[governance] Big Porn v. Big Web Ruling Could Spell Trouble for ICANN / was Re: new gTLDs

parminder parminder at itforchange.net
Sat Aug 25 07:56:32 EDT 2012 

On Thursday 23 August 2012 03:34 PM, Milton L Mueller wrote:
>
> Actually, Parminder you are confusing different things.
>

I think you are trying to be too clever to wriggle out of this, but not 
very successfully, for which see below...
>
> If there was someone willing and able to challenge ICANN's decision to 
> award .xxx on antitrust grounds in Europe, or in India, and ICM 
> Registry were domiciled in Europe or India, respectively, then an 
> adverse decision would make European or Indian law "applicable" to an 
> ICANN decision.
>

No, it will make European/ Indian decision applicable *only* to ICM 
registry and *not* to the ICANN. This is a straight forward and obvious 
fact despite your very clever attempt to twist it to suit you.

Lets say, IT for Change and your Internet Governance Project ( IGP) were 
doing a project together and the Indian government closes done IT for 
Change for financial irregularities or whatever. IGP would certainly be 
impacted by this Indian state's 'decision', but would it not be rather 
big stretch to say Indian state decisions have become 'applicable' to 
the IGP.

US laws can today close down ICANN, force it to rescind any of its 
agreement or change it. No European and Indian state can do anything 
like this. This is what is meant by applicability of the laws of a 
state, and Milton, you as a political theorist know this quite well. But 
still if you have to resort to such flimsy arguments itself shows how 
weak is the case of the status quo around the ICANN. You are just 
proving my case :)

> This is a problem, not with the US, but with nation-states' 
> territorial jursidcition exerting control over the internet.
>

And your solution to this problem is? As a key political actor in this 
space you must have some kind of a possible solution, and a possible 
roadmap to it.

BTW, I am reminded that unlike many others here, you are not for a free 
float fully independent ICANN, and would like to have appropriate 
political jurisdiction(s) apply to it, even if it just with your version 
of what are the only legitimate functions of any political jurisdiction 
- general procedural accountabilities, competion law, FoE etc (which 
simply represents a specific political ideology).  And further, coming 
to the original issue, your choice of this applicable political 
jurisdiction - more or less- is the US state. . Is this not a good 
approximation your position? I will be glad to be corrected though.

How then are you speaking so completely against nation state based 
jurisdiction. And correspondingly, what is your idea of the applicable 
non-national jurisdiction, and what is its practical shape?
>
> Let me say that I think this antitrust challenge has no merit and will 
> not go anywhere.
>

This is completely beside the point! Enough that it is 'possible' that 
the challenge will be upheld whereby ICANN will have to annul or change 
its decision. The world has to prepare its institutional systems keeping 
such clearly probable eventuality in mind and not react after the house 
has caught fire.

