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

[Riaz K Tayob]

On 2012/09/09 11:41 PM, Lee W McKnight wrote:
> 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.

Of course there is an indeterminacy in these arrangements. Question is, 
is it legitimate (albeit effective)?

ICANN enjoys the discretion of complying or not. At national levels 
court's may refuse to even hear a case over which it will render an 
"empty judgement" - hence issues of jurisdiction and effective 
enforcement would play up here to even ensure legal standing. So the 
sufficiency of the argument on national (other than US) control is much 
more complicated than at first sight.

>
> 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.

Question, would I be wrong to read this as a veiled anti-multilateralism 
position? I ask because if it is then it is merely a variation of the US 
exceptionalism view. If it is not then there are transformative reform 
possibilities - and these need to address the non-binding nature of the 
IGF (and the posse of marginalisation that typically - hope this is not 
too strong a term - actively marginalises this issue) as well as other 
paths to change (different roots, non-governmental control flowering 
autonomous control, enhanced cooperation, etc).

These are matters of refined judgement. Based on what line one takes - 
reformist reform (accomodation - based largely on the ICANN - or USG - 
won't/can't change view), tranformative reform (as claimed by Pisanty et 
al) and radical reform (as claimed by Parminder) [categorisation based 
on my reading _only_] and here we may well have a fork in the road. 
Aside from the contest of ideas, on a practical level, the issue is 
there sufficient representation of these diverse views, are they 
cultivated and nurtured or are some more equal than others.

[Where we may differ of course is on first principles, i.e. is 
legitimacy a valid grounds upon which to make a claim - and while not 
explicit, these reformist reform positions put this to question (which 
is the fork in the road where company does part)....
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