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<div class="moz-cite-prefix">On Thursday 11 June 2015 04:41 AM,
Michael Froomkin - U.Miami School of Law wrote:<br>
</div>
<blockquote
cite="mid:alpine.LRH.2.00.1506101902540.11271@post.law.miami.edu"
type="cite">Just to head off a possible and no doubt unintentional
misunderstanding:
<br>
<br>
Non-US persons have recourse to US courts for many things,
including contractual rights. Non-US persons located outside the
US do not, in the main, have the right to make constitutional
claims or defenses against the US government. But since ICANN, or
New New Co., is not part of the US government, this is not
relevant.
<br>
</blockquote>
<br>
As you confirm below, one can make make claims or sue with respect
mostly to private law violations, like contractual deficiencies and
the such, but not on public law issues, and human rights issues. It
is the latter that is most important and the basis of my argument
for international jurisdiction for ICANN (other than the important
democratic principle that whether any jurisdiction is open to be
employed by anyone or not, a given jurisdiction has to be one which
includes all affected persons as democratic constituencies for
determining and building that jurisdiction, which all important
democratic aspect is strangely fully being side stepped in this
discussion. 'No governance/ jurisdiction without representation'
which is almost exactly the slogan on which the US fought for its
independence - it now needs to give a thought to those of others
too...)<br>
<br>
You asked for an example of a problematic scenario, let me use the
one which I have lately used in a few places. Excuse me to just cut
paste from my earlier posting to another list - to the Working Group
on ICANN Accountability, which btw took no note of it at all:<br>
<br>
(Quote from an earlier posting to another elist begins) <br>
<br>
<blockquote>One need not even provide a scenario, but let me try it
- entirely hypothetical at this stage, but extreme plausible. Sun
Pharmaceuticals is an Indian generic drugs company, one of the
world's largest, and providing drugs to most developing countries,
at a fraction of the prices that patented drug equivalents are
available for . There is a lot of literature on how Indian generic
drug industry has helped fight and stabilise the AIDS situaton in
Africa, and also with regard to other diseases all over the world.
Meanwhile, US pharma industry with the backing of the US
government has employed all possible means including those that
are suspect from an international law point of view to thwart and
weaken the Indian generic drugs industry for reasons which are
obvious -- including getting seized in international waters and
neutral protected global shipping lanes supplies being shipped
between two developing countries in both of which the transaction
is perfectly legal (There is the famous case of supplies being
exported from India to Brazil being seized off Netherlands's coast
on US gov's behest.) ... Just to give an idea of how 'tense'
things are in this area.<br>
<br>
Now, extending the hypothetical, lets say that Sun Pharma gets for
itself a gtld .Sunpharma (which btw if they ask me I'd advice them
not to bec of obvious dangers as clear from the following).. and
meanwhile extends its global business to online platforms, which
is kind of the normal direction that everything would go.
.Sunpharma then becomes or denotes the digital space where the
company does much of its global business, including management of
company's global affairs and so on.<br>
<br>
Meanwhile, one or the other Intellectual property (IP) related
flare up occurs, as routinely does, and the US pharma industry
cries foul over certain global commerce activities of Sun
Pharma.... We are, say, in 2025 and everything is so digitalised
and networked and so on, that the Sunpharma online space has
become basic to SunPharma's international operations - it becomes
the 'cloud' that underpins the company's business (which it has a
right to do - meaning to be able to own and leverage a global
online space under its own name and a trade name name derived
gtld). . US pharma approaches US courts and seeks seizing of
.Sunpharma as this asset is made available and controlled from
within the US jurisdiction; and the court agrees and accordingly
directs ICANN.... The global DNS system practically unravels, at
least its global legitimacy does... <br>
<br>
We know that US courts have many times been approached to seize
domain names that are owned by outside groups and largely work
outside the US, and on many different kinds of grounds as well.
