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

Tue Jan 31 23:40:34 UTC 2017

Thanks for your views, Parminder.

I'll look forward to everyone's responses to the hypothetical, the strawman
responses, Parminder's response, and any other responses.  If you are a
participant in this group, it really behooves you to jump into this
discussion.

I won't reply to Parminder's specific response; I'd rather that other
members do that.  However, I have a couple of "big picture" observations
that I'd like to share, and see if people think there is merit in them (or
not).

I think there's an overarching premise or presumption that's being missed
here.  That is the presumption that ICANN should be subject to the rule of
law; more specifically, that ICANN should be subject to antitrust laws and
intellectual property laws and privacy laws and health laws and labor laws
and civil rights laws and anti-corruption laws, etc., etc. -- all of the
laws that make up a body of national law. As far as I know, these are laws
that exist at a national level.  There are treaties and conventions
designed to harmonize the laws of different nations (and to deal with
differences between those laws), but these are not in themselves laws that
would apply to any entity.

It's my understanding that there is no "international law" that would
impose these types of laws, or indeed the rule of law, on any entity such
as ICANN.  As such, it's my understanding that there is no "international
law" that ICANN can be moved to.

On the other hand the treaties and conventions generally bring the laws of
the signatory nations into fairly close harmony or at least coordination.
As a result, the relevant laws of one signatory are not terribly different
than that of another.  Taking treaties, conventions, legal history, etc.,
all together, there is a fairly well-harmonized web of laws of different
nations at the national level.  (There are of course areas where there are
greater differences, and even the smaller differences are not
indistinguishable.)

As mentioned above, the premise is that ICANN should be subject to the rule
of law, and to the types of laws that exist at a national level.  Further,
that adherence to these laws is overall, a positive influence on keeping
ICANN accountable and allowing ICANN to set and operate its policies.
Thus, ICANN needs to be subject to the laws of some country.  I'd be
interested to see how comfortable (or uncomfortable) members of the
subgroup are with that premise.  (As a side note, this seems incompatible
with the idea of "immunity.")

A further premise that implements the prior premise is that US law is a
reasonable set of laws to be used for that purpose, and that US courts are
reasonable venues for the resolution of disputes involving ICANN.  More
specifically, given the mandate of this Subgroup, the premise is that US
law and courts are reasonably well suited to keeping ICANN accountable, and
for the operation of ICANN's policies.  I'd be interested to see how
comfortable (or uncomfortable) members of the subgroup are with this
premise.

ICANN is, of course, subject to the laws of a number of other jurisdictions
where it has a presence, and may be subject to litigation in those
jurisdictions, but we can put that aside for the moment. Similarly, there
may be other jurisdictions that are also reasonable for such use, and each
would have their trade-offs with any other.  But, unless we identify
intractable problems with accountability or ICANN's ability to operate, I'm
not sure whether that's relevant.

In looking at US law (or any other applicable national law), we would need
to consider whether these laws are likely to interfere with efforts
(including those of the multistakeholder community) to hold ICANN
accountable, or with ICANN's ability to set and implement its policies.  On
the other hand, we would also need to consider whether these laws are
likely to protect (and even enhance) efforts to hold ICANN accountable
(including multistakeholder efforts), and to protect ICANN's ability to set
and implement its policies.

In the abstract, without citing any law or any ICANN policy or action, one
could postulate that some national law could interfere with ICANN's
accountability or operation of policies.  That would be true of any set of
laws (even "international laws").  The converse would also be true (that
some national law could protect ICANN's accountability or operation of
policies).  As such, it doesn't seem helpful (in my view) to operate at
that level of abstraction.

Rather, I think it's more helpful to deal with concrete facts -- actual
experiences and specific hypotheticals grounded in fact (specific laws,
specific actions, etc.).  We are making efforts in that direction.  The
review of ICANN's litigation is one such effort.  This effort should give
us useful data on the extent to which US law has been protective of, or
interfered with, ICANN's accountability or operation of policies.  Our
questionnaire is another such effort.

Apologies for going on at length.  I look forward to your thoughts.

Greg

On Tue, Jan 31, 2017 at 12:27 PM, parminder <parminder at itforchange.net>
wrote:

> 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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