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

[Milton L Mueller]

Parminder, your responses are degenerating beyond the point where it is worth responding. You seem to be more interested in playing rhetorical games than in reaching agreement or improving understanding. I will point out the reasons I say these things and then suspend any further communication with you on these issues

[Milton L Mueller] Any law from ANY jurisdiction constraining or dictating ICANN’s action would have global effect, insofar as the global Internet relies on ICANN to administer the DNS.

Milton, In face of clear facts to the contrary, you continue to claim that EU's, India's, Ghana's, all of 192 government's, jurisdictions have similar implication and impact on ICANN. I dont think I need to labour to disprove this patently absurd proposition.


Ø  Read my sentence, which is a conditional statement and says that if "any law from any jurisdiction"

Ø  could "constrain or dictate ICANN's action" it would have global effect.

But just to continue with the present discussion on the .xxx case, even if the ICM registry was * not* US based, the porn industry majors could/ would have brought the case against ICANN for instituting .xxx (since the registry would of course have serviced domain name demands from the US among others). ICANN would still be forced to defend itself in the case, and if it lost the case to annul or modify .xxx agreement.


Ø  I have asked you two questions related to this that you have steadfastly ducked:

Ø  1) Do you think ICANN should be immune from antitrust? Yes or no.

Ø  2) What stops such a case from being brought in the EU? ICANN has offices in Brussels, and its "service" or operations could be considered global, thus in the EU.

It does not take a political scientist to understand that the same is not true vis a vis the jurisdiction of any other of 192 countries.


Ø  You have not made any argument to explain why this is true. You have merely asserted it.

Ø  The US antitrust case is in fact no different from an antitrust case that might be brought in the EU,

Ø  If indeed ICANN were engaged in restraint of the domain name trade in conjunction with a EU-based

Ø  registry, the effect would be exactly the same in both cases. ICANN's status as a California Corp.

Ø  makes no difference here.

The only unique thing about the US is the IANA contract. Please try to concentrate your fire on that.

IANA contract is a problem, but special application of US law and jurisdiction on all actions of ICANN is at least as big a problem. You cannot banish the 'problem' merely becuase you dont have a response to it.


And if your solution is to have 192 governments share that power, I suggest it will be a long time before most people involved in Internet matters support you.

One, you say above that ICANN is already equally subject to the jurisdiction of all the 192 governments. Are you not therefore contradicting yourself here?

Ø  No, either you are not reading carefully or you are playing games

Ø  I am talking about the sharing the power conferred by the IANA contract. 192 governments do not share that.

Ø  And applicability of antitrust law or other forms of territorial law to ICANN by 192 jursidictions is not "sharing" it is multiplying and fragmenting.

And if it indeed is already subject to 192 jurisdiction, even efficiency, since you dont recognise issues of equity and democracy

Ø  You lost me here. I am the one in favor of democracy (e.g., election of ICANN board), you are the one in favor of control by states.


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