[Ws2-jurisdiction] FW: Questions based on Parminder's statements in the last meeting about GAC participation

Thu Mar 9 19:47:48 UTC 2017

Hi Greg,

Thanks for the opportunity to weigh in. I can't speak for other GAC colleagues, but from a Government of Canada perspective, it would not be appropriate to comment on the headquarter choice of a private sector actor.

On a broader point, we certainly appreciate that the issue of jurisdiction is complex and multi-dimensional, which takes time to sift through. Unfortunately, we need to contend with the reality that our time and resources are limited. In the interest of ensuring that we have some consensus recommendations to put forward as we approach our targets, perhaps we can build on commonality and start with the low-hanging fruit. ‎Are there concrete process improvements that could be considered to facilitate more effective ICANN engagement with stakeholders across jurisdictions (e.g., dealing with lawful access requests from other jurisdictions while still considering privacy and human rights)?

We are not suggesting to take the more complex issues off the table, but rather to work up to them.

Best,
Andreea
Government of Canada

From: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Greg Shatan
Sent: March-01-17 11:55 AM
To: ws2-jurisdiction
Subject: Re: [Ws2-jurisdiction] FW: Questions based on Parminder's statements in the last meeting about GAC participation

All,

Any other thoughts on these questions?  I may take off my rapporteur hat and offer a few of my own, but I prefer to wait until others have weighed in.

Greg

Greg Shatan
C: 917-816-6428
S: gsshatan
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gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>

On Wed, Mar 1, 2017 at 11:53 AM, Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>> wrote:
Paul & Jorge,

In a sense, you are both right.

The questions I posed were not directly about immunity.  Rather, they inquired about (a) whether any GAC members agreed with Parminder's characterization of the thinking of (at least some) GAC members and (b) whether any other participants agreed with the other points made by Parminder.

However, the second and third questions, assuming the same answer would be true for any particular jurisdiction, lead inexorably to consideration of immunity (since the thinking is that it would be unfair to subject ICANN to the law of any jurisdiction).

The fourth question has no direct relationship to immunity.

The fifth question implies the possible consideration of immunity, but doesn't require it.

Greg

Greg Shatan
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On Wed, Mar 1, 2017 at 9:29 AM, Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com<mailto:paul.rosenzweig at redbranchconsulting.com>> wrote:
Well .. that’s interesting, as I understood it as completely about immunity.  ☺  The idea seemed to me, at least, to be about how ICANN should be immune from US law (or any law) that was not democratically agreed upon by all citizens of the world.  Certainly, in the context of what Paraminder was talking about on the call to which this referred, it seemed that was what the questions were about

P

Paul Rosenzweig
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From: Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch> [mailto:Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>]
Sent: Wednesday, March 1, 2017 9:15 AM
To: paul.rosenzweig at redbranchconsulting.com<mailto:paul.rosenzweig at redbranchconsulting.com>; ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
Subject: AW: [Ws2-jurisdiction] FW: Questions based on Parminder's statements in the last meeting about GAC participation

Dear Paul

Thanks for this info. I did not remember it in the context of the issue of immunities as it seems to me only weakly related to it, at most, but, again, perhaps I’m missing something… “immunities” is not even mentioned in the questions…

Regards

Jorge

Von: ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org> [mailto:ws2-jurisdiction-bounces at icann.org] Im Auftrag von Paul Rosenzweig
Gesendet: Mittwoch, 1. März 2017 15:04
An: ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
Betreff: [Ws2-jurisdiction] FW: Questions based on Parminder's statements in the last meeting about GAC participation

Seun/All

This is the questionnaire, my response, and David’s supplement.  It is the first one I found in my files, but there were other answers as well

Paul

Paul Rosenzweig
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From: ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org> [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of McAuley, David
Sent: Wednesday, February 22, 2017 12:41 PM
To: ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
Subject: Re: [Ws2-jurisdiction] Questions based on Parminder's statements in the last meeting about GAC participation

I agree with Paul.

The only thing to add concerns the fourth point.

I think Paul is correct on the fourth point, including where he say that so long as ICANN has any interests/assets/effects in a country, it cannot effectively avoid that jurisdiction.

In addition, many countries have treaties/arrangements to enforce final judgments from other countries – these may be bilateral, regional, or even globally multilateral treaties. So it may turn out that ICANN cannot avoid a judgment even if it fled the realm, taking all of its interests, assets, and effects with it.

