) involving actual operation of its policies – like
    delegation of a gTLD, and/or acceptance of certain terms of registry
    operation, on the basis that plaintiff (or a class including
    plaintiff) would be injured and that ICANN’s actions or inactions
    are in violation of law. The court finds that ICANN’s actions or
    inaction violate the law and issues an order requiring ICANN to
    change its actions.

My response

Following such an adverse decision, ICANN will have no option other than
to change its policies and/ or operation of its policies as per the
court's directions. (This will also apply equally to a US regulator's
directions.) But such an act makes a mockery of ICANN's status as global
governance body (for key Internet resources) becuase it will be forced
to undertake its "global" governance role as per the laws of one
country. This should be unacceptable in the 21st century, from a global
democratic standpoint. It is certainly unacceptable to non US countries
and citizens. Do remember that this is a violation of the human right to
equally and democratically participate in any form of governance that
one is subject to (paraphrased reading of Article 21 of the UDHR and its
elaboration in the International Covenant on Civil  and Political
Rights). Such changing of its policies and/or implementation of policies
by ICANN as applied to the whole world on the basis of the laws of one
country thus violates the human right to democratic governance.

parminder



On Saturday 28 January 2017 12:27 AM, Greg Shatan wrote:
> All,
>
> At the last meeting of the Jurisdiction Subgroup, we launched into
> discussion of the first hypothetical proposed in Section C of the
> "Influence of Jurisdiction" document.  As a result of the discussion,
> suggestions were made of ways to revise the hypothetical.  Those are
> currently marked in the Google doc.
>
> Discussion and analysis of the hypothetical was somewhat limited on
> the call, as many participants did not feel ready to discuss the
> particular hypothetical.  As a result, it was decided to circulate
> this hypothetical and future hypotheticals (or actual occurrences)
> well in advance of the meetings.  This allows time for consideration,
> preparation, discussion on the list, etc.
>
> The attached PowerPoint contains Hypothetical #1 (revised as
> discussed).  I've also provided a format for our answers, along with
> some "strawman" answers (most of which already appear in some form in
> the Google doc).  These strawman answers are intended to spur
> discussion, and should not be taken as final answers; nor should these
> answers serve to limit discussion.
>
> I will put the text into an MS Word doc and a Google Doc soon.  Please
> begin (or continue) your consideration of this hypothetical by
> replying to this email.  
>
> Thank you!
>
> Greg
>
>
>
>
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