[bestbits] Fwd: Is the Internet Really Free of US Control?

Sat Oct 22 11:52:07 EDT 2016

Ayden, Thanks for your comments. My responses are below.

On Tuesday 18 October 2016 09:38 PM, Ayden Férdeline wrote:
> Hi Parminder,
>
> Thanks for sharing your thoughts on this topic. I agree that it is
> appropriate and necessary to critically examine the IANA stewardship
> transition. I have read a number of articles documenting legitimate
> criticisms of the transition from different stakeholder groups.
> Nonetheless, I have not heard anyone say that the better solution
> would have been for ICANN not to become more accountable, not to let
> the stewardship of the IANA functions transition from the NTIA to the
> multistakeholder community.

I do not fully understand your last statement, esp what you are implying
by it. Please clarify. (BTW, you may know that ICANN board had clearly
said that the MS community you refer to is *not* representative of the
global public -- this when there was a proposal for a membership based
ICANN organisational model, which was rejected by ICANN/ US, even when
the 'MS community' wanted that. So, firstly there was no real community
based decision making process in the IANA transition, and secondly,
there is a big question on the representativeness of  the so called
'community' . I am open to be corrected on these points.)

>
> But let’s leave that aside for a moment. There is something in your
> article that I wanted to pick up upon, and I think it's important. You
> mention the delegation of .xxx and say it is being challenged in US
> courts for “for allegedly violating competition law.” Okay… Can you
> please explain to me your problem with this? .xxx is operated by ICM
> Registry, a company incorporated in the United States. If ICM has
> violated US antitrust laws, it is subject to the US legal system
> because ICM is incorporated in the United States, not because ICANN is
> headquartered in the United States.

I have no problem with .xxx as a US company being subject to US law, and
being forced to act or not act in particular ways by a US court.... But
if you read about the case you will see that ICANN is also sued, with
three called for causes of action against it.. This is what I am against
-- a US court should not be able to force ICANN's hand, in terms of its
policies and their implementation, which are of a global nature.

> Likewise, for your example of the generic drugs company, if they’re
> infringing upon someone else’s IP, I’m sure they’ll be sued in
> whatever jurisdiction the registry for “.genericdrugs” can be located
> within.

If, as in my example, .genericdrug is a private closed gTLD, the
registry is almost certainly to be in the country of incorporation of
the company .generic drug... So, there is nothing wrong with this
company being sued in the jurisdiction of its incorporation. As for "
infringing upon someone's else's IP" you must recognise that US laws on
this are often different, and more stringent, that many other countries.
And US and its allies are found to pushing their laws on to the rest of
the world, even when the two parties to a transacntion are both outside
these countries. See
http://www.business-standard.com/article/companies/dutch-customs-seize-indian-drugs-in-transit-industry-frets-112012300081_1.html 

> It doesn’t stand to reason to me that a dispute between two private
> parties, one of which is not based in and does not do business in the
> United States, is going to be resolved in a US court.

Firstly, I am talking not of private party disputes, but application of
public law, where the state is a party, as also in intellectual property
law. Second, I did not understand why you are saying is either party has
no interest in a country, that country wont take up the case.... It
will, if the other party has a good enough interest.

> Let’s inverse the scenario. Say ICANN was headquartered in India. A
> generic American drugs company operates “.genericdrugs” and is sued
> by, say, a Spanish competitor. Would they really file the lawsuit in
> India? Or would they file it in the United States, where the drugs
> company has its assets?

The equivalence would be not a Spanish plaintiff but an Indian one (as
in my example, is will mostly be US pharma business) -- as to where they
will sue, they will wherever they can have effective instrument of
enforcement - which could be where drug company has physical assets, or
digital assets (a gTLD)....  So, if we replace Spanish plaintiff by
Indian, yes, the Indian company will try and sue in India taking benefit
of the leverage that the US company's digital asset in India - the gTLD
- provides, and expecting the Indian court/ law to be more sympathetic
to its cause, than of the US company...

>
> I think it is useful to remember what the IANA transition was all
> about. It was about empowering the global, multistakeholder community
> to oversee the activities carried out by ICANN. It was not about
> making sure ICANN was not subject to US law.

That is your interpretation. The widely endorsed NetMundial statement
says it was about ICANN becoming a "truly global and international
organisation". With that I clearly judge not being subject to one
country's laws, courts, legislature and executive agencies. I cannot see
the term 'truly global and international; in less than that meaning.

>
> Finally, maybe it's the realist in me,

Dont take it personally, but status quo always presents the argument of
realism - has it ever been not so in history, but still how history is
full of positive changes......

