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David, <br>
<br>
I will cut out both the chaff and the detail, sticking to the main
issue we are discussing here. Your scenario building does show
that 'it is possible' that as a result of the current court case
on .xxx, this gtld 'may' need to be removed from the root. You
also show that it can lead to a situation that threatens splitting
of the root. We all know that the very meaning of a court case
being admitted, and its maintainability being expressly confirmed
by the court, is that the decision can indeed go either way. <br>
<br>
You would agree that, in a similar way that you would prepare for
the security of your house without waiting for a break in to
actually happen, governance systems need to be built with this
kind of possible eventualities in mind. This to me is a convincing
case that we should develop and propose a clear alternative for
CIR management that is not dependent on the laws and executive
authority of one country. <br>
<br>
Basically, in the circumstances, the only option is to base ICANN
on international law, with a host country agreement and immunities
for its functions vis a vis its physical location. And the only
way to make international law is for all countries to get together
and make it, while it being a fully open and participative process
for everyone else. (In the same way as the 'only' process for
making law in the US is for its legislature to make it). Now, if
someone has an alternative, doable, process of making
international law, one must come up with it (Milton's mysterious
solution in his mysterious book notwithstanding). <br>
<br>
parminder <br>
<br>
</font>
<div class="moz-cite-prefix">On Monday 27 August 2012 01:09 AM,
David Conrad wrote:<br>
</div>
<blockquote
cite="mid:F027B375-EBBA-4FBA-9236-EE67A770514A@virtualized.org"
type="cite">
<meta http-equiv="Content-Type" content="text/html;
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Parminder,
<div><br>
<div>
<div>On Aug 26, 2012, at 7:36 AM, parminder <<a
moz-do-not-send="true"
href="mailto:parminder@itforchange.net">parminder@itforchange.net</a>>
wrote:</div>
<blockquote type="cite">
<div bgcolor="#FFFFFF" text="#000000">
<div class="moz-cite-prefix">On Sunday 26 August 2012
10:48 AM, David Conrad wrote:<br>
</div>
<blockquote
cite="mid:F1E46135-B500-49C7-927B-893B89E074C1@virtualized.org"
type="cite">
<div>
<div>
<div>I was specifically asking for a reference to
where any "ICANN apologist claim[s] so" so I can
understand their rationale. Your statement is
rather bald, so presumably you can back it up. I'm
asking for a reference. Can you provide one?</div>
</div>
</div>
</blockquote>
I dont want to dig up all emails and get into a long
discussion on you said this, what i meant was this and so
on........ <br>
</div>
</blockquote>
<div><br>
</div>
So, I gather you choose not to back up your assertion. Useful
to know for future discussions.</div>
<div><br>
</div>
<div>
<blockquote type="cite">
<div bgcolor="#FFFFFF" text="#000000">
<blockquote
cite="mid:F1E46135-B500-49C7-927B-893B89E074C1@virtualized.org"
type="cite">
<div>
<div>If you assume that the "wishes of the US state"
are codified in corporate law, I suppose so, but
this seems to be a bit of a reach to me.</div>
</div>
</blockquote>
Why? Doest US state make the corporate law?<br>
</div>
</blockquote>
<div><br>
</div>
<div>Yes, but corporate law is a tiny subset of the "wishes of
the US state".</div>
<div><br>
</div>
<blockquote type="cite">
<div bgcolor="#FFFFFF" text="#000000">
<blockquote
cite="mid:F1E46135-B500-49C7-927B-893B89E074C1@virtualized.org"
type="cite">
<div>
<div> For example, my impression the USG wasn't
particularly excited about the creation of .XXX yet
ICANN seems to have gone ahead and allowed for its
creation, no?</div>
</div>
</blockquote>
How many time can this one example to used to show the
purity of the US state... </div>
</blockquote>
<div><br>
</div>
<div>Until it is demonstrated it is inapplicable, I suspect it
will continue to be used. There are others, e.g.,
processing requests from countries in which it is illegal
(as in criminal felony, decades in jail, millions in fines)
for US citizens to do business.</div>
<br>
<blockquote type="cite">
<div bgcolor="#FFFFFF" text="#000000">
<blockquote
