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<div class="moz-cite-prefix">On Friday 12 June 2015 11:14 PM,
Michael Froomkin - U.Miami School of Law wrote:<br>
</div>
<blockquote
cite="mid:alpine.LRH.2.00.1506121341080.30188@post.law.miami.edu"
type="cite"> <br>
I don't agree with your characterization of the US courts. In the
trademark arena, the one most relevant to ICANN, they have been
wildly more supportive of speech rights and individual rights than
WIPO. <br>
<br>
In copyright law, which I know less well, my sense is that the
courts are divided, but the real parameters have been set by the
legislature. <br>
</blockquote>
<br>
How does it matter where from the evil arises as long as it
delivers. You will appreciate that as a non US person I have little
interest in the internal nuances of the US scene, and only need to
know that the US has an IP maximalist policy, which its various
agencies, including the courts, have shown great eagerness to
enforce strongly, including in an extraterritorial manner.... And
that the US fully stands out in this regard, with its policies and
behaviour being certainly much worse than any other country, and
also much worse than what is contained in international treaties
including those of WIPO. <br>
<blockquote
cite="mid:alpine.LRH.2.00.1506121341080.30188@post.law.miami.edu"
type="cite"> <br>
The US indeed has a maximalist copyright and IP agenda but that is
firmly situated in the Executive branch (US PTO and the White
House) far far more than the courts. <br>
</blockquote>
<br>
Again, in a global discussion such an internal US nuance counts for
little. How does it matter who wields the axe as long at it cuts the
neck.. The fact remains that keeping the global infrastructure of
naming and numbering, and technical protocols, under US's unilateral
control and jurisdiction is very dangerous in that it gives further
strong leverage to various kinds of global hegemonies of the US,
including, as in this case, means of possible coercion to enforce
its policies and law on the whole world, which it in any case tries
its best to do. This of course is completely unacceptable to the
overwhelming majority of the world's population, howsoever the US
and ICANN may try to stamp this continued misappropriation with
'community's assent' through the heavily rigged, almost fake,
process of oversight transition that is currently underway. <br>
<br>
(I do acknowledge that in your earlier email you had referred to
this problem of US hegemony and preferred that ICANN gets
incorporated in another country's jurisdiction. I however still
believe that international law is both the best and the more
plausible option - even if there is a considerable amount of
evolutionary, and innovative, work to be done for this purpose. )<br>
<br>
parminder <br>
<br>
<blockquote
cite="mid:alpine.LRH.2.00.1506121341080.30188@post.law.miami.edu"
type="cite"> <br>
On Fri, 12 Jun 2015, parminder wrote: <br>
<br>
<blockquote type="cite"> <br>
<br>
On Thursday 11 June 2015 07:42 PM, Michael Froomkin - U.Miami
School of Law <br>
wrote: <br>
Can you give me an example of what you consider a good
model for an <br>
'international jurisdiction' application -- ideally one
where someone <br>
has succeeded with a human-rights based challenge? <br>
<br>
I would also question the claim that no national
jurisdiction could <br>
be asked (or trusted) to undertake a stewardship role on
behalf of <br>
the international community. Saves reinventing the legal
wheel. <br>
<br>
I just don't have much faith in the international tribunal
option <br>
because 1) it would take years to set up; 2) the lack of
relevant <br>
international law would create massive uncertainty; 3)
cases would be <br>
even more costly than those in the US or the like. <br>
<br>
As regards your IP example below, I would only note that
there are <br>
meaningful differences between the IP laws of various
states, and <br>
that WIPO's view - which likely would dominate in an
international <br>
forum - is far more friendly to IP rights and less open to
HR claims <br>
than the US courts have shown themselves to be. Indeed, I
would have <br>
thought that WIPO's IP maximalist views were in themselves
proof that <br>
the international route was deeply suspect. <br>
<br>
<br>
I will respond to the earlier paras of your email in a
subsequent email. First on <br>
your response to the 'problem scenario' I presented. <br>
<br>
You of course know that US's IP (intellectual property) position
is WIPO ++, <br>
something that US itself clearly acknowledges and which is one
of the most <br>
problematic basis of all the plurilateral free trade agreements
that US is <br>
currently focussing on, and which are facing the brunt of much
global civil <br>
society criticism. <br>
<br>
Further, the US courts have been rather virulent with regard to
furthering this <br>
maximalist IP agenda, including in an extra-territorial manners,
and including <br>
ordering various kinds of seizure of properties, physical or
otherwise. And this <br>
includes domain names. These facts I understand are too well
know for them to <br>
require elaboration or instantiation. <br>
<br>
If ICANN is subject to international law/ jurisdiction and
international <br>
oversight, it will remove the jurisdiction of US courts and
other various kinds <br>
of US executive and legislative authorities which have the
world's most IP <br>
maximalist agenda, and also a political will for its ham-handed
enforcement. <br>
Under international jurisdiction and oversight, ICANN would be
required to only <br>
take such IP related steps that flow from WIPO and other
international treaties <br>
which have been agreed to by all nations, and which currently
are rather softer <br>
than US's IP standards. <br>
<br>
I gave the example of the pharma sector, but soon such one-sided
IP regime and <br>
its blunt enforcement, being developed by the US, will be found
as problematic in <br>
the food sector, for agri inputs like seeds, data based
informational products <br>
and services (which themselves increasingly underpin every
sector), and so on... <br>
And as every sector and business becomes digital in its core
processes and <br>
components, control over the root of the Internet, and its
numbers, naming and <br>
routing protocols and processes, becomes another very important
means to rule <br>
the world. We may be playing with fire here. <br>
<br>
parminder <br>
<br>
<br>
<br>
On Thu, 11 Jun 2015, parminder wrote: <br>
<br>
<br>
<br>
On Thursday 11 June 2015 04:41 AM, Michael Froomkin
- <br>
U.Miami School of Law wrote: <br>
Just to head off a possible and no doubt <br>
unintentional misunderstanding: <br>
<br>
Non-US persons have recourse to US courts for
many <br>
things, including contractual <br>
rights. Non-US persons located outside the US
do <br>
not, in the main, have the right to <br>