> but I’d like to note that attempting to get “jurisdictional immunities
> as available to other global governance bodies like those of the UN”
> (to quote your article) sounds very time consuming and highly resource
> intensive.
Ok, if you are serious, let me give you an easy route... There is
this_United States International Organisations Immunities Act  __
<https://archive.icann.org/en/psc/annex9.pdf>_A US presidential decree
can make any organisation have the status of an international
organisation and qualify for immunity under it. and this includes
organisations that are not incoporated under international law. For
instance,/International Fertilizer and Development Center (IFDC) /was
first established as a private, nonprofit corporation under the laws of
the State of Alabama. However, in March 1977, IFDC was designated as a
public, nonprofit, international organisation by US Presidential Decree
11977, and granted immunities under _United States International
Organisations Immunities Act
<https://archive.icann.org/en/psc/annex9.pdf>_. See
_https://archive.icann.org/en/psc/corell-24aug06.html_

Why cant ICANN similarily be given jurisdictional immunity? I would very
much like to hear your and others' comments on this. Thanks.

> I am just trying to think how we might go about that? So we’d need
> 160+ sovereign states to sign an international treaty?

Yes, every time a treaty is made, 160 + states do it. And they do it
often. Just last week they did one to phase out an important greenhouse
gas.  (ICANN jurisdiction issue on the other hand has been hanging for
at least 13 years, and for 13 years people have been saying how will 160
+ countires ever do a treaty - but since then they have done many of them)

> You want established a “special digital bench of the International
> Court of Justice” and new “international laws”? And we – the
> multistakeholder community – would write them?

No, I can never think of allowing big business to sit on writing laws
and policies -- that is the death of democracy, and I do not know
whether you care for democracy or not.

> Who/what gives us that authority?

Are you asking this question to yourself?? Political authority comes
only form people, and businesses can never have it...

> I have not been following the IANA transition from the very beginning,
> but I will venture to guess that such an option was never on the
> table… that said, if I am mistaken and there was a missed opportunity
> to embark upon such an ambitious project, feel free to set the record
> straight… ;-)

Jursidiciton question was there from the start... They then said, let us
do it in the second post transition phase - and it is being considered
now...
>
> Thanks again for starting this conversation and sharing your Op-Ed.
> It's good to be able to have this dialogue.

Thanks, and I am happy to take it forward....