cite="mid:F1E46135-B500-49C7-927B-893B89E074C1@virtualized.org"
type="cite">
<div>
<div>
<div>As for abiding by the constraints of executive
authority, ICANN, at least in theory, abides by
policies created by a bottom-up open process, not
by the dictates from the USG executive branch.</div>
</div>
</div>
</blockquote>
In theory, the hierarchy between the two above kinds of
control over the ICANN is clear. US laws and general US
authority will prevail whether they have exercised it in
any strong manner till now or not. And this is not
acceptable. <br>
</div>
</blockquote>
<div><br>
</div>
<div>If you say so. I eagerly await a full proposal of your
alternative that describes an operational entity that exists
above nation-state law.</div>
<div><br>
</div>
<blockquote type="cite">
<div bgcolor="#FFFFFF" text="#000000">BTW, why dont I get
the answer to the main question which started this thread,
and is in its subject line. <b>What happens if the US
court, having accepted it as a maintainable case,
declares .xxx registry agreement to be in contravention
of US laws</b>? <b>Does the ICANN system with its
chimera of global legitimacy simply unravels that
moment? How do you see such a scenario?</b> </div>
</blockquote>
<div><br>
</div>
Despite you being seemingly unwilling to answer my simple
question, I'll take a stab at this from an operational
perspective (since I'm not a lawyer):</div>
<div><br>
</div>
<div>If a court were to decide .XXX violated US law (somehow),
it could direct ICANN to remove it. However, ICANN, as the
IANA functions operator, can't do the job (at least usefully
-- the most ICANN can do unilaterally is remove the Whois
entry for XXX, but I doubt many people would care). ICANN can
at most send a request for a de-delegation to DoC for
authorization. Assuming DoC authorizes that request, it would
then go to Verisign who would likely remove the entry from the
root zone (since DoC authorized it, they'd be silly not to).
The XXX-less zone would then get signed and put onto the
distribution master where the root server operators would pull
it down and serve it to the world's resolvers. </div>
<div><br>
</div>
<div>I suspect where things might get a bit complicated is in
the DoC authorization step. My guess is that DoC would not
authorize the request as it would be done outside of
documented policies. This in turn would likely result in the
lawsuit being redirected to DoC. Assuming the USG allowed the
suit to proceed and the judgement was against the DoC, DoC
could be forced to authorize the request.</div>
<div><br>
</div>
<div>It would then run into the other complicated bit -- whether
or not the root server operators accept and serve the XXX-less
zone. Opinions differ.</div>
<div><br>
</div>
<div>Does ICANN's legitimacy unravel if this were to occur? Not
really, IMHO. The illusion that some (including yourself, I
gather) have ICANN is actually in control of anything other
than providing a venue in which consensus policies are derived
and implemented might unravel, but that would (again, IMHO) be
a good thing.</div>
<div><br>
<blockquote type="cite">
<div bgcolor="#FFFFFF" text="#000000">
<blockquote
cite="mid:F1E46135-B500-49C7-927B-893B89E074C1@virtualized.org"
type="cite">
<div>I figure when you are talking about mucking about
with a working albeit imperfect global infrastructure
upon which people, nations, and economies are
increasingly dependent, you need a bit more than "but
the current system is undemocratic!".</div>
</blockquote>
All my political and democratic sensibilities make me feel
that your sentence above is self contradictory. </div>
</blockquote>
<div><br>
</div>
Then you may need to adjust either your sensibilities or your
perception.</div>
<div><br>
<blockquote type="cite">
<div bgcolor="#FFFFFF" text="#000000">You say that Internet
has become too important an issue to subject to the
democratic criterion !? </div>
</blockquote>
<div><br>
</div>
Nope. I'm saying pretty much exactly the opposite. The
Internet has become too important to go mucking about with
before exposing exactly how and why you're going to be mucking
about to the people who are going to be affected by that
mucking about.</div>
</div>
<div><br>
</div>
<div>Regards,</div>
<div>-drc</div>
<div><br>
</div>
</blockquote>
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