David

David McAuley
International Policy Manager
Verisign Inc.
703-948-4154<tel:(703)%20948-4154>

From: ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org> [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Paul Rosenzweig
Sent: Wednesday, February 22, 2017 11:57 AM
To: 'Greg Shatan' <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>; 'ws2-jurisdiction' <ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>>
Subject: [EXTERNAL] Re: [Ws2-jurisdiction] Questions based on Parminder's statements in the last meeting about GAC participation

Greg/All

My responses are as follows (questions repeated for clarity):

First, for any GAC members, is it your position that you agree with Parminder's statements regarding GAC members?

Not applicable.

Second, for all participants, do you agree that only a law that has been democratically arrived at by all the citizens of the world can be applied to ICANN?  Are you aware of any such body of law?

I do not agree.  To begin with there is no realistic possibility of any law being created that has been democratically arrived at  by all citizens of the world.  To say that only this law can apply to ICANN is to say that no law at all can apply to ICANN.  I am not aware of any body of law that would satisfy this criteria, as almost all international law is adopted by nations, not by the citizens of the world, and it is not the case that all of the nations participating in the creation of an international body of law are themselves democratically representative.

Third, for all participants, do you agree that US law cannot be applied to ICANN because it has only been democratically arrived at by US citizens?

I do not agree.  US law can and will apply to any institution that is subject to it.  That include people who are US citizens; companies that do business in the US and anyone who is present in the US.  The same of course is true of every nation in the world – the all assert jurisdiction over citizens, residents, and companies/individuals with substantial interests that effect their country.  If instead of “cannot” (a descriptive) you mean “should not” (a normative) I disagree as well.  First, of course, there is no real use in establishing a norm that cannot practically be realized.  Second, and more importantly, subjecting ICANN to US law (and also to the laws of other States) is precisely how we achieve accountability.  In the absence of applicable law, ICANN becomes unaccountable.

Fourth, for all participants, do you agree that if ICANN is sued in a jurisdiction where it has an office, other than its jurisdiction of incorporation and loses, that ICANN can avoid complying with the judgment by closing its office in that jurisdiction?

I do not agree.  This is simply wrong as a matter of law in the US, in Germany, and in Britain, which are the three countries whose law I am familiar with. I imagine it is also wrong for many (most?) other nations.  So long as ICANN has any interests/assets/effects in a country, it cannot effectively avoid that jurisdication.  I would also note that the underlying suggestion (that ICANN seek to avoid valid judgements rendered by courts in a jurisdiction) is fundamentally lawless and that ICANN should not be in a position of suggesting that it can avoid the rule of law by artificial means of closing its operations.

Fifth, assuming for the sake of discussion that "ICANN primarily is a body with a global government function and only secondarily, an US nonprofit," what is the relevance, if any, to our primary tasks of enhancing ICANN's accountability and determining whether ICANN's accountability is negatively affected by its current jurisdictional set-up?

As far as I can tell, this is irrelevant.  [It is also wrong, but you insisted on assuming the premise.]   More to the point, the status of ICANN as a US non profit is an essential part of the accountability mechanisms that we just spend many thousands of hours creating.

Paul

Paul Rosenzweig
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From: ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org> [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Monday, February 20, 2017 10:12 PM
To: ws2-jurisdiction <ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>>
Subject: [Ws2-jurisdiction] Questions based on Parminder's statements in the last meeting about GAC participation

All,

On our last call there were some remarks by Parminder about the position of GAC members regarding ICANN.  It was not clear to me that GAC members actually held the beliefs ascribed to them.  We were not able to determine this on the call, one way or the other.  I've now excerpted the relevant sections of the transcript and confirmed them against the audio.  These sections are attached.  In addition to the question about the GAC, these statements raise a few other questions:

First, for any GAC members, is it your position that you agree with Parminder's statements regarding GAC members?

Second, for all participants, do you agree that only a law that has been democratically arrived at by all the citizens of the world can be applied to ICANN?  Are you aware of any such body of law?

Third, for all participants, do you agree that US law cannot be applied to ICANN because it has only been democratically arrived at by US citizens?

Fourth, for all participants, do you agree that if ICANN is sued in a jurisdiction where it has an office, other than its jurisdiction of incorporation and loses, that ICANN can avoid complying with the judgment by closing its office in that jurisdiction?

Fifth, assuming for the sake of discussion that "ICANN primarily is a body with a global government function and only secondarily, an US nonprofit," what is the relevance, if any, to our primary tasks of enhancing ICANN's accountability and determining whether ICANN's accountability is negatively affected by its current jurisdictional set-up?

Thank you.

Greg

Greg Shatan

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