best regards, parminder
>
> Ayden Férdeline
> linkedin.com/in/ferdeline <http://www.linkedin.com/in/ferdeline>
>
>
>> -------- Original Message --------
>> Subject: Re: [bestbits] Fwd: Is the Internet Really Free of US Control?
>> Local Time: 17 October 2016 3:54 PM
>> UTC Time: 17 October 2016 14:54
>> From: m.i.franklin at gold.ac.uk
>> To: parminder <parminder at itforchange.net>, BestBitsList
>> <bestbits at lists.bestbits.net>, governance at lists.igcaucus.org
>> <governance at lists.igcaucus.org>,
>> irp at lists.internetrightsandprinciples.org
>> <irp at lists.internetrightsandprinciples.org>
>>
>>
>> Dear Parminder
>>
>> Thanks for the thumbs-up regarding the HRI series on openDemocracy
>> <https://opendemocracy.net/hri>. And, indeed, debate and action are
>> not always the same thing. But action and attitudes can be influenced
>> by debates that take internal, expert-driven issues out into the
>> wider world. And as the world is increasingly online, activists (and
>> academics) and policymakers (and designers) cannot any more expect
>> public fora to be ready and waiting for topics that are as arcane as
>> they are deeply political, and politicized.
>>
>> To that end, talk is not cheap, and actions do speak as loudly as words.
>>
>> Seeing this issue discussed in a public forum, and not surprisingly I
>> am advocating this particular one given the high-quality
>> contributions from people who are on these lists, and who are re also
>> active in a range of other networks (e.g. scholarly, policy-based,
>> activist), is becoming increasingly needed. Politicians are making
>> decisions based on a lack of access to the nuances of these issues,
>> to put it lightly.
>>
>> Might I also have that our students in universities are becoming
>> increasingly engaged in the implications of a range of internet
>> governance decisions and interventions by all stakeholders.... they
>> are seldom addressed in these circles even as they constitute the
>> leaders of tomorrow.
>>
>> Thanks to everyone on this series for committing to bringing these
>> debates out into the open!
>>
>> best
>>
>> MF
>>
>>
>> On 17/10/2016 15:05, parminder wrote:
>>>
>>>
>>>
>>> On Monday 17 October 2016 07:16 PM, Marianne Franklin wrote:
>>>>
>>>> Dear Parminder, Others (am also copying in the IRPC list).
>>>>
>>>> There is clearly still lots to debate,
>>>>
>>>
>>> Yes Marianne, but the political moment of reckoning does not wait
>>> for all debates to conclude - debates that has now been happening
>>> for more than 10 years. The jurisdiction question is being
>>> considered formally "right now" in the transition process, as it is
>>> called, In a few months it will be formally declared that the global
>>> multi stakeholder community - which is supposed to includes me and
>>> you, and all the debators -- have concluded by full or rough
>>> consensus that the current jurisdictional status remains the best
>>> bet for ICANN. The 'decision' will be touted in our name. IGC 11
>>> years ago took a political position in the middle of debates -
>>> political activism requires that. 11 years hence the debates cannot
>>> be less mature then they were before - I am just wondering, what
>>> happened meanwhile... Well, isnt that too an important question by
>>> itself to ask, and explore, for activists and academics alike. Just
>>> clarifying what was the accent of my posting. Meanwhile, yes, more
>>> debates and articles and comments continue to remain welcome, and
>>> shd keep coming. But maybe, civil society's job includes some
>>> political role too!
>>>
>>> Meanwhile I do recommend to everyone to read this excellent series
>>> of IG related articles published in OpenDemocracy and coordinated by
>>> Marianne. https://www.opendemocracy.net/hri . Debates, academic
>>> exercises, and political action must all go together.
>>>
>>> best regards
>>>
>>> parminder
>>>
>>>> on the macro level of past and future ownership and control of the
>>>> strategically important aspects of the internet's infrastructure
>>>> (content being another matter altogether). To date the debates
>>>> about ICANN, positions for/against and all other shades, have
>>>> occurred on lists with well informed, and committed participants.
>>>>
>>>> To date there is little out there for an informed, wider public.
>>>> This is why comments on the Prakash piece
>>>> <https://www.opendemocracy.net/digitaLiberties/pranesh-prakash/jurisdiction-taboo-topic-at-icann>,
>>>> or indeed others on this page that may relate to the spectrum of
>>>> issues that keeps all these lists alive and actively arriving in
>>>> our in=boxes, would help inform that wider audience.
>>>>
>>>> It is a key reason why I have been working with openDemocracy to
>>>> present these issues to a wider readership so all comments welcome
>>>> to the ICANN piece.
>>>>
>>>> Other articles, including a critical analysis of a UK-based