make constitutional claims or defenses against
the <br>
US government. But since ICANN, or <br>
New New Co., is not part of the US government,
this <br>
is not relevant. <br>
<br>
<br>
As you confirm below, one can make make claims or
sue <br>
with respect mostly to private law violations, <br>
like contractual deficiencies and the such, but not
on <br>
public law issues, and human rights issues. <br>
It is the latter that is most important and the
basis of <br>
my argument for international jurisdiction <br>
for ICANN (other than the important democratic
principle <br>
that whether any jurisdiction is open to be <br>
employed by anyone or not, a given jurisdiction has
to be <br>
one which includes all affected persons as <br>
democratic constituencies for determining and
building <br>
that jurisdiction, which all important <br>
democratic aspect is strangely fully being side
stepped <br>
in this discussion. 'No governance/ <br>
jurisdiction without representation' which is almost
<br>
exactly the slogan on which the US fought for <br>
its independence - it now needs to give a thought to
<br>
those of others too...) <br>
<br>
You asked for an example of a problematic scenario,
let <br>
me use the one which I have lately used in a <br>
few places. Excuse me to just cut paste from my
earlier <br>
posting to another list - to the Working <br>
Group on ICANN Accountability, which btw took no
note of <br>
it at all: <br>
<br>
(Quote from an earlier posting to another elist
begins) <br>
<br>
One need not even provide a scenario, but let
me <br>
try it - entirely hypothetical at this <br>
stage, but extreme plausible. Sun
Pharmaceuticals <br>
is an Indian generic drugs company, <br>
one of the world's largest, and providing
drugs to <br>
most developing countries, at a <br>
fraction of the prices that patented drug <br>
equivalents are available for . There is a lot <br>
of literature on how Indian generic drug
industry <br>
has helped fight and stabilise the <br>
AIDS situaton in Africa, and also with regard
to <br>
other diseases all over the world. <br>
Meanwhile, US pharma industry with the backing
of <br>
the US government has employed all <br>
possible means including those that are
suspect <br>
from an international law point of view <br>
to thwart and weaken the Indian generic drugs
<br>
industry for reasons which are obvious -- <br>
including getting seized in international
waters <br>
and neutral protected global shipping <br>
lanes supplies being shipped between two
developing <br>
countries in both of which the <br>
transaction is perfectly legal (There is the
famous <br>
case of supplies being exported from <br>
India to Brazil being seized off Netherlands's
<br>
coast on US gov's behest.) ... Just to <br>
give an idea of how 'tense' things are in this
<br>
area. <br>
<br>
Now, extending the hypothetical, lets say that
Sun <br>
Pharma gets for itself a gtld <br>
.Sunpharma (which btw if they ask me I'd
advice <br>
them not to bec of obvious dangers as <br>
clear from the following).. and meanwhile
extends <br>
its global business to online <br>
platforms, which is kind of the normal
direction <br>
that everything would go. .Sunpharma <br>
then becomes or denotes the digital space
where the <br>
company does much of its global <br>
business, including management of company's
global <br>
affairs and so on. <br>
<br>
Meanwhile, one or the other Intellectual
property <br>
(IP) related flare up occurs, as <br>
routinely does, and the US pharma industry
cries <br>
foul over certain global commerce <br>
activities of Sun Pharma.... We are, say, in
2025 <br>
and everything is so digitalised and <br>
networked and so on, that the Sunpharma online
<br>
space has become basic to SunPharma's <br>
international operations - it becomes the
'cloud' <br>
that underpins the company's business <br>
(which it has a right to do - meaning to be
able <br>
to own and leverage a global online <br>
space under its own name and a trade name name
<br>
derived gtld). . US pharma approaches US <br>
courts and seeks seizing of .Sunpharma as this
<br>
asset is made available and controlled <br>
from within the US jurisdiction; and the court
<br>
agrees and accordingly directs ICANN.... <br>
The global DNS system practically unravels, at
<br>
least its global legitimacy does... <br>
<br>
We know that US courts have many times been <br>
approached to seize domain names that are <br>
owned by outside groups and largely work
outside <br>
the US, and on many different kinds of <br>
grounds as well. This is common knowledge and
I <br>
will not try to begin providing <br>
examples. And this right of such seizures or
to <br>
otherwise being able to judge the <br>
public interest nature of ICANN's work lies
not <br>
only with the US courts but also some <br>
executive agencies like the Office of Foreign
<br>
Assets Control, and I am sure there must <br>
be many more. I had earlier asked this
particular <br>
stress test to be applied but for no <br>
clear reasons it never is. If we can cherry
pick <br>
our stress tests, they really are not <br>
stress tests, whatever other purpose they
might <br>
serve. <br>
<br>
There is simply no solution to the problem of
<br>
letting US courts and US's empowered <br>
executive agencies routinely judge and enforce
<br>
their will wrt the public interest impact <br>
of ICANN's global governance activities than
to <br>
incorporate ICANN under international <br>
law and get corresponding immunity from US
domestic <br>
law. I repeat, there is simply no <br>
other way. Period. <br>
<br>
Therefore if we indeed are worried about the
role <br>
and authority of US courts vis a vis <br>
ICANN's global governance activities, lets be
<br>
consistent. I have held back commenting <br>
here, because I see that the two key framing
issues <br>
of accountability - accountability <br>
to which community/ public, and the issue of <br>
jurisdiction - have simply been <br>
sidestepped, and in default there is no
meaning to <br>
thrashing out minute details. " <br>
<br>
<br>
(quote ends) <br>
<br>
parminder <br>
<br>
<br>
If a corporation is located in a US state,
then it <br>
can be sued there by **anyone*** from <br>
***anywhere*** so long as they are in fact
alleging <br>
facts showing they were wronged by <br>
it. In other words, the issue is what (mainly
<br>
private law) rights one might have to <br>
assert, not whether the court will hear you
due to <br>
your citizenship or domicile or even <br>
(if represented by counsel) location. <br>
<br>
<br>
On Wed, 10 Jun 2015, Seth Johnson wrote: <br>
<br>
On Wed, Jun 10, 2015 at 2:51 PM, Mawaki
<br>
Chango <a class="moz-txt-link-rfc2396E"
href="mailto:kichango@gmail.com"><kichango@gmail.com></a>
wrote: <br>
Simple and maybe trivial question,
<br>
again (since my previous one <br>
about <br>
delegation hasn't found a taker.)