This is common knowledge and I will not try to begin providing
examples. And this right of such seizures or to otherwise being
able to judge the public interest nature of ICANN's work lies not
only with the US courts but also some executive agencies like the
Office of Foreign Assets Control, and I am sure there must be many
more. I had earlier asked this particular stress test to be
applied but for no clear reasons it never is. If we can cherry
pick our stress tests, they really are not stress tests, whatever
other purpose they might serve. <br>
<br>
There is simply no solution to the problem of letting US courts
and US's empowered executive agencies routinely judge and enforce
their will wrt the public interest impact of ICANN's global
governance activities than to incorporate ICANN under
international law and get corresponding immunity from US domestic
law. I repeat, there is simply no other way. Period. <br>
<br>
Therefore if we indeed are worried about the role and authority of
US courts vis a vis ICANN's global governance activities, lets be
consistent. I have held back commenting here, because I see that
the two key framing issues of accountability - accountability to
which community/ public, and the issue of jurisdiction - have
simply been sidestepped, and in default there is no meaning to
thrashing out minute details. "<br>
</blockquote>
<br>
(quote ends)<br>
<br>
parminder <br>
<br>
<blockquote
cite="mid:alpine.LRH.2.00.1506101902540.11271@post.law.miami.edu"
type="cite">
<br>
If a corporation is located in a US state, then it can be sued
there by **anyone*** from ***anywhere*** so long as they are in
fact alleging facts showing they were wronged by it. In other
words, the issue is what (mainly private law) rights one might
have to assert, not whether the court will hear you due to your
citizenship or domicile or even (if represented by counsel)
location.
<br>
<br>
<br>
On Wed, 10 Jun 2015, Seth Johnson wrote:
<br>
<br>
<blockquote type="cite">On Wed, Jun 10, 2015 at 2:51 PM, Mawaki
Chango <a class="moz-txt-link-rfc2396E" href="mailto:kichango@gmail.com"><kichango@gmail.com></a> wrote:
<br>
<blockquote type="cite">Simple and maybe trivial question, again
(since my previous one about
<br>
delegation hasn't found a taker.)
<br>
<br>
Scenario 1*: I am a citizen of Togo, quite a small country
sitting on the
<br>
belly of Africa to the west (you may check our macro economic
indicators in
<br>
the CIA Facebook or from the World Bank online sources.) I am
a domain name
<br>
registrant. In year 2018 ICANN makes a decision, later upheld
by the
<br>
conflict resolution mechanism in place, but which I think
violates my
<br>
fundamental rights as I understand them by any international
standards. I am
<br>
even pretty convinced that I might win the case in a US court
based on the
<br>
documentation available /jurisprudence in that country.
Problem is, I have
<br>
no access to the institutional resources that would allow me
to use the US
<br>
judicial system as a plaintiff, much less the financial
resources it would
<br>
take to get a lawyer to represent my interests.
<br>
<br>
Is that -- the need for everybody to be equal before the law,
in practice,
<br>
and have their rights equally secured, -- in your view, a
problem worthy of
<br>
our attention? If so how can we address it.
<br>
</blockquote>
<br>
<br>
It is. But no, you would not have recourse to US courts. The
problem
<br>
for the international arena is that nobody has that "trump card"
<br>
recourse that keeps governments in check *other than* those who
have a
<br>
claim that their own government is doing or allowing things to
happen
<br>
that violate their own fundamental rights as a citizen. The
kind of
<br>
rights you get internationally are really almost what we call
<br>
statutory rights -- the problem being that the "legislature" can
<br>
always rewrite those kinds of rights. Or, since in fact going
and
<br>
revising a treaty provision regarding rights poses some
political
<br>
difficulty, what you'll see more often is that the rights
expressed in
<br>
treaties have no more weight against things like "national
interests"
<br>
or "national security" or the "war on" x, y, and z -- than a
<br>
"balancing standard." Governments can well do whatever they say
is
<br>
necessary (like vacuum up all communications for surveillance,
or for,
<br>
hey, regular spying) for their national interests and they
essentially
<br>
just "bear in mind" whatever rights are expressed in treaties.
And no
<br>
judge in an ostensible international tribunal can really simply
cancel
<br>
a treaty the way they can an unconstitutional law in a national
<br>
context (without a clear founding act prior to the government,
where
<br>
the people(s) claim their priority and authorize government(s)
to
<br>
proceed only under certain limits). Treaties are agreements
among
<br>
governments, so what the governments "meant" is what you have to
<br>
deliberate over in interpreting the treaties -- not over whether
the
<br>
people have rights regardless of the governments' intention in
the
<br>
treaty. A judge would at best weigh treaty elements and try to
<br>
articulate how to settle all parts without saying any part is
<br>
"unconstitutional." The problem is how to get the closest you
can to
<br>
that kind of a "trump card" standing for fundamental rights.