>>>> initiative for digital rights by Paul Bernal available at
>>>> https://www.opendemocracy.net/hri.
>>>>
>>>> warm wishes
>>>>
>>>> MF
>>>>
>>>> On 17/10/2016 14:07, parminder wrote:
>>>>>
>>>>>
>>>>>
>>>>> On Monday 17 October 2016 05:20 PM, Marianne Franklin wrote:
>>>>>>
>>>>>> Dear Parminder
>>>>>>
>>>>>> Thanks for sending over this piece in a growing literature on
>>>>>> ICANN and it future.
>>>>>>
>>>>>> Just to note that Pranesh's less than celebratory analysis for
>>>>>> the ICANN transition has been published on the openDemocracy
>>>>>> series, Human Rights and the Internet, at
>>>>>> https://www.opendemocracy.net/digitaLiberties/pranesh-prakash/jurisdiction-taboo-topic-at-icann.
>>>>>>
>>>>>>
>>>>> Thanks Marianne,
>>>>>
>>>>> Yes, absolutely not at all celebratory! I had read it a few months
>>>>> back, and should have had it in my mind when I made that comment.
>>>>> But then, isnt it surprising that when two of the very few CS
>>>>> groups in India consider that not much has happened with the so
>>>>> called 'transition' in terms of loosening of US control over
>>>>> ICANN, there is simply no murmurs in the CS community globally to
>>>>> actually take this issue up - in a political manner, like making a
>>>>> statement and so on. I may repeat what I have said so many tomes
>>>>> earlier - in all the multistakeholder meetings that I saw
>>>>> organised in India in the transition processes it was always
>>>>> concluded that there are two key issues to sort out - an
>>>>> 'external' oversight mechanism, and jurisdiction issue. What we
>>>>> have is an oversight which is hardly external, and the
>>>>> jurisdiction issue is being completely buried. But still it seems
>>>>> that everyone -- more or less --  is just celebrating the
>>>>> 'transition' with no critical take being adopted.
>>>>>
>>>>> As Pranesh's article points out, seeking a host country agreement
>>>>> or in other words jurisdictional immunity for ICANN from the US
>>>>> was the demand of Internet Governance Caucus in 2005. The all
>>>>> round social- political importance of the domain name system has
>>>>> only greatly enhanced in the last 10 years, and so the US's
>>>>> jurisdictional control over it should be ever less acceptable --
>>>>> but why is no major civil society group today able to get up and
>>>>> say the same thing which IGC said and asked for in 2005?
>>>>> Especially when a process is actually taking place which is
>>>>> formally examining the jurisdiction question. I sometimes
>>>>> participate in that ICANN WG on jurisdiction, where every effort
>>>>> is on to bury this question - and i finds almost no civil society
>>>>> voice there.
>>>>>
>>>>> People here may want to ponder this question - has the US
>>>>> stranglehold on the IG discourse actually tightened since then -
>>>>> meaning WSIS in 2005? Or perhaps there could be other reasons,
>>>>> which I did not think of, and others can enlighten me on. (not
>>>>> addressed to you Marianne :), it is general)
>>>>>
>>>>> Parminder
>>>>>
>>>>> PS: Excuse me to cc this to IGC list, where a similar discussion
>>>>> is on... Those who respond may exercise discretion whether they
>>>>> want to respond to both elists or one of them.
>>>>>
>>>>>
>>>>>
>>>>>>
>>>>>> best
>>>>>>
>>>>>> MF
>>>>>>
>>>>>>
>>>>>> On 15/10/2016 15:48, parminder wrote:
>>>>>>>
>>>>>>> -------- Forwarded Message --------
>>>>>>> Subject:
>>>>>>> 	Is the Internet Really Free of US Control?
>>>>>>> Date:
>>>>>>> 	Sat, 15 Oct 2016 20:11:26 +0530
>>>>>>> From:
>>>>>>> 	parminder <parminder at itforchange.net>
>>>>>>> To:
>>>>>>> 	governance at lists.igcaucus.org <governance at lists.igcaucus.org>,
>>>>>>> &lt <" bestbits\""@lists.bestbits.net>
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>> Hi All
>>>>>>>
>>>>>>> I wrote this commentary piece in the Economic and Political
>>>>>>> Weekly of India on ICANN's oversight transition. For such an
>>>>>>> important and multi-faceted event, it is surprising that I have
>>>>>>> come across no article that is other than absolutely celebratory
>>>>>>> about it, and catches properly the different nuances that are
>>>>>>> involved. Such a monochromatic discourse in the global IG space
>>>>>>> is not a good indication. There is an especial lack of views
>>>>>>> from a progressive and social justice perspective, and from the
>>>>>>> geopolitical South, both of which I have tried to catch in this
>>>>>>> brief article. 
>>>>>>>
>>>>>>>
>>>>>>>   *Internet Governance: Is the Internet Really Free of US Control?*
>>>>>>>
>>>>>>> "The recent decision of the United States government to cede its
>>>>>>> control over the internet’s naming and addressing system to the
>>>>>>> Internet Corporation for Assigned Names and Numbers (ICANN), a
>>>>>>> US-based international non-profit body, is heralded as a
>>>>>>> significant step towards the globalisation of internet’s core