<br>
<br>
Scenario 1*: I am a citizen of
Togo, <br>
quite a small country <br>
sitting on the <br>
belly of Africa to the west (you
may <br>
check our macro economic <br>
indicators in <br>
the CIA Facebook or from the World
Bank <br>
online sources.) I am a <br>
domain name <br>
registrant. In year 2018 ICANN
makes a <br>
decision, later upheld by <br>
the <br>
conflict resolution mechanism in
place, <br>
but which I think <br>
violates my <br>
fundamental rights as I understand
them <br>
by any international <br>
standards. I am <br>
even pretty convinced that I might
win <br>
the case in a US court <br>
based on the <br>
documentation available
/jurisprudence <br>
in that country. Problem <br>
is, I have <br>
no access to the institutional <br>
resources that would allow me to <br>
use the US <br>
judicial system as a plaintiff,
much <br>
less the financial <br>
resources it would <br>
take to get a lawyer to represent
my <br>
interests. <br>
<br>
Is that -- the need for everybody
to be <br>
equal before the law, in <br>
practice, <br>
and have their rights equally
secured, <br>
-- in your view, a <br>
problem worthy of <br>
our attention? If so how can we
address <br>
it. <br>
<br>
<br>
<br>
It is. But no, you would not have
recourse <br>
to US courts. The problem <br>
for the international arena is that
nobody <br>
has that "trump card" <br>
recourse that keeps governments in check
<br>
*other than* those who have a <br>
claim that their own government is doing
or <br>
allowing things to happen <br>
that violate their own fundamental
rights as <br>
a citizen. The kind of <br>
rights you get internationally are
really <br>
almost what we call <br>
statutory rights -- the problem being
that <br>
the "legislature" can <br>
always rewrite those kinds of rights.
Or, <br>
since in fact going and <br>
revising a treaty provision regarding
rights <br>
poses some political <br>
difficulty, what you'll see more often
is <br>
that the rights expressed in <br>
treaties have no more weight against
things <br>
like "national interests" <br>
or "national security" or the "war on"
x, y, <br>
and z -- than a <br>
"balancing standard." Governments can
well <br>
do whatever they say is <br>
necessary (like vacuum up all
communications <br>
for surveillance, or for, <br>
hey, regular spying) for their national
<br>
interests and they essentially <br>
just "bear in mind" whatever rights are
<br>
expressed in treaties. And no <br>
judge in an ostensible international
tribunal <br>
can really simply cancel <br>
a treaty the way they can an
unconstitutional <br>
law in a national <br>
context (without a clear founding act
prior <br>
to the government, where <br>
the people(s) claim their priority and <br>
authorize government(s) to <br>
proceed only under certain limits).
Treaties <br>
are agreements among <br>
governments, so what the governments
"meant" <br>
is what you have to <br>
deliberate over in interpreting the
treaties <br>
-- not over whether the <br>
people have rights regardless of the <br>
governments' intention in the <br>
treaty. A judge would at best weigh
treaty <br>
elements and try to <br>
articulate how to settle all parts
without <br>
saying any part is <br>
"unconstitutional." The problem is how
to <br>
get the closest you can to <br>
that kind of a "trump card" standing for
<br>
fundamental rights. <br>
<br>
An ostensible "constitution" among <br>
governments (like the ITU's) has <br>
the same problem. In general, the way
the <br>
real claim of priority of <br>
the people and their rights happens is
when <br>
the people self-evidently <br>
act to fill in the gap when a government
is <br>
rendered illegitimate (or <br>
overthrown): acting independent of the <br>
pre-established government to <br>
select delegates to their own
constitutional <br>
convention, draft a <br>
constitution, and then ratify it -- they
<br>
thereby set a definitive <br>
historical register of the people
setting <br>
limits that the government <br>
must thenceforth operate within to be <br>
legitimate. This is called the <br>
"constituent power." Historians point
at <br>
Massachusetts as the first <br>
US colony/state to exercise the
consttuent <br>
power that way -- when the <br>
towns rejected the state constitution
the <br>
state legislature had <br>
written for them and insisted on having
their <br>
own constitutional <br>
process. It was done by similar
principles <br>
for the US federal <br>
constitution. That's how you get a <br>
fundamental right "trump card." <br>
<br>
If you have that, and it's exercised a
few <br>
times well or for a while, <br>
then you have a situation where
goverments <br>
are in check -- they don't <br>
overreach too obviously, or they test
the <br>
boundaries but they get <br>
trumped by a judiciary that's rooted
that <br>
way. <br>
<br>
You posed the question of equal rights
before <br>
the law, in the <br>
international context. I certainly do
not <br>
advocate a global <br>
revolution where all the people(s) seize
a <br>
moment to stop their <br>
governments and tell them how they may
all <br>
proceed. <br>
<br>
What I have tended to suggest is
approaches <br>
that can be interim <br>
measures that tend towards the
principles <br>
that we want to have in <br>
play, but which we can't yet quite have
in <br>
play. <br>
<br>
One approach that seems like a way
towards <br>
that kind of conception <br>
might be: Imagine a bicameral "House of
<br>
Rights" or more narrowly an <br>
"International Internet Communications
Rights <br>
Forum." It doesn't need <br>
to say "Rights," though that's the
point, so <br>
maybe call it an <br>
"Internet Stewards House." This is
modeled <br>
like a legislature, with a <br>
house to represent countries equally,
and <br>
another house to represent <br>
populations proportionally -- except
it's not <br>
empowered to write law <br>
(or treaties), but rather to play the
role of <br>
voting to *veto* acts of <br>
other (or some one or few other) <br>
intergovernmental bodies that <br>
actually do start enacting binding <br>
"legislation." You might be able <br>
to get freedom-loving countries to
endorse <br>
constructing something like <br>
that, and while it's not as solid as
court <br>
rulings that keep all <br>
lawlike activities in check more <br>
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 <br>
it conveys something of <br>
the kind of concerns and how they might
be <br>
approached that we should <br>
really have in mind rather than blindly
<br>
handing things off to the <br>
international arena (which is really
*always* <br>
"intergovernmental" -- <br>
governments are the entities that act
there). <br>
<br>
So, that's a sort of answer, stab at <br>
describing things properly and <br>
with some sort of practical conception.