<br>
<br>
An ostensible "constitution" among governments (like the ITU's)
has
<br>
the same problem. In general, the way the real claim of
priority of
<br>
the people and their rights happens is when the people
self-evidently
<br>
act to fill in the gap when a government is rendered
illegitimate (or
<br>
overthrown): acting independent of the pre-established
government to
<br>
select delegates to their own constitutional convention, draft a
<br>
constitution, and then ratify it -- they thereby set a
definitive
<br>
historical register of the people setting limits that the
government
<br>
must thenceforth operate within to be legitimate. This is
called the
<br>
"constituent power." Historians point at Massachusetts as the
first
<br>
US colony/state to exercise the consttuent power that way --
when the
<br>
towns rejected the state constitution the state legislature had
<br>
written for them and insisted on having their own constitutional
<br>
process. It was done by similar principles for the US federal
<br>
constitution. That's how you get a fundamental right "trump
card."
<br>
<br>
If you have that, and it's exercised a few times well or for a
while,
<br>
then you have a situation where goverments are in check -- they
don't
<br>
overreach too obviously, or they test the boundaries but they
get
<br>
trumped by a judiciary that's rooted that way.
<br>
<br>
You posed the question of equal rights before the law, in the
<br>
international context. I certainly do not advocate a global
<br>
revolution where all the people(s) seize a moment to stop their
<br>
governments and tell them how they may all proceed.
<br>
<br>
What I have tended to suggest is approaches that can be interim
<br>
measures that tend towards the principles that we want to have
in
<br>
play, but which we can't yet quite have in play.
<br>
<br>
One approach that seems like a way towards that kind of
conception
<br>
might be: Imagine a bicameral "House of Rights" or more narrowly
an
<br>
"International Internet Communications Rights Forum." It
doesn't need
<br>
to say "Rights," though that's the point, so maybe call it an
<br>
"Internet Stewards House." This is modeled like a legislature,
with a
<br>
house to represent countries equally, and another house to
represent
<br>
populations proportionally -- except it's not empowered to write
law
<br>
(or treaties), but rather to play the role of voting to *veto*
acts of
<br>
other (or some one or few other) intergovernmental bodies that
<br>
actually do start enacting binding "legislation." You might be
able
<br>
to get freedom-loving countries to endorse constructing
something like
<br>
that, and while it's not as solid as court rulings that keep all
<br>
lawlike activities in check more definitively, it would be a
solid
<br>
register of the priority of rights.
<br>
<br>
There are a lot of holes in that, but I think it conveys
something of
<br>
the kind of concerns and how they might be approached that we
should
<br>
really have in mind rather than blindly handing things off to
the
<br>
international arena (which is really *always*
"intergovernmental" --
<br>
governments are the entities that act there).
<br>
<br>
So, that's a sort of answer, stab at describing things properly
and
<br>
with some sort of practical conception. I don't press specific
<br>
solutions though, just describe notions that I think can give
people a
<br>
better understanding of the real nature of the difficulties and
<br>
problems involved.
<br>
<br>
Ponder that; you'll think of plenty of problems with it. But
the
<br>
important thing is this is a far more real characterization of
the
<br>
situation. And I describe an idea like this solely to set a
proper
<br>
stage for talking about things with a better sense of what's
going on.
<br>
Take it as a brainstorm. But also take it as a reality check
and a
<br>
call and challenge to try to define and understand the situation
<br>
properly and well.
<br>
<br>
(The above line of exposition talks mostly about
governmental-related
<br>
issues. The issues brought by the corporate form are a whole
other
<br>
area that also needs fuller appreciation. And really, we most
want
<br>
not to be so governmental [even those of us stressing the
validity of
<br>
the role of government]; we want to just build our Internet and
let
<br>
that be mostly a discussion of how to solve problems in a
technical
<br>
way and one where our rights aren't on the line.)
<br>
<br>
See what you think of that.
<br>
<br>
<br>
Seth
<br>
<br>
<blockquote type="cite">Thanks
<br>
<br>
(*) I only have one scenario for now but I'm numbering #1 just
in case
<br>
others come up later in the discussion.