>>>>>>> infrastructure. But with ICANN having no special jurisdictional
>>>>>>> immunity and subject to the whims of the judicial and
>>>>>>> legislative branches of the US government as well as many of its
>>>>>>> executive agencies, the decision seems more symbolic than
>>>>>>> meaningful."
>>>>>>>
>>>>>>> http://www.epw.in/journal/2016/42/web-exclusives/internet-governance.html
>>>>>>>
>>>>>>> Comments are welcome.
>>>>>>> parminder
>>>>>>>
>>>>>>>
>>>>>>> ____________________________________________________________
>>>>>>> You received this message as a subscriber on the list:
>>>>>>>      bestbits at lists.bestbits.net.
>>>>>>> To unsubscribe or change your settings, visit:
>>>>>>>      http://lists.bestbits.net/wws/info/bestbits
>>>>>>
>>>>>> -- 
>>>>>> Marianne Franklin, PhD
>>>>>> Professor of Global Media and Politics
>>>>>> Convener: Global Media & Transnational Communications Program
>>>>>> Goldsmiths (University of London)
>>>>>> Department of Media & Communications
>>>>>> New Cross, London SE14 6NW
>>>>>> Tel: +44 207 9197072
>>>>>> <m.i.franklin at gold.ac.uk>
>>>>>> @GloComm
>>>>>> http://www.gold.ac.uk/media-communications/staff/franklin/
>>>>>> Chair of the Global Internet Governance Academic Network (GigaNet)
>>>>>> Steering Committee/Former Co-Chair Internet Rights & Principles Coalition )
>>>>>> www.internetrightsandprinciples.org
>>>>>> @netrights
>>>>>>
>>>>>> Special Series Editor, Human Rights and the Internet 
>>>>>> https://www.opendemocracy.net/hri
>>>>>>
>>>>>> Digital Dilemmas: Power, Resistance and the Internet (Oxford University Press) 
>>>>>> http://global.oup.com/academic/product/digital-dilemmas-9780199982707?cc=nl&lang=en&q=Digital%20dilemmas&tab=reviews# 
>>>>>>
>>>>>> Championing Human Rights on the Internet (I-VI) 
>>>>>> https://www.opendemocracy.net/marianne-franklin/championing-human-rights-on-internet-part-six-summing-up-too-much-or-not-enough
>>>>>>
>>>>>> “What does (the Study of) World Politics Sound Like?” 
>>>>>> co-authored with Matt Davies in World Politics and Popular Culture: Theories, Methods, Pedagogies
>>>>>> http://www.e-ir.info/2015/04/22/edited-collection-popular-culture-and-world-politics/
>>>>>
>>>>
>>>> -- 
>>>> Marianne Franklin, PhD
>>>> Professor of Global Media and Politics
>>>> Convener: Global Media & Transnational Communications Program
>>>> Goldsmiths (University of London)
>>>> Department of Media & Communications
>>>> New Cross, London SE14 6NW
>>>> Tel: +44 207 9197072
>>>> <m.i.franklin at gold.ac.uk>
>>>> @GloComm
>>>> http://www.gold.ac.uk/media-communications/staff/franklin/
>>>> Chair of the Global Internet Governance Academic Network (GigaNet)
>>>> Steering Committee/Former Co-Chair Internet Rights & Principles Coalition )
>>>> www.internetrightsandprinciples.org
>>>> @netrights
>>>>
>>>> Special Series Editor, Human Rights and the Internet 
>>>> https://www.opendemocracy.net/hri
>>>>
>>>> Digital Dilemmas: Power, Resistance and the Internet (Oxford University Press) 
>>>> http://global.oup.com/academic/product/digital-dilemmas-9780199982707?cc=nl&lang=en&q=Digital%20dilemmas&tab=reviews# 
>>>>
>>>> Championing Human Rights on the Internet (I-VI) 
>>>> https://www.opendemocracy.net/marianne-franklin/championing-human-rights-on-internet-part-six-summing-up-too-much-or-not-enough
>>>>
>>>> “What does (the Study of) World Politics Sound Like?” 
>>>> co-authored with Matt Davies in World Politics and Popular Culture: Theories, Methods, Pedagogies
>>>> http://www.e-ir.info/2015/04/22/edited-collection-popular-culture-and-world-politics/
>>>
>>
>> -- 
>> Marianne Franklin, PhD
>> Professor of Global Media and Politics
>> Convener: Global Media & Transnational Communications Program
>> Goldsmiths (University of London)
>> Department of Media & Communications
>> New Cross, London SE14 6NW
>> Tel: +44 207 9197072
>> <m.i.franklin at gold.ac.uk>
>> @GloComm
>> http://www.gold.ac.uk/media-communications/staff/franklin/
>> Chair of the Global Internet Governance Academic Network (GigaNet)
>> Steering Committee/Former Co-Chair Internet Rights & Principles Coalition )
>> www.internetrightsandprinciples.org
>> @netrights
>>
>> Special Series Editor, Human Rights and the Internet 
>> https://www.opendemocracy.net/hri
>>
>> Digital Dilemmas: Power, Resistance and the Internet (Oxford University Press) 
>> http://global.oup.com/academic/product/digital-dilemmas-9780199982707?cc=nl&lang=en&q=Digital%20dilemmas&tab=reviews# 
>>
>> Championing Human Rights on the Internet (I-VI) 
>> https://www.opendemocracy.net/marianne-franklin/championing-human-rights-on-internet-part-six-summing-up-too-much-or-not-enough
>>
>> “What does (the Study of) World Politics Sound Like?” 
>> co-authored with Matt Davies in World Politics and Popular Culture: Theories, Methods, Pedagogies
>> http://www.e-ir.info/2015/04/22/edited-collection-popular-culture-and-world-politics/
>

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