I <br>
don't press specific <br>
solutions though, just describe notions
that <br>
I think can give people a <br>
better understanding of the real nature
of <br>
the difficulties and <br>
problems involved. <br>
<br>
Ponder that; you'll think of plenty of <br>
problems with it. But the <br>
important thing is this is a far more
real <br>
characterization of the <br>
situation. And I describe an idea like
this <br>
solely to set a proper <br>
stage for talking about things with a
better <br>
sense of what's going on. <br>
Take it as a brainstorm. But also take
it as <br>
a reality check and a <br>
call and challenge to try to define and
<br>
understand the situation <br>
properly and well. <br>
<br>
(The above line of exposition talks
mostly <br>
about governmental-related <br>
issues. The issues brought by the
corporate <br>
form are a whole other <br>
area that also needs fuller
appreciation. <br>
And really, we most want <br>
not to be so governmental [even those of
us <br>
stressing the validity of <br>
the role of government]; we want to just
<br>
build our Internet and let <br>
that be mostly a discussion of how to
solve <br>
problems in a technical <br>
way and one where our rights aren't on
the <br>
line.) <br>
<br>
See what you think of that. <br>
<br>
<br>
Seth <br>
<br>
Thanks <br>
<br>
(*) I only have one scenario for
now <br>
but I'm numbering #1 just <br>
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" <br>
<a class="moz-txt-link-rfc2396E"
href="mailto:seth.p.johnson@gmail.com"><seth.p.johnson@gmail.com></a>
wrote: <br>
<br>
I believe the most important
<br>
focus is on the <br>
question of how to <br>
install effective
fundamental <br>
liberties limits in <br>
the context of an <br>
international political
forum. <br>
That's how you can <br>
hope to maintain <br>
the type of stewardship
context <br>
we want associated <br>
with a medium of <br>
communication. The presence
of <br>
recourse of that <br>
sort -- related to <br>
being based in a national
context <br>
-- is one of the <br>
main reasons why <br>
ICANN has not gone further
off <br>
the rails. Same as <br>
for government in <br>
general in such a national <br>
context: we don't get the <br>
government <br>
meddling specifically
because the <br>
relationship to <br>
the national context <br>
(via the bare presence of
NTIA) <br>
means the people (at <br>
least of the US) <br>
have recourse against it if
it <br>
does. <br>
<br>
Keep in mind that one of the
<br>
chief reasons why Obama <br>
(and his <br>
predecessor) have gone off
the <br>
rails with <br>
surveillance and other <br>
fundamental rights
violations is <br>
because they have <br>
the notion that the <br>
international arena provides
<br>
means to act that way <br>
without the <br>
recourse we have against it
<br>
domestically. There's <br>
still the problem <br>
of laundering the
surveillance by <br>
having private <br>
corporations (whether <br>
telco or app) do it on the <br>
government's behalf. But <br>
we see an effort <br>
at long last to try to <br>
"legitimize" what they're <br>
doing that way at <br>
least (more apparent effort
to <br>
not violate citizens <br>
in the domestic <br>
sphere), because we finally
got <br>
standing in the <br>
courts, and <br>
documentation that was taken
<br>
seriously via Snowden. <br>
Still just <br>
domestic, so that doesn't
answer <br>
general concerns, <br>
but this should <br>
highlight the nature of the
<br>
problem. You don't <br>
actually have <br>
fundamental rights in the <br>
international arena, no <br>
matter how many <br>
human rights treaties you
pass. <br>
That's not what <br>
secures rights <br>
against acts of governments.
<br>
<br>
Note that this is stuff the
UN <br>
has been utterly <br>
clueless about for <br>
years and years and years,
along <br>
with many <br>
followers-on. And I think <br>
in general the parties who
have <br>
been acting in the <br>
international arena <br>
like it that way. We, the <br>
people(s), are really the <br>
ones to bring it <br>
into the discourse in a real
way, <br>
now that we are <br>
here in proceedings <br>
that deign to appear to
engage us <br>
substantively in <br>
international <br>
policy. <br>
<br>
<br>
Seth <br>
<br>
On Wed, Jun 10, 2015 at
10:36 AM, <br>
Michael Froomkin - <br>
U.Miami School of <br>
Law <a
class="moz-txt-link-rfc2396E"
href="mailto:froomkin@law.miami.edu"><froomkin@law.miami.edu></a>
<br>
wrote: <br>
On Wed, 10 Jun 2015,
Chris <br>
Prince <br>
Udochukwu Njoku wrote:
<br>
<br>
<br>
Parminder is <br>
emphasizing a <br>
true point. An <br>
organization <br>
which represents
<br>
the <br>
interests of
many <br>
nations, <br>
though located
in one <br>
nation <br>
(as it must be)
<br>
must <br>
not be subjected
to <br>
laws <br>
that ought to be
(and <br>
are) <br>
for national <br>
<br>
<br>
<br>
It is, I think,
possible to <br>
act as a <br>
trustee of
international <br>
interests <br>
while still having <br>
accountability rooted <br>
in national law. It
may <br>
not be <br>
possible to
accommodate the <br>
desires of <br>
governments to, in
effect, <br>
serve <br>
directly on the
governing <br>
body given the <br>
view of e.g. the
Brazilian <br>
government that this
is <br>
unacceptable <br>
subordination to
another <br>
state, but <br>
some may see that as a
<br>
feature rather <br>
than a bug. <br>
<br>
<br>
organizations.
This <br>
should <br>
be the
definition of <br>
international <br>
jurisdiction <br>
here. If the
host <br>
nation's <br>
laws don't
actually <br>
accommodate the
<br>
multinational <br>
stakeholding
nature <br>
of the <br>
organization,
it's a <br>
ripe <br>
clue to the need
<br>
for <br>
relocation to a
place <br>
that <br>
is more friendly
to <br>
the <br>
organization's <br>
operations. <br>
<br>
<br>
The above contains a
term <br>
that (to a <br>
lawyer) has multiple <br>
possible <br>
meanings. <br>
The traditional way to
" <br>
accommodate the <br>
multinational ...
nature" <br>
of an <br>
organization is to <br>
incorporate it in <br>
Switzerland, and have
no <br>
effective <br>
supervision. FIFA.