<br>
<br>
/Brought to you by Mawaki's droid agent
<br>
<br>
On Jun 10, 2015 3:57 PM, "Seth Johnson"
<a class="moz-txt-link-rfc2396E" href="mailto:seth.p.johnson@gmail.com"><seth.p.johnson@gmail.com></a> wrote:
<br>
<blockquote type="cite">
<br>
I believe the most important focus is on the question of how
to
<br>
install effective fundamental liberties limits in the
context of an
<br>
international political forum. That's how you can hope to
maintain
<br>
the type of stewardship context we want associated with a
medium of
<br>
communication. The presence of recourse of that sort --
related to
<br>
being based in a national context -- is one of the main
reasons why
<br>
ICANN has not gone further off the rails. Same as for
government in
<br>
general in such a national context: we don't get the
government
<br>
meddling specifically because the relationship to the
national context
<br>
(via the bare presence of NTIA) means the people (at least
of the US)
<br>
have recourse against it if it does.
<br>
<br>
Keep in mind that one of the chief reasons why Obama (and
his
<br>
predecessor) have gone off the rails with surveillance and
other
<br>
fundamental rights violations is because they have the
notion that the
<br>
international arena provides means to act that way without
the
<br>
recourse we have against it domestically. There's still the
problem
<br>
of laundering the surveillance by having private
corporations (whether
<br>
telco or app) do it on the government's behalf. But we see
an effort
<br>
at long last to try to "legitimize" what they're doing that
way at
<br>
least (more apparent effort to not violate citizens in the
domestic
<br>
sphere), because we finally got standing in the courts, and
<br>
documentation that was taken seriously via Snowden. Still
just
<br>
domestic, so that doesn't answer general concerns, but this
should
<br>
highlight the nature of the problem. You don't actually
have
<br>
fundamental rights in the international arena, no matter how
many
<br>
human rights treaties you pass. That's not what secures
rights
<br>
against acts of governments.
<br>
<br>
Note that this is stuff the UN has been utterly clueless
about for
<br>
years and years and years, along with many followers-on.
And I think
<br>
in general the parties who have been acting in the
international arena
<br>
like it that way. We, the people(s), are really the ones to
bring it
<br>
into the discourse in a real way, now that we are here in
proceedings
<br>
that deign to appear to engage us substantively in
international
<br>
policy.
<br>
<br>
<br>
Seth
<br>
<br>
On Wed, Jun 10, 2015 at 10:36 AM, Michael Froomkin - U.Miami
School of
<br>
Law <a class="moz-txt-link-rfc2396E" href="mailto:froomkin@law.miami.edu"><froomkin@law.miami.edu></a> wrote:
<br>
<blockquote type="cite">On Wed, 10 Jun 2015, Chris Prince
Udochukwu Njoku wrote:
<br>
<br>
<blockquote type="cite">
<br>
Parminder is emphasizing a true point. An organization
which represents
<br>
the
<br>
interests of many nations, though located in one nation
(as it must be)
<br>
must
<br>
not be subjected to laws that ought to be (and are) for
national
<br>
</blockquote>
<br>
<br>
It is, I think, possible to act as a trustee of
international interests
<br>
while still having accountability rooted in national law.
It may not be
<br>
possible to accommodate the desires of governments to, in
effect, serve
<br>
directly on the governing body given the view of e.g. the
Brazilian
<br>
government that this is unacceptable subordination to
another state, but
<br>
some may see that as a feature rather than a bug.
<br>
<br>
<br>
<blockquote type="cite">organizations. This should be the
definition of international
<br>
jurisdiction
<br>
here. If the host nation's laws don't actually
accommodate the
<br>
multinational
<br>
stakeholding nature of the organization, it's a ripe
clue to the need
<br>
for
<br>
relocation to a place that is more friendly to the
organization's
<br>
operations.
<br>
<br>
</blockquote>
<br>
The above contains a term that (to a lawyer) has multiple
possible
<br>
meanings.
<br>
The traditional way to " accommodate the multinational ...
nature" of an
<br>
organization is to incorporate it in Switzerland, and have
no effective
<br>
supervision. FIFA. IOC. No thanks.
<br>
<br>
So I would ask, what is the threat model here? What is a
(mildly
<br>
realistic)
<br>
example of a scenario in which one fears the entity will
do something
<br>
legitimate and a national court (of the US, Canada, the
nation of your
<br>
choice) would have an appreciable chance of blocking it?