parminder
>
> *From:*governance-request at lists.igcaucus.org 
> [mailto:governance-request at lists.igcaucus.org] *On Behalf Of *parminder
> *Sent:* Tuesday, August 21, 2012 3:36 AM
> *To:* Salanieta T. Tamanikaiwaimaro
> *Cc:* governance at lists.igcaucus.org
> *Subject:* Re: [governance] Big Porn v. Big Web Ruling Could Spell 
> Trouble for ICANN / was Re: new gTLDs
>
>
> Sala,
>
> You are getting me wrong... I am not faulting ICANN's decision.... I 
> have no view on this particular decision of ICANN to have a .xxx gtld. 
> I am speaking about applicability of the jurisdiction of US courts on 
> all ICANN decisions. And since US courts apply US law, it is the 
> applicability of US laws over all ICANN decisions, which is also 
> called 'oversight'. And I dont like anything that calls itself a 
> global system/ infrastructure to be subject to laws that I do not have 
> an opportunity to participate in making. Simple democratic principle. 
> No legislation without representation.......
>
> The argument that US has strongest anti-trust laws is quite beside the 
> point.... But then if you have to pursue that line, US has some of the 
> worst IP laws, but still when an IP issue vis a vis any ICANN decision 
> comes up for judicial review, it will still be the same US courts and 
> US law, and not Brazilian courts and law.....
>
> Dont you think this is undemocratic, and unjustified.... parminder
>
> On Tuesday 21 August 2012 12:53 PM, Salanieta T. Tamanikaiwaimaro wrote:
>
>     My personal views are if anything I would say that the situation
>     proves that the system works. It means that decisions can be
>     subject to scrutiny. Having personally seen voluntary scrutiny
>     take place within ICANN and now seeing decisions being checked by
>     the legal system it shows that the organisation is answerable.
>
>     If anything, the US is probably the strictest enforcer of
>     antitrust laws in the world and standards for corporate governance
>     rate as among the highest if not the highest. This should inspire
>     confidence that decisions can be checked. For ICANN it means an
>     internal self evaluation and ongoing assessment to ensure that
>     they perform their obligations to the highest standards.
>
>     Organisations all over the world, governments included continue to
>     learn, grow and evolve that is part of life. You pick up and learn
>     and move on. It does not mean that all your actions are going to
>     be flawless - show me one perfect organisation and I will show you
>     Utopia. Of course that does not mean that we do not strive for
>     excellent
>
>      standards.
>
>     On Tue, Aug 21, 2012 at 6:45 PM, parminder
>     <parminder at itforchange.net <mailto:parminder at itforchange.net>> wrote:
>
>
>     This is a very important, and possibly a historic, news, which
>     exposing the meaninglessness of ICANN's claim of independence from
>     the US establishment.
>
>     A US court has given the go ahead to the anti-trust filing against
>     ICANN decision instituting the .xxx gtld . There is every
>     likelihood that this decision of ICANN may be found as going
>     against US laws. What would ICANN do in that case? At the very
>     least, it is quite probable that ICANN may be asked to put certain
>     new provisions in its registry agreement regarding .xxx, as has
>     been sought by the plaintiff. What would be ICANN's response in
>     that case?
>
>     Remember that each of the new gltds will be open to similar review
>     by US courts.
>
>     ICANN has lost a major battle regarding its claimed status as a
>     global organisation responsible only to the global community, a
>     claim which in any case had feet of clay....
>
>     And with it, also those who defend ICANN on the above ground have
>     lost a major battle. I hope such defendants on the list will
>     respond to this news and the paradox it poses.
>
>     It is now clear that ICANN is subject to US judicial review (which
>     of course it always was), and that its decisions can be struck
>     down by US courts, in which case, ICANN has just no option other
>     than to reverse its decisions. For those who have expressed lack
>     of clarity about the meaning of oversight, this is oversight.
>     Well, to me more precise, this is judicial review which is a part
>     of overall oversight.
>
>     parminder
>
>     On Tuesday 21 August 2012 06:37 AM, Robert Pollard wrote:
>
>         Salanieta
>
>         Thanks for these interesting links. I'm re-posting your
>         message with a new subject line, as the issue would seem to
>         deserve a separate thread from "new gTLDs".
>
>         Although the suit may have some implications for new gTLDs,
>         many of the allegations re antitrust issues re the .xxx tld
>         are based on the the particular history of the establishment
>         of .xxx and the actions of ICM Registry, LLC in obtaining
>         control of it
>
>         Robert
>
>         On Mon, Aug 20, 2012 at 6:44 PM, Salanieta T. Tamanikaiwaimaro
>         <salanieta.tamanikaiwaimaro at gmail.com
>         <mailto:salanieta.tamanikaiwaimaro at gmail.com>> wrote:
>
>         http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202567792748
>
>         http://pdfserver.amlaw.com/tal/icann.pdf
>
>
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>
>     -- 
>
>     Salanieta Tamanikaiwaimaro aka Sala
>
>     P.O. Box 17862
>
>     Suva
>
>     Fiji
>
>     Twitter: @SalanietaT
>
>     Skype:Salanieta.Tamanikaiwaimaro
>
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>

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