IOC. <br>
No thanks. <br>
<br>
So I would ask, what
is the <br>
threat model <br>
here? What is a
(mildly <br>
realistic) <br>
example of a scenario
in <br>
which one fears <br>
the entity will do <br>
something <br>
legitimate and a
national <br>
court (of the <br>
US, Canada, the nation
of <br>
your <br>
choice) would have an
<br>
appreciable chance <br>
of blocking it? I
would <br>
note, <br>
for <br>
example, that the only
time <br>
I can think <br>
of that a US court <br>
overruled <br>
ICANN <br>
was when it froze out
one <br>
of its own <br>
directors because the
staff <br>
disagreed <br>
with his views. That
<br>
violated <br>
California law
empowering <br>
directors not <br>
to <br>
mention any sense of <br>
natural justice. <br>
The result was not
only <br>
just, it <br>
was <br>
necessary. And it is
<br>
Exhibit A as to <br>
why we cannot simply
trust <br>
in <br>
ICANN, <br>
or New New Co's, good
<br>
faith. <br>
<br>
In other words, I
submit <br>
that national <br>
court supervision in
an <br>
appropriate <br>
and democratic
jurisdiction <br>
is far, far <br>
more likely to produce
good <br>
outcomes <br>
than bad ones, while
the <br>
removal of this <br>
valuable check is
almost <br>
certain to <br>
lead to difficulties.
What <br>
is more, <br>
those difficulties
will not <br>
be <br>
prevented by having
the <br>
body be <br>
"international" for
any <br>
currently known <br>
meaning of the term. <br>
<br>
Contrary to other
messages <br>
in this <br>
thread, I do not
believe <br>
that there <br>
is <br>
much in the way of <br>
effective monitoring <br>
of many multi-national
<br>
treaty <br>
bodies <br>
other than by action
of the <br>
member <br>
states. No one else
has <br>
much real <br>
leverage over WIPO,
GATT, <br>
you name it. <br>
NGOs have some moral
and <br>
intellectual suasion,
but <br>
some of their <br>
clout also comes from
the <br>
fact <br>
that <br>
it influences or might
<br>
influence the <br>
members. <br>
<br>
I prefer to attempt to
<br>
engineer a much <br>
surer means of dealing
with <br>
major <br>
and <br>
substantially
foreseeable <br>
problems. <br>
<br>
<br>
On Jun 10, 2015
11:27 <br>
AM, <br>
"parminder" <br>
<br>
<a class="moz-txt-link-rfc2396E"
href="mailto:parminder@itforchange.net"><parminder@itforchange.net></a>
<br>
wrote: <br>
<br>
<br>
On Tuesday
09 <br>
June <br>
2015 09:09 PM, <br>
Michael <br>
Froomkin -
U.Miami <br>
School of
<br>
Law wrote:
<br>
> On
Tue, 9 Jun <br>
2015, <br>
parminder wrote:
<br>
> <br>
>>
Are you <br>
saying that <br>
it is not
possible <br>
for ICANN <br>
to undertake <br>
the <br>
>>
functions <br>
that it <br>
needs to <br>
>>
undertake <br>
while <br>
being an <br>
international <br>
institution <br>
incorporated <br>
under <br>
>>
international <br>
law, <br>
and free <br>
>>
from any <br>
countries <br>
jurisdiction in
terms <br>
of its <br>
basic <br>
governance
<br>
>>
functions? I <br>
just <br>
want to be
clear. <br>
> <br>
> I
don't know <br>
what an <br>
"an
international <br>
institution <br>
incorporated <br>
under <br>
>
international <br>
law" is <br>
except bodies
like <br>
FIFA <br>
(under Swiss <br>
law), or
UN <br>
>
bodies, or sui <br>
generis treaty <br>
bodies. It <br>
is certainly <br>
*possible*
for <br>
> ICANN
to have <br>
any of <br>
those statuses
and to <br>
"function"; as
far <br>
as I can <br>
> tell,
however, <br>
it's <br>
just not
possible to <br>
build <br>
in meaningful <br>
>
accountability <br>
in <br>
those
structures. <br>
<br>
There are
of <br>
course <br>
problems and
issues <br>
everywhere, but
it <br>
can <br>
hardly be
<br>
said that
UN <br>
and/or <br>
treaty bodies
work <br>
without <br>
meaningful <br>
accountability. <br>
Further, any new
<br>
international
treaty/ <br>
law <br>
establishing <br>
a new body
- an <br>
really <br>
international
ICANN <br>
for <br>
instance - can <br>
write all
<br>
the <br>
accountability <br>
method it or we
want <br>
to have <br>
written in it. <br>
> <br>
> There
is no <br>
general <br>
international
law of <br>
incorporation of
<br>
which I am
<br>
>
aware. <br>
Corporate <br>
(formation) law
is <br>
all <br>
national law.
That <br>
is the <br>
>
reality that <br>
must be <br>
confronted.