I would note,
<br>
for
<br>
example, that the only time I can think of that a US court
overruled
<br>
ICANN
<br>
was when it froze out one of its own directors because the
staff
<br>
disagreed
<br>
with his views. That violated California law empowering
directors not
<br>
to
<br>
mention any sense of natural justice. The result was not
only just, it
<br>
was
<br>
necessary. And it is Exhibit A as to why we cannot simply
trust in
<br>
ICANN,
<br>
or New New Co's, good faith.
<br>
<br>
In other words, I submit that national court supervision
in an
<br>
appropriate
<br>
and democratic jurisdiction is far, far more likely to
produce good
<br>
outcomes
<br>
than bad ones, while the removal of this valuable check is
almost
<br>
certain to
<br>
lead to difficulties. What is more, those difficulties
will not be
<br>
prevented by having the body be "international" for any
currently known
<br>
meaning of the term.
<br>
<br>
Contrary to other messages in this thread, I do not
believe that there
<br>
is
<br>
much in the way of effective monitoring of many
multi-national treaty
<br>
bodies
<br>
other than by action of the member states. No one else
has much real
<br>
leverage over WIPO, GATT, you name it. NGOs have some
moral and
<br>
intellectual suasion, but some of their clout also comes
from the fact
<br>
that
<br>
it influences or might influence the members.
<br>
<br>
I prefer to attempt to engineer a much surer means of
dealing with major
<br>
and
<br>
substantially foreseeable problems.
<br>
<br>
<br>
<blockquote type="cite">On Jun 10, 2015 11:27 AM,
"parminder" <a class="moz-txt-link-rfc2396E" href="mailto:parminder@itforchange.net"><parminder@itforchange.net></a>
<br>
wrote:
<br>
<br>
<br>
On Tuesday 09 June 2015 09:09 PM, Michael Froomkin
- U.Miami
<br>
School of
<br>
Law wrote:
<br>
> On Tue, 9 Jun 2015, parminder wrote:
<br>
>
<br>
>> Are you saying that it is not possible for
ICANN to undertake
<br>
the
<br>
>> functions that it needs to
<br>
>> undertake while being an international
institution
<br>
incorporated under
<br>
>> international law, and free
<br>
>> from any countries jurisdiction in terms
of its basic
<br>
governance
<br>
>> functions? I just want to be clear.
<br>
>
<br>
> I don't know what an "an international
institution
<br>
incorporated under
<br>
> international law" is except bodies like FIFA
(under Swiss
<br>
law), or UN
<br>
> bodies, or sui generis treaty bodies. It is
certainly
<br>
*possible* for
<br>
> ICANN to have any of those statuses and to
"function"; as far
<br>
as I can
<br>
> tell, however, it's just not possible to build
in meaningful
<br>
> accountability in those structures.
<br>
<br>
There are of course problems and issues
everywhere, but it can
<br>
hardly be
<br>
said that UN and/or treaty bodies work without
meaningful
<br>
accountability. Further, any new international
treaty/ law
<br>
establishing
<br>
a new body - an really international ICANN for
instance - can
<br>
write all
<br>
the accountability method it or we want to have
written in it.
<br>
>
<br>
> There is no general international law of
incorporation of
<br>
which I am
<br>
> aware. Corporate (formation) law is all
national law. That
<br>
is the
<br>
> reality that must be confronted. There is no
place I can go
<br>
to get an
<br>
> international corporate charter, and good
thing too - why
<br>
should I be
<br>
> able to exempt myself from national law?
<br>
<br>
This hits a fundamental issue - I see ICANN, in
its ideal form,
<br>
as a
<br>
governance body, since it does governance
functions, and not as
<br>
a
<br>
private corporation. So we need a new
international treaty
<br>
sanctifying
<br>
ICANN as a global governance body - with its basic
forms largely
<br>
unchanged, with new accountability means
(including judicial
<br>
accountability) and not ways to be able
incorporate a private
<br>
kind of an
<br>
entity outside national laws, which is admittedly
both very
<br>
difficult,
<br>
and rather undesirable.
<br>
<br>
parminder
<br>
<br>
>
<br>
>>
<br>
>> If so, that would be an interesting
assertion. Now, I am sure
<br>
this is
<br>
>> not true. However, I am not an
<br>
>> international legal expert and not able to
right now build
<br>
and
<br>
>> present the whole scenario for you on
<br>
>> how it can be done. I am sure there are a
number of
<br>
international
<br>
>> organisations that do different
<br>
>> kind of complex activities and have found
ways to do it under
<br>
>> international law and jurisdiction.
