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

[parminder]

On Thursday 06 September 2012 10:42 PM, Milton L Mueller wrote:
>
> Parminder, your responses are degenerating beyond the point where it 
> is worth responding.
>

You are just getting desperate, Milton...
>
> You seem to be more interested in playing rhetorical games than in 
> reaching agreement or improving understanding.
>

Meaning, rather than simply agreeing with your most untenable 
proposition about parity of application of jurisdiction over ICANN 
between US and all other 191 states.

> 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.
>
> ØRead my sentence, which is a conditional statement and says that if 
> "any law from any jurisdiction"
>
> Øcould "constrain or dictate ICANN's action" it would have global effect.
>

Your above statement - 'If' any law from any jurisdiction 'could' 
constrain or dictate ICANN's action, it would have global effect - says 
nothing at all other that that 'ICANN's actions have global effect', 
something which no one disputes. What other meaning does this sentence 
carry?

  What is under disputation is - laws from '*/which/*' jurisdiction can 
constraint or dictate ICANN's '/*global*/' actions? You say that laws 
from all 192 country jurisdictions have the 'same' (or at least similar) 
effect as from US's jurisdiction of 'constraining or dictating ICANN's 
/*global*/ action'. This is what I call as a /*patently absurd 
proposition. */

> 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.
>
> ØI have asked you two questions related to this that you have 
> steadfastly ducked:
>
> Ø1) Do you think ICANN should be immune from antitrust? Yes or no.
>

Of course ICANN should be subject to all kinds of public interest laws, 
as every entity should be - anti-trust, but also others, like those 
aimed at preserving and deepening public domain..... ( thus being 
prevented from giving off generic names like school, kid, beauty, cloud 
etc as private tlds).

> Ø2) 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.
>

First of all, you are cleverly skipping examples of India, Ghana and 
Bangladesh that I used, and only employing EU's case becuase ICANN has 
an office there... Your argument can be challenged simply on this 
ground, what about the other countries, especially the developing ones 
where ICANN chooses not to have an office. (Equity, Milton, equity, dont 
lose sight of this simple democratic value!)

On the other hand, even if ICANN has a Brussels office, this fact does 
not put EU's jurisdiction over ICANN anywhere close to a similar level 
to US's. Apart from the fact that, if the push comes to shove, ICANN can 
simply close or shift Brussels office,  offshore offices have often 
claimed lack of control over and accountability for parent bodies 
decisions vis a vis the jurisdictions in which they are located.  (This 
is well known, but if you want examples, I can give them.)

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

No, I did make a clear argument using the scenario of an .xxx related 
case being brought in a Bangladesh court. Pl see my last email to which 
you respond. But you completely ignored that argument.

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

Completely wrong. For such a case brought in the EU, even if .xxx 
registry was based in EU, (1) ICANN is not obliged to defend the case 
(2) even if .xxx was to lose the case, it is the registry that will have 
to renege from the ICANN agreement, ICANN would have to do 'nothing'. 
However if the case is lost in the US, ICANN itself has to undertake 
certain actions- and also keep the judicial verdict in mind for future 
actions - something which is incongruent with ICANN's global governance 
status. That is the point.

On the other hand, and I said this in the previous email as well, which 
you seem to read selectively, even if .xxx registry was not in the US, 
the porn industry could still have brought the case to a US court 
against ICANN- .xxx agreement, which is simply not possible vis a vis 
any other country jurisdiction.

> ØIf indeed ICANN were engaged in restraint of the domain name trade in 
> conjunction with a EU-based
>
> Øregistry, the effect would be exactly the same in both cases. ICANN's 
> status as a California Corp.
>
> Ømakes no difference here.
>

see above
>
> snip
>
> And if it indeed is already subject to 192 jurisdiction, even 
> efficiency, since you dont recognise issues of equity and democracy
>
> ØYou 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.
>

I am glad to have an elected board if you can assemble the electorate in 
a manner that is equitous and then ensure fair polling. Please tell me 
your proposal. As for 'control by the states' I am happy to have any 
kind of direct democracy not only in IG space but also all other spaces 
of global governance (your view on this please). And till we have it, 
instead of one country dictating to the world, representational 
democracy will do (while all efforts at national and international level 
should be kept up to see that these purported 'representatives' are 
indeed democratically so). Imperfect democracy and representativity 
cannot be taken as an excuse for perpetuating hegemony and one-country 
dictatorship.

with regards

parminder

>
>

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