There is <br>
no <br>
place I can go <br>
to get an
<br>
>
international <br>
corporate
charter, <br>
and good <br>
thing too - why
<br>
should I
be <br>
> able
to exempt <br>
myself <br>
from national
law? <br>
<br>
This hits
a <br>
fundamental
issue - I <br>
see <br>
ICANN, in its
ideal <br>
form, <br>
as a <br>
governance
<br>
body, since <br>
it does
governance <br>
functions, and
not as <br>
a <br>
private <br>
corporation. <br>
So we need a new
<br>
international
treaty <br>
sanctifying <br>
ICANN as a
<br>
global <br>
governance body
- <br>
with its <br>
basic forms
largely <br>
unchanged,
with <br>
new <br>
accountability
means <br>
(including
judicial <br>
accountability) <br>
and <br>
not ways to be
able <br>
incorporate a
private <br>
kind of an
<br>
entity
outside <br>
national laws,
which <br>
is <br>
admittedly both
very <br>
difficult,
<br>
and rather
<br>
undesirable. <br>
<br>
parminder
<br>
<br>
> <br>
>> <br>
>> If
so, that <br>
would be <br>
an interesting <br>
assertion. <br>
Now, I am sure <br>
this is <br>
>>
not true. <br>
However, I <br>
am not an <br>
>>
international <br>
legal <br>
expert and not
able <br>
to right <br>
now build <br>
and <br>
>>
present the <br>
whole <br>
scenario for you
on <br>
>>
how it can be <br>
done. <br>
I am sure there
are a <br>
number <br>
of <br>
international <br>
>>
organisations <br>
that <br>
do different <br>
>>
kind of <br>
complex <br>
activities and
have <br>
found <br>
ways to do it
under <br>
>>
international <br>
law <br>
and
jurisdiction. <br>
> <br>
> But
those are <br>
in the <br>
main treaty
bodies. <br>
> <br>
>>
And if some <br>
new <br>
directions and <br>
evolutions <br>
are needed that
can <br>
also be <br>
>>
worked out <br>
(please <br>
see my last <br>
>>
email on this <br>
count). <br>
>> <br>
> <br>
> Here
we just <br>
disagree. I see
the <br>
task as <br>
monsterously
hard, <br>
the work <br>
> of a
decade or <br>
more. <br>
> <br>
>>
BTW it is a <br>
sad <br>
statement on the
geo <br>
political
economy of <br>
knowledge
<br>
>>
production in <br>
this <br>
area that <br>
>>
there is not <br>
one <br>
full fledged
scenario <br>
developed by
anyone <br>
on <br>
how <br>
>>
ICANN can <br>
undertakes <br>
its <br>
>>
activities <br>
under <br>
international
law/ <br>
jurisdiction -
which <br>
I am <br>
pretty <br>
>>
sure it can. <br>
Many <br>
parties, <br>
>>
including <br>
governments have
<br>
called for <br>
it, and yes I
agree <br>
someone <br>
>>
should come <br>
up with <br>
a full <br>
>> <br>
politico-legal and <br>
institutional <br>
description of <br>
how it can <br>
and should
<br>
>> be
done - <br>
with all <br>
the details <br>
>> in
place. And <br>
that <br>
is the sad part
of <br>
it, of <br>
how things stand
<br>
at the <br>
>>
global level, <br>
had <br>
now lopsided <br>
>> is
resource <br>
distribution,
all <br>
kinds of <br>
resources. <br>
>> <br>
> <br>
> Alas.
<br>
> <br>
>>
Not to shy <br>
away from <br>
responsibility -
I am <br>
happy <br>
to <br>
collaborate <br>
with <br>
>>
anyone if <br>
someone <br>
can out time <br>
>>
into it. <br>
>> <br>
>>
And no, it <br>
cannot be <br>
solved by any
other <br>
country <br>
jurisdiction. <br>
Apart <br>
>>
from it being <br>
still <br>
being wrong <br>
>> in
principle, <br>
how <br>
would US accept
that <br>
another <br>
jurisdiction <br>
is better
<br>
>>
than its own <br>
and <br>
accede to <br>
>>
such a <br>
change. <br>
Accepting the <br>
patently <br>
justified fact
that <br>
an <br>
>>
international <br>
infrastructure
should <br>
be <br>
>>
governed <br>
internationally,
on <br>
the <br>
other hand, is
much <br>
easier . <br>
>> <br>
> <br>
> I
would not <br>
dismiss <br>
this so
quickly. I <br>
take a <br>
substantial <br>
fraction
of <br>
> the
opposition <br>
to US <br>
residual control
(for <br>
that <br>
is all we are <br>
talking <br>
> about)
to be <br>
tied to <br>
the US's status
as <br>
defacto <br>
hegemon. <br>
Moving
ICANN <br>
> to
another <br>
state with <br>
a strong human
rights <br>
record <br>
would <br>
answer
that <br>
> part
of the <br>
critique. <br>
> <br>
> In my
view, a <br>
bespoke <br>
international <br>
structure is <br>
actually much <br>
harder <br>
> -- it
would <br>
need to <br>
be invented
almost <br>
from <br>
scratch. And it
<br>
is bound <br>
> to be
flawed; <br>
national rules
are <br>
the <br>
result of at
least <br>
decades if
not <br>
> more
of trial <br>
and <br>
error. <br>
> <br>
>>
parminder <br>
>> <br>
>> On
Tuesday 09 <br>
June <br>
2015 07:31 PM, <br>
Michael <br>
Froomkin -
U.Miami <br>
School <br>
>> of
Law wrote: <br>
>> I don't <br>
know <br>
what it means to
say <br>
that <br>
ICANN should be
<br>
subject <br>
>> to
<br>
"international <br>
>> <br>
jurisdiction <br>
and law". For
the <br>
relevant <br>
issues, that <br>
sounds <br>
>>
like a pretty <br>
empty <br>
set. <br>
>> <br>
>> As <br>
regards <br>
most of the sort
of <br>
things <br>
one might expect
<br>
to worry <br>
>>
about - e.g. <br>
fidelity to <br>
>> <br>
articles of <br>
incorporation -
<br>
international
law is <br>
basically
<br>
>>
silent. And <br>
there <br>
is no <br>
>> <br>
relevant <br>
jurisdiction
either. <br>
So I <br>
remain stuck in
the <br>
>>
position that <br>
there <br>
must be a <br>
>> state <br>
anchor <br>
whose courts are
<br>
given the <br>
job. It does <br>
not of <br>
>>
course need <br>
to be <br>
the US, <br>
>> <br>
although I <br>
would note that
the <br>
US <br>
courts are by <br>
international <br>
>>
standards not <br>
shy <br>
and <br>
>> <br>
actually <br>
fairly good at
this <br>
sort of <br>
thing. <br>
>> <br>
>> I do <br>
think, <br>
however, that it
<br>
should NOT <br>
be Switzerland,
<br>
as its <br>
>>
courts are <br>
historically <br>
>> <br>
over-deferential
to <br>
international
bodies <br>
- <br>
perhaps as <br>
part of <br>
>>
state policy <br>
to be <br>
an <br>
>> <br>
attractive <br>
location for
those <br>
high-spending <br>
international <br>
>>
meetings. <br>
>> <br>
>> I'd be <br>
real <br>
happy with
Canada, <br>
though. <br>
>> <br>
>> On Tue, <br>
9 Jun <br>
2015, parminder
<br>
wrote: <br>
>> <br>
>> <br>
>> <br>
>> <br>
On <br>
Tuesday 09 June
2015 <br>
06:26 <br>
PM, Michael <br>
Froomkin -
<br>
>>
U.Miami <br>
School of <br>
Law <br>
>> <br>
wrote: <br>
>> <br>
<br>
>> I <br>
think that
bodies <br>
which do <br>
not need to <br>
fear <br>
>>
supervision <br>
by <br>
>> <br>
legitimate
courts end <br>
up <br>
<br>
>> <br>
like FIFA. FIFA
had a <br>
legal <br>
status in <br>
Switzerland <br>
>>
that <br>
basically <br>
>> <br>
insulated it the
way <br>
<br>
>> <br>
that the
Brazilian <br>
document <br>
seems to <br>
suggest
would <br>
>> be
what they <br>
want <br>
>> <br>
for <br>
ICANN. (It's <br>
<br>
>> <br>
also the legal
status <br>
ICANN <br>
has at times <br>
suggested
<br>
>> it
would <br>
like.) <br>
>> <br>
<br>
>> <br>
The lesson of
history <br>
seems <br>
unusually clear
<br>
here. <br>
>> <br>
>> <br>
>> <br>
Agree <br>
that ICANN
cannot be <br>
left <br>
jurisdictionally
<br>
>>
un-supervised <br>
- that <br>
may be <br>
>> <br>
even <br>
more dangerous <br>
>> <br>
than the <br>
present
situation. <br>
However, <br>
the right <br>
>>
supervision <br>
or <br>
oversight is <br>
>> <br>
of <br>
international <br>
>> <br>
jurisdiction and
law, <br>
not <br>
that of the US .