<br>
>
<br>
> But those are in the main treaty bodies.
<br>
>
<br>
>> And if some new directions and evolutions
are needed that can
<br>
also be
<br>
>> worked out (please see my last
<br>
>> email on this count).
<br>
>>
<br>
>
<br>
> Here we just disagree. I see the task as
monsterously hard,
<br>
the work
<br>
> of a decade or more.
<br>
>
<br>
>> BTW it is a sad statement on the geo
political economy of
<br>
knowledge
<br>
>> production in this area that
<br>
>> there is not one full fledged scenario
developed by anyone on
<br>
how
<br>
>> ICANN can undertakes its
<br>
>> activities under international law/
jurisdiction - which I am
<br>
pretty
<br>
>> sure it can. Many parties,
<br>
>> including governments have called for it,
and yes I agree
<br>
someone
<br>
>> should come up with a full
<br>
>> politico-legal and institutional
description of how it can
<br>
and should
<br>
>> be done - with all the details
<br>
>> in place. And that is the sad part of it,
of how things stand
<br>
at the
<br>
>> global level, had now lopsided
<br>
>> is resource distribution, all kinds of
resources.
<br>
>>
<br>
>
<br>
> Alas.
<br>
>
<br>
>> Not to shy away from responsibility - I am
happy to
<br>
collaborate with
<br>
>> anyone if someone can out time
<br>
>> into it.
<br>
>>
<br>
>> And no, it cannot be solved by any other
country
<br>
jurisdiction. Apart
<br>
>> from it being still being wrong
<br>
>> in principle, how would US accept that
another jurisdiction
<br>
is better
<br>
>> than its own and accede to
<br>
>> such a change. Accepting the patently
justified fact that an
<br>
>> international infrastructure should be
<br>
>> governed internationally, on the other
hand, is much easier .
<br>
>>
<br>
>
<br>
> I would not dismiss this so quickly. I take a
substantial
<br>
fraction of
<br>
> the opposition to US residual control (for
that is all we are
<br>
talking
<br>
> about) to be tied to the US's status as
defacto hegemon.
<br>
Moving ICANN
<br>
> to another state with a strong human rights
record would
<br>
answer that
<br>
> part of the critique.
<br>
>
<br>
> In my view, a bespoke international structure
is actually much
<br>
harder
<br>
> -- it would need to be invented almost from
scratch. And it
<br>
is bound
<br>
> to be flawed; national rules are the result of
at least
<br>
decades if not
<br>
> more of trial and error.
<br>
>
<br>
>> parminder
<br>
>>
<br>
>> On Tuesday 09 June 2015 07:31 PM, Michael
Froomkin - U.Miami
<br>
School
<br>
>> of Law wrote:
<br>
>> I don't know what it means to say
that ICANN should be
<br>
subject
<br>
>> to "international
<br>
>> jurisdiction and law". For the
relevant issues, that
<br>
sounds
<br>
>> like a pretty empty set.
<br>
>>
<br>
>> As regards most of the sort of
things one might expect
<br>
to worry
<br>
>> about - e.g. fidelity to
<br>
>> articles of incorporation -
international law is
<br>
basically
<br>
>> silent. And there is no
<br>
>> relevant jurisdiction either. So I
remain stuck in the
<br>
>> position that there must be a
<br>
>> state anchor whose courts are given
the job. It does
<br>
not of
<br>
>> course need to be the US,
<br>
>> although I would note that the US
courts are by
<br>
international
<br>
>> standards not shy and
<br>
>> actually fairly good at this sort of
thing.
<br>
>>
<br>
>> I do think, however, that it should
NOT be Switzerland,
<br>
as its
<br>
>> courts are historically
<br>
>> over-deferential to international
bodies - perhaps as
<br>
part of
<br>
>> state policy to be an
<br>
>> attractive location for those
high-spending
<br>
international
<br>
>> meetings.
<br>
>>
<br>
>> I'd be real happy with Canada,
though.
