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

Sun Sep 9 16:41:01 EDT 2012

Hey Parminder,

If Milton's signing off, I'll sign on for one more attempt.

My aim is not to encourage lawsuits against the hegemon's proxy ICANN - but I feel them coming on anyway, with the .xxx one just the tip of the hegemon's melting iceberg.  (I'm enjoying this 70s flashback, don't get to use the word hegemon twice in one sentence often these days : )

So here's my free legal counsel for you: anyone anywhere can play.

Just as there was nothing to prevent Google or Yahoo, or earlier Compuserve being taken to court in France or Brazil, or Germany and Italy, and senior executives threatened, tried, sentenced and/or subject to arrest if they set foot in those countries - meaning even if they had no staff there, but just passed through say the Frankfurt airport, or stopped in Rome for a vacation  -  so too could ICANN staff be subject to arrest; and ICANN fined for example, should it not obey a court order in Pakistan or India or anywhere else.

We can review the specific circumstances in the various cases I mentioned in passing if you want, but basically the message is as the Internet and Internet services pervades more deeply into all nation's daily lives, then we should not be surprised when ICANN is, eventually, challenged in various nation's courts. Most readily where the organization has an establishment, meaning staff as in Brussels and Australia. But even absent staff presence, I could roll out 100 hypothetical scenarios on how ICANN decisions could be challenged, in Pakistani or Indian, or Brunei's, really any nation's legal system.

Just cuz it's a non-profit with a SoCal HQ does not mean the organization is exempt from - any - legal sanction, anywhere.

Whether the balance of power over the administration of changes to the root zone file, and/or the creation of this or that new gtld, should be a matter of hundreds of national jurisdictions, or handled through some form of global collective action, is indeed the question. But while I am practicing law without a license here, as the saying goes in US domestic politics, at least I am making reality based statements.  Every single thing ICANN does could be challenged in any national court.  Winning a case, and/or explaining to a judge or jury why a case was brought, is of course never a sure thing. But the ability in principle of Indian courts to rule on cases in which Indian citizens, businesses, and/or government agencies claim injury, is not in any way impaired by the location of ICANN's HQ.

ICANN, on the other hand, if established under international public or private law, could indeed gain various immunities, which its actions do not now enjoy. Milton's 100% right to say careful what we wish for here, since moving to a treaty or international convention as the source of ICANN's legal status, could just as easily make ICANN less responsive as more responsive to national jurisdictions, and individuals. ANY national jurisdiction. But that is a possibility and not a certainty, as it would depend on the specifics agreed to by nations signing onto that hypothetical treaty.

If you don't believe me, just ask any practicing international (private) lawyer. I'm guessing her answer would be another question: how deep are your pockets? : ) But anyone with enough money to make the challenge to for example - any - gtld string, can follow ICANN procedures, or they can turn to their own national courts. Although those courts might find it annoying if they are dragged into the middle of an arcane dispute if remedies from within the ICANN system were not exhausted first.

Unfortunately, like I said some time back, this whole dialogue has gotten - more or less nowhere - since apparently it is more fun to flash back to the 80s or hegemonic 70s than try to make sense of what should be done next, to align ICANN and other elements of Internet governance more closely with all of the global communities that are affected by those decisions.

Since there has been no new or original suggestions made, then we do seem to be stuck in a time warp. A domestic US non-profit corporation, albeit one that strives mightily to - should I say sucker, or invite? : ) - people from around the world to do the heavy volunteer lifting to keep the global net up and operating, is the main game in the global Internet governance village, still.

Seeing as apparently noone has a better idea, or has even concrete suggestions on how to get from here to there, there being a more globally equitable future, then yeah we are stuck.  Bummer.

Or maybe, I repeat again, this dialogue, while at times fun, really suggests it is time to get serious about Norbert's enhanced cooperation task force idea to figure a way forward. Since none of us are managing to do any better, absent that. imho.   If we are counting on the ITU to do so in December....well I got a few virtual bridges for sale that are more solid.  Better to give the (IGF-responsive) task force idea a shot, I suggest.

Lee

________________________________
From: governance-request at lists.igcaucus.org [governance-request at lists.igcaucus.org] on behalf of parminder [parminder at itforchange.net]
Sent: Sunday, September 09, 2012 2:30 AM
To: Milton L Mueller
Cc: governance at lists.igcaucus.org
Subject: Re: [governance] Big Porn v. Big Web Ruling Could Spell Trouble for ICANN / was Re: new gTLDs

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.

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.

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.

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.

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).

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.

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.

Ø  You 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.

Ø  The 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.

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.

see above

snip

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.

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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