This <br>
is what <br>
>>
Brazil has to <br>
make <br>
>> <br>
upfront <br>
as the <br>
>> <br>
implication of
what <br>
it is <br>
really seeking,
and <br>
its <br>
shyness <br>
>>
and reticence <br>
to <br>
>> <br>
say so <br>
is what I noted
as <br>
>> <br>
surprising in an
<br>
earlier <br>
email in this
thread. <br>
Not <br>
>>
putting out <br>
clearly <br>
what <br>
>> <br>
exactly <br>
it wants would <br>
>> <br>
lead to <br>
misconceptions
about <br>
its <br>
position, which
<br>
IMHO can <br>
>> be
seen from <br>
how <br>
>> <br>
Michael <br>
reads it. I am
<br>
>> <br>
sure <br>
this is not how
<br>
Brazil meant <br>
it - to free <br>
ICANN from
<br>
>>
all kinds of <br>
>> <br>
jurisdictional <br>
oversight <br>
>> <br>
whatsoever - but
then <br>
Brazil <br>
needs to say
clearly <br>
what is <br>
>> it
that it <br>
wants, <br>
>> <br>
and how <br>
can it can <br>
>> <br>
obtained.
Brazil, <br>
please <br>
come out of your
<br>
NetMundial
<br>
>>
hangover and <br>
take <br>
>> <br>
political <br>
responsibility for <br>
>> <br>
what you <br>
say and seek! <br>
>> <br>
>> <br>
parminder <br>
>> <br>
>> <br>
>> <br>
<br>
>> On <br>
Tue, 9 Jun 2015,
<br>
Mawaki <br>
Chango wrote: <br>
>> <br>
>> <br>
<br>
<br>
>> <br>
It's good to see
a <br>
law <br>
scholar <br>
involved
in <br>
>>
this <br>
discussion. <br>
I'll <br>
>> <br>
leave it <br>
to <br>
<br>
<br>
>> <br>
the Brazilian
party <br>
to <br>
<br>
<br>
>> <br>
ultimate tell
whether <br>
your <br>
reading is <br>
correct <br>
>> or
not. In <br>
the <br>
>> <br>
meantime <br>
I'd <br>
<br>
<br>
>> <br>
volunteer the <br>
following <br>
<br>
<br>
>> <br>
comments. <br>
>> <br>
<br>
<br>
>> <br>
On Jun 8, 2015
10:46 <br>
PM, <br>
"Michael <br>
Froomkin -
<br>
>>
U.Miami <br>
School of <br>
>> <br>
Law" <br>
<br>
<br>
>> <br>
<br>
<a class="moz-txt-link-rfc2396E"
href="mailto:froomkin@law.miami.edu"><froomkin@law.miami.edu></a>
<br>
wrote: <br>
<br>
<br>
>> > <br>
<br>
<br>
>> > <br>
Perhaps I'm <br>
misreading <br>
something, <br>
but I <br>
>>
read this <br>
document <br>
to <br>
>> <br>
make the <br>
<br>
<br>
>> <br>
following
assertions: <br>
<br>
<br>
>> > <br>
<br>
<br>
>> > <br>
1. All
restrictions <br>
on <br>
ICANN's <br>
location <br>
>>
must be <br>
removed. <br>
<br>
<br>
>> > <br>
>> <br>
<br>
<br>
>> <br>
And the question
<br>
reopened <br>
for <br>
deliberation by <br>
>>
all <br>
stakeholders, <br>
>> <br>
including <br>
<br>
<br>
>> <br>
governments
among <br>
others. <br>
<br>
<br>
>> <br>
Only the outcome
of <br>
such <br>
deliberation <br>
will be <br>
>>
fully <br>
legitimate <br>
>> <br>
within <br>
the <br>
<br>
<br>
>> <br>
framework of the
<br>
post-2015 <br>
<br>
<br>
>> <br>
ICANN. <br>
>> <br>
<br>
<br>
>> > <br>
2. ICANN does
not <br>
have to <br>
leave the <br>
US but <br>
>>
must be <br>
located in <br>
>> a <br>
place <br>
<br>
<br>
>> <br>
where the
governing <br>
law has <br>
<br>
<br>
>> <br>
certain <br>
characteristics, <br>
including <br>
not having
<br>
>>
the <br>
possibiliity <br>
>> <br>
that <br>
courts <br>
<br>
<br>
>> <br>
overrule ICANN
(or at <br>
<br>
<br>
>> <br>
least the IRP).