<br>
>>
<br>
>> On Tue, 9 Jun 2015, parminder wrote:
<br>
>>
<br>
>>
<br>
>>
<br>
>> On Tuesday 09 June 2015 06:26
PM, Michael
<br>
Froomkin -
<br>
>> U.Miami School of Law
<br>
>> wrote:
<br>
>>
<br>
>> I think that bodies
which do not need to
<br>
fear
<br>
>> supervision by
<br>
>> legitimate courts end up
<br>
>> like FIFA. FIFA had a
legal status in
<br>
Switzerland
<br>
>> that basically
<br>
>> insulated it the way
<br>
>> that the Brazilian
document seems to
<br>
suggest would
<br>
>> be what they want
<br>
>> for ICANN. (It's
<br>
>> also the legal status
ICANN has at times
<br>
suggested
<br>
>> it would like.)
<br>
>>
<br>
>> The lesson of history
seems unusually clear
<br>
here.
<br>
>>
<br>
>>
<br>
>> Agree that ICANN cannot be
left jurisdictionally
<br>
>> un-supervised - that may be
<br>
>> even more dangerous
<br>
>> than the present situation.
However, the right
<br>
>> supervision or oversight is
<br>
>> of international
<br>
>> jurisdiction and law, not that
of the US . This
<br>
is what
<br>
>> Brazil has to make
<br>
>> upfront as the
<br>
>> implication of what it is
really seeking, and its
<br>
shyness
<br>
>> and reticence to
<br>
>> say so is what I noted as
<br>
>> surprising in an earlier email
in this thread.
<br>
Not
<br>
>> putting out clearly what
<br>
>> exactly it wants would
<br>
>> lead to misconceptions about
its position, which
<br>
IMHO can
<br>
>> be seen from how
<br>
>> Michael reads it. I am
<br>
>> sure this is not how Brazil
meant it - to free
<br>
ICANN from
<br>
>> all kinds of
<br>
>> jurisdictional oversight
<br>
>> whatsoever - but then Brazil
needs to say clearly
<br>
what is
<br>
>> it that it wants,
<br>
>> and how can it can
<br>
>> obtained. Brazil, please come
out of your
<br>
NetMundial
<br>
>> hangover and take
<br>
>> political responsibility for
<br>
>> what you say and seek!
<br>
>>
<br>
>> parminder
<br>
>>
<br>
>>
<br>
>>
<br>
>> On Tue, 9 Jun 2015,
Mawaki Chango wrote:
<br>
>>
<br>
>>
<br>
>> It's good to see a
law scholar
<br>
involved in
<br>
>> this discussion. I'll
<br>
>> leave it to
<br>
>> the Brazilian
party to
<br>
>> ultimate tell
whether your reading is
<br>
correct
<br>
>> or not. In the
<br>
>> meantime I'd
<br>
>> volunteer the
following
<br>
>> comments.
<br>
>>
<br>
>> On Jun 8, 2015
10:46 PM, "Michael
<br>
Froomkin -
<br>
>> U.Miami School of
<br>
>> Law"
<br>
>>
<a class="moz-txt-link-rfc2396E" href="mailto:froomkin@law.miami.edu"><froomkin@law.miami.edu></a> wrote:
<br>
>> >
<br>
>> > Perhaps I'm
misreading something,
<br>
but I
<br>
>> read this document to
<br>
>> make the
<br>
>> following
assertions:
<br>
>> >
<br>
>> > 1. All
restrictions on ICANN's
<br>
location
<br>
>> must be removed.
<br>
>> >
<br>
>>
<br>
>> And the question
reopened for
<br>
deliberation by
<br>
>> all stakeholders,
<br>
>> including
<br>
>> governments among
others.
<br>
>> Only the outcome
of such deliberation
<br>
will be
<br>
>> fully legitimate
<br>
>> within the
<br>
>> framework of the
post-2015
<br>
>> ICANN.
<br>
>>
<br>
>> > 2. ICANN does
not have to leave the
<br>
US but
<br>
>> must be located in
<br>
>> a place
<br>
>> where the
governing law has
<br>
>> certain
characteristics, including
<br>
not having
<br>
>> the possibiliity
<br>
>> that courts
<br>
>> overrule ICANN (or
at
<br>
>> least the IRP).
<br>
>> >
<br>
>> > (And, as it
happens, the US is not
<br>
such a
<br>
>> place....)
<br>
>> >
<br>
>>
<br>
>> Not only avoiding
courts overruling
<br>
relevant
<br>
>> outcomes of the
<br>
>> Internet global
<br>
>> community
processes,
<br>
>> but also examining
and resolving the
<br>
possible
<br>
>> interferences/conflicts that
<br>
>> might arise for
<br>
>> government
representatives being
<br>
subject to a
<br>
>> foreign country
<br>
>> law simply in
<br>
>> the process of
attending
<br>
>> to their regular
duties (if they were
<br>
to be
<br>
>> fully engaged with
<br>
>> ICANN).
