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

[parminder]

On Sunday 26 August 2012 10:48 AM, David Conrad wrote:
> snip
>
> I was specifically asking for a reference to where any "ICANN 
> apologist claim[s] so" so I can understand their rationale. Your 
> statement is rather bald, so presumably you can back it up. I'm asking 
> for a reference.  Can you provide one?

David, I have been through long discussions on this list about the 
problems with US political control over the ICANN, and the other side, 
expectedly, refutes or minimises such control (otherwise discussions 
would not be so long and inconclusive). 'Subject to US laws and 
executive power' and 'political control' are the same thing. I dont want 
to dig up all emails and get into a long discussion on you said this, 
what i meant was this and so on........

However, indicatively I can mention that when the US treasury 
department's OFAC sanctions on other countries were discussed by me as 
potentially problematic vis a vis ICANN's global activities, the counter 
argument ranged from - these sanctions cannot be applied to ICANN's work 
(there is no de jure application) to US is never going to do so (there 
is no de facto application). Similarly, when problem with 10 out of 13 
root servers being in the US was discussed, the counter arguments 
started with - US gov /cannot /exercise authority over them and then 
went towards  of course they will never do such a thing.

> snip
>
> If you assume that the "wishes of the US state" are codified in 
> corporate law, I suppose so, but this seems to be a bit of a reach to me.

Why? Doest US state make the corporate law?

>  For example, my impression the USG wasn't particularly excited about 
> the creation of .XXX yet ICANN seems to have gone ahead and allowed 
> for its creation, no?

How many time can this one example to used to show the purity of the US 
state... Everyone knows that the stakes in the .xxx case were just too 
low for the US to do such a thing with the obvious bad press 
expected.... But the next time the threshold vis a vis high stakes may 
be crossed.... We cant wait for that moment and then rue the 
arrangement. This .xxx instance is like the British empire telling its 
colony again and again about that one instance when they /could /have 
acted in some way that apparently was more in their narrow interest but 
did not out of large heartedness.... What does it prove... Should the 
colonised stop seeking their democratic rights becuase of that !? I am 
deliberately taking an extreme sounding example because I see that the 
argument of democracy seems not making much impression in most of our 
discussions.


>
>> To the extent that ICANN does take global inputs for its policy 
>> development, it is within (relatively narrow) confines or constraints 
>> of the degrees of freedom allowed by US law and executive authority.
>
> Constrained by US law, yes.

It is not acceptable to us, I mean those who dont participate in making 
US laws. Simple, isnt it.

> Whether that is "relatively narrow" is a matter for debate.  As for 
> abiding by the constraints of executive authority, ICANN, at least in 
> theory, abides by policies created by a bottom-up open process, not by 
> the dictates from the USG executive branch.

In theory, the hierarchy between the two above kinds of control over the 
ICANN is clear. US laws and general US authority will prevail whether 
they have exercised it in any strong manner till now or not. And this is 
not acceptable.

>  Do you have any examples in which ICANN has violated those bottom-up 
> processes in order to meet demands of the USG?

US has been restrained till now. But the rest of world is not willing to 
live on its mercy and goodwill, their being enough instances in other 
areas that this is a dangerous thing to do,

BTW, why dont I get the answer to the main question which started this 
thread, and is in its subject line. *What happens if the US court, 
having accepted it as a maintainable case, declares .xxx registry 
agreement to be in contravention of US laws*? *Does the ICANN system 
with its chimera of global legitimacy simply unravels that moment? How 
do you see such a scenario?* Should we not simple not discuss it and not 
prepare for the probable eventuality.
>
> snip
>
> I figure when you are talking about mucking about with a working 
> albeit imperfect global infrastructure upon which people, nations, and 
> economies are increasingly dependent, you need a bit more than "but 
> the current system is undemocratic!".

All my political and democratic sensibilities make me feel that your 
sentence above is self contradictory. You say that Internet has become 
too important an issue to subject to the democratic criterion !? Or at 
least that, it has become too important for us to risk talking about 
democracy vis a vis its governance.

Precisely, as you say, because it has become so important that it has to 
be governed democratically. Dont know why democracy is becoming such a 
cheap commodity now a days, and that in civil society discussions.

In fact for a such an important global phenomenon, the democracy logic 
is so strong that rather then keeping on asking me to show you how the 
alternative more democratic system will be better, it is you who should 
tell me why it is clearly so bad in your view that we have to sacrifice 
the considerations of democracy.

parminder.




>  But maybe that's just me.
>
> Regards,
> -drc
>

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