<br>
<br>
<br>
>> > <br>
<br>
<br>
>> > <br>
(And, as it
happens, <br>
the US <br>
is not <br>
such a <br>
>>
place....) <br>
<br>
<br>
>> > <br>
>> <br>
<br>
<br>
>> <br>
Not only
avoiding <br>
courts <br>
overruling <br>
relevant <br>
>>
outcomes of <br>
the <br>
>> <br>
Internet <br>
global <br>
<br>
<br>
>> <br>
community
processes, <br>
<br>
<br>
>> <br>
but also
examining <br>
and <br>
resolving the <br>
possible <br>
>> <br>
<br>
interferences/conflicts that <br>
<br>
<br>
>> <br>
might arise for
<br>
<br>
<br>
>> <br>
government <br>
representatives <br>
being <br>
subject to
a <br>
>>
foreign <br>
country <br>
>> <br>
law <br>
simply in <br>
<br>
<br>
>> <br>
the process of <br>
attending <br>
<br>
<br>
>> <br>
to their regular
<br>
duties (if <br>
they were <br>
to be <br>
>>
fully engaged <br>
with <br>
>> <br>
ICANN). <br>
>> <br>
<br>
<br>
>> <br>
Quote: <br>
>> <br>
>> <br>
>>
"From the <br>
Brazilian <br>
perspective the
<br>
existing <br>
structure <br>
clearly
imposes <br>
limits <br>
to the
participation <br>
>> <br>
>> <br>
>> ???of <br>
governmental <br>
representatives,
as <br>
it is <br>
unlikely <br>
that a <br>
representative <br>
of a foreign <br>
government <br>
>> <br>
w <br>
<br>
>> i <br>
>> ll
be <br>
authorized (by <br>
its own
government) <br>
to <br>
formally accept
a <br>
position
in a <br>
body <br>
pertaining to a
U. <br>
>> <br>
>> <br>
>> <br>
<br>
<br>
>> <br>
S. corporation."
<br>
>> <br>
<br>
<br>
>> <br>
This may be what
<br>
you're <br>
getting at <br>
with your
<br>
>>
point 3 <br>
below, but <br>
>> <br>
I'm not <br>
sure <br>
<br>
<br>
>> <br>
whether the
problem <br>
is <br>
<br>
<br>
>> <br>
only the fact
that <br>
governments have
<br>
to deal <br>
>>
with a <br>
corporate <br>
>> <br>
form/law <br>
or <br>
<br>
<br>
>> <br>
whether it is <br>
altogether <br>
<br>
<br>
>> <br>
the fact that it
is a <br>
single <br>
country <br>
law <br>
>>
without any <br>
form of <br>
>> <br>
deliberate <br>
<br>
<br>
>> <br>
endorsement by
the <br>
other <br>
<br>
<br>
>> <br>
governments (who
also <br>
have <br>
law making <br>
power <br>
>> in
their <br>
respective <br>
>> <br>
country <br>
just <br>
<br>
<br>
>> <br>
as the US <br>
government). <br>
>> <br>
<br>
<br>
>> <br>
Assuming your
reading <br>
is <br>
correct, and <br>
if <br>
>>
necessary <br>
complemented <br>
>> <br>
by my <br>
<br>
<br>
>> <br>
remarks above,
I'd be <br>
<br>
<br>
>> <br>
interested in
hearing <br>
from <br>
you about <br>
any <br>
>>
issues you <br>
may see <br>
with <br>
>> <br>
the BR <br>
gov <br>
<br>
<br>
>> <br>
comments. <br>
<br>
<br>
>> <br>
Thanks, <br>
>> <br>
<br>
<br>
>> <br>
Mawaki <br>
>> <br>
<br>
<br>
>> > <br>
<br>
<br>
>> > <br>
3. ICANN doesn't
have <br>
to <br>
change its <br>
form, <br>
>>
but it needs <br>
a form <br>
>> <br>
where <br>
<br>
<br>
>> <br>
governments are
<br>
comfortable. <br>
<br>
<br>
>> > <br>
<br>
<br>
>> > <br>
(And, as it
happens, <br>
the <br>
corporate <br>
form is <br>
>>
not such a <br>
>> <br>
form....) <br>
<br>
<br>
>> > <br>
<br>
<br>
>> > <br>
<br>
<br>
>> > <br>
What am I
missing? <br>
<br>
<br>
>> > <br>
<br>
<br>
>> > <br>
<br>
<br>
>> > <br>
<br>
<br>
>> > <br>
On Sat, 6 Jun
2015, <br>
Carlos <br>
A. <br>
Afonso
wrote: <br>
<br>
<br>
>> > <br>
<br>
<br>
>> >> <br>
For the ones who
are <br>
following the <br>
IANA <br>
>>
transition <br>
process: <br>
>> <br>
attached <br>
<br>
<br>
>> >> <br>
please find the
<br>
comments <br>
posted by <br>
the <br>
>>
government of <br>
Brazil <br>
>> <br>
on June <br>
03, <br>
<br>
<br>
>> >> <br>
2015, in
response to <br>
the <br>
call for <br>
public <br>
>>
comments on <br>
the <br>
<br>
<br>
>> >> <br>
CCWG-Accountability <br>
Initial <br>
Draft <br>
Proposal.
<br>
<br>
<br>
>> >> <br>
<br>
<br>
>> >> <br>
I generally
agree <br>
with the <br>
comments.
<br>
<br>
<br>
>> >> <br>
<br>
<br>
>> >> <br>
fraternal
regards <br>
<br>
<br>
>> >> <br>
<br>
<br>
>> >> <br>
--c.a. <br>
<br>
<br>
>> >> <br>
<br>
<br>
>> > <br>
<br>
<br>
>> > <br>
-- <br>
<br>
<br>
>> > <br>
A. Michael
Froomkin, <br>
<a
class="moz-txt-link-freetext" href="http://law.tm">http://law.tm</a>
<br>
<br>
<br>
>> > <br>
Laurie Silvers
& <br>
Mitchell <br>
Rubenstein
<br>
>>
Distinguished <br>
Professor <br>
>> <br>
of Law <br>
<br>
<br>
>> > <br>
Editor, Jotwell:
The <br>
Journal <br>
of <br>
Things We
<br>
>>
Like (Lots), <br>
>> <br>
jotwell.com <br>
<br>
<br>
>> > <br>
Program Chair,
We <br>
Robot 2016 <br>
| +1 <br>
(305) <br>
>>
284-4285 | <br>
>> <br>
<a
class="moz-txt-link-abbreviated" href="mailto:froomkin@law.tm">froomkin@law.tm</a>
<br>
<br>
<br>
>> > <br>
U. Miami School
of <br>
Law, P.O. <br>
Box <br>
248087, <br>
>>
Coral Gables, <br>
FL <br>
>> <br>
33124 <br>
USA <br>
<br>
<br>
>> <br>
<br>
> <br>
-->It's <br>
warm
here.<-- <br>
<br>
<br>
>> > <br>
>> <br>
<br>
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<pre wrap="">____________________________________________________________
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