<br>
>>
<br>
>> Quote:
<br>
>>
<br>
>>
<br>
>> "From the Brazilian perspective the
existing structure
<br>
clearly imposes limits to the participation
<br>
>>
<br>
>>
<br>
>> ???of governmental representatives,
as it is unlikely
<br>
that a representative of a foreign government
<br>
>> w
<br>
>> i
<br>
>> ll be authorized (by its own government)
to formally accept a
<br>
position in a body pertaining to a U.
<br>
>>
<br>
>>
<br>
>>
<br>
>> S. corporation."
<br>
>>
<br>
>> This may be what
you're getting at
<br>
with your
<br>
>> point 3 below, but
<br>
>> I'm not sure
<br>
>> whether the
problem is
<br>
>> only the fact that
governments have
<br>
to deal
<br>
>> with a corporate
<br>
>> form/law or
<br>
>> whether it is
altogether
<br>
>> the fact that it
is a single country
<br>
law
<br>
>> without any form of
<br>
>> deliberate
<br>
>> endorsement by the
other
<br>
>> governments (who
also have law making
<br>
power
<br>
>> in their respective
<br>
>> country just
<br>
>> as the US
government).
<br>
>>
<br>
>> Assuming your
reading is correct, and
<br>
if
<br>
>> necessary complemented
<br>
>> by my
<br>
>> remarks above, I'd
be
<br>
>> interested in
hearing from you about
<br>
any
<br>
>> issues you may see with
<br>
>> the BR gov
<br>
>> comments.
<br>
>> Thanks,
<br>
>>
<br>
>> Mawaki
<br>
>>
<br>
>> >
<br>
>> > 3. ICANN
doesn't have to change its
<br>
form,
<br>
>> but it needs a form
<br>
>> where
<br>
>> governments are
comfortable.
<br>
>> >
<br>
>> > (And, as it
happens, the corporate
<br>
form is
<br>
>> not such a
<br>
>> form....)
<br>
>> >
<br>
>> >
<br>
>> > What am I
missing?
<br>
>> >
<br>
>> >
<br>
>> >
<br>
>> > On Sat, 6 Jun
2015, Carlos A.
<br>
Afonso wrote:
<br>
>> >
<br>
>> >> For the
ones who are following the
<br>
IANA
<br>
>> transition process:
<br>
>> attached
<br>
>> >> please
find the comments posted by
<br>
the
<br>
>> government of Brazil
<br>
>> on June 03,
<br>
>> >> 2015, in
response to the call for
<br>
public
<br>
>> comments on the
<br>
>> >>
CCWG-Accountability Initial Draft
<br>
Proposal.
<br>
>> >>
<br>
>> >> I
generally agree with the
<br>
comments.
<br>
>> >>
<br>
>> >> fraternal
regards
<br>
>> >>
<br>
>> >> --c.a.
<br>
>> >>
<br>
>> >
<br>
>> > --
<br>
>> > A. Michael
Froomkin, <a class="moz-txt-link-freetext" href="http://law.tm">http://law.tm</a>
<br>
>> > Laurie Silvers
& Mitchell
<br>
Rubenstein
<br>
>> Distinguished Professor
<br>
>> of Law
<br>
>> > Editor,
Jotwell: The Journal of
<br>
Things We
<br>
>> Like (Lots),
<br>
>> jotwell.com
<br>
>> > Program Chair,
We Robot 2016 | +1
<br>
(305)
<br>
>> 284-4285 |
<br>
>> <a class="moz-txt-link-abbreviated" href="mailto:froomkin@law.tm">froomkin@law.tm</a>
<br>
>> > U. Miami
School of Law, P.O. Box
<br>
248087,
<br>
>> Coral Gables, FL
<br>
>> 33124 USA
<br>
>>
> -->It's
<br>
warm here.<--
<br>
>> >
<br>
>>
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A. Michael Froomkin, <a class="moz-txt-link-freetext" href="http://law.tm">http://law.tm</a>
<br>
Laurie Silvers & Mitchell Rubenstein Distinguished
Professor of Law
<br>
Editor, Jotwell: The Journal of Things We Like (Lots),
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