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

[parminder]

David,

I will cut out both the chaff and the detail, sticking to the main issue 
we are discussing here. Your scenario building does show that 'it is 
possible' that as a result of the current court case on .xxx, this gtld 
'may' need to be removed from the root. You also show that it can lead 
to a situation that threatens splitting of the root. We all know that 
the very meaning of a court case being admitted, and its maintainability 
being expressly confirmed by the court, is that the decision can indeed 
go either way.

You would agree that, in a similar way that you would prepare for the 
security of your house without waiting for a break in to actually 
happen, governance systems need to be built with this kind of possible 
eventualities in mind. This to me is a convincing case that we should 
develop and propose a clear alternative for CIR management that is not 
dependent on the laws and executive authority of one country.

Basically, in the circumstances, the only option is to base ICANN on 
international law, with a host country agreement and immunities for its 
functions vis a vis its physical location. And the only way to make 
international law is for all countries to get together and make it, 
while it being a fully open and participative process for everyone else. 
(In the same way as the 'only' process for making law in the US is for 
its legislature to make it). Now, if someone has an alternative, doable, 
process of making international law, one must come up with it (Milton's 
mysterious solution in his mysterious book notwithstanding).

parminder

On Monday 27 August 2012 01:09 AM, David Conrad wrote:
> Parminder,
>
> On Aug 26, 2012, at 7:36 AM, parminder <parminder at itforchange.net 
> <mailto:parminder at itforchange.net>> wrote:
>> On Sunday 26 August 2012 10:48 AM, David Conrad wrote:
>>> 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?
>> 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........
>
> So, I gather you choose not to back up your assertion.  Useful to know 
> for future discussions.
>
>>> 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?
>
> Yes, but corporate law is a tiny subset of the "wishes of the US state".
>
>>>  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...
>
> Until it is demonstrated it is inapplicable, I suspect it will 
> continue to be used.  There are others, e.g., processing requests from 
> countries in which it is illegal (as in criminal felony, decades in 
> jail, millions in fines) for US citizens to do business.
>
>>> 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.
>
> If you say so.  I eagerly await a full proposal of your alternative 
> that describes an operational entity that exists above nation-state law.
>
>> 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?*
>
> Despite you being seemingly unwilling to answer my simple question, 
> I'll take a stab at this from an operational perspective (since I'm 
> not a lawyer):
>
> If a court were to decide .XXX violated US law (somehow), it could 
> direct ICANN to remove it.  However, ICANN, as the IANA functions 
> operator, can't do the job (at least usefully -- the most ICANN can do 
> unilaterally is remove the Whois entry for XXX, but I doubt many 
> people would care).  ICANN can at most send a request for a 
> de-delegation to DoC for authorization.  Assuming DoC authorizes that 
> request, it would then go to Verisign who would likely remove the 
> entry from the root zone (since DoC authorized it, they'd be silly not 
> to).  The XXX-less zone would then get signed and put onto the 
> distribution master where the root server operators would pull it down 
> and serve it to the world's resolvers.
>
> I suspect where things might get a bit complicated is in the DoC 
> authorization step. My guess is that DoC would not authorize the 
> request as it would be done outside of documented policies.  This in 
> turn would likely result in the lawsuit being redirected to DoC. 
>  Assuming the USG allowed the suit to proceed and the judgement was 
> against the DoC, DoC could be forced to authorize the request.
>
> It would then run into the other complicated bit -- whether or not the 
> root server operators accept and serve the XXX-less zone.  Opinions 
> differ.
>
> Does ICANN's legitimacy unravel if this were to occur?  Not really, 
> IMHO.  The illusion that some (including yourself, I gather) have 
> ICANN is actually in control of anything other than providing a venue 
> in which consensus policies are derived and implemented might unravel, 
> but that would (again, IMHO) be a good thing.
>
>>> 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.
>
> Then you may need to adjust either your sensibilities or your perception.
>
>> You say that Internet has become too important an issue to subject to 
>> the democratic criterion !?
>
> Nope. I'm saying pretty much exactly the opposite.  The Internet has 
> become too important to go mucking about with before exposing exactly 
> how and why you're going to be mucking about to the people who are 
> going to be affected by that mucking about.
>
> Regards,
> -drc
>

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