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

Tue Sep 11 17:33:43 EDT 2012

Hi again,

I will try one last time to assist moving the dialog along.

A) By now it should be clear that when we talk about matters of non-profit law, it is a state-level matter in the US although it also ties into federal law for an organization wishing to avoid national income taxes.  As Milton and I have pointed out, we can all complain about things Californian including their rather dysfunctional state government; but California non-profit law is pretty benign and compares reasonably well with most others.
2 Conclusions: 1) We can reincorporate ICANN somewhere else but to get away from California state law for non-profits is not a great reason for what would be a big effort. 2) Some may prefer Indian or European or Brazilian or whomever's law for non-profits but this is really not going to work as a rallying cry for a dramatic change in ICANN. 3) As Sala and otehrs have pointed out, getting away from the extraterritorial arm of the US, or Indian, or EU, governments - ain't happening.  (Unless there is consensus we should grant immunity to ICANN from national laws. All in favor of strengthening the IPR lobby in ICANN? : ( Or, all in favor of calling for a convention to explore what a future international oversight framework would look like? Some of us suggested that many years back, and got nowhere.

B) When we get into CIR issues like the mechanics/administrative procedures for overseeing changes to the root-zone file, as I have pointed out right now US federal government/DOC/NTIA tries to do - nothing - other than make sure others follow fair administrative procedures.  However, and there is a super-legit however here, in a world where approximately 80% or is it 90% of Internet users are outside the US, any tie back to just one government does not pass the smell test.   I think we IGCers are unanimous on that.

2 possible conclusions:

1) Free ICANN from hypothetical future USDOC/NTIA interference as Ian Peter suggested. Which would also free ICANN from any other government mucking around at that level, in a hypothetical future. Fine by me. Though I worry ever so slightly that the latest example of ICANN's immaturity (oh yeah we forgot to put in place a conflict of interest policy for folks about to launch a new ICANN-created market)  is not the last example of ICANN proving in practice to be not really as grown up as ICANN, like most 14 year olds, claims it is.  Still, the proud parent USG will be more inclined to want to let the organization grow up and graduate from needing a babysitter, than accept other's suggestions that they would be better parents. Still we can imagine...

2) Developing some form of international oversight as Parminder suggests.  Which, sorry to say, I have yet to hear a clear credible plan for anything workable that would not lead the volunteers of the net to wander off the job and recreate something else that looks just like the Internet but is not the Internet. Which would keep the government's of the world away from running the engine rooms of that not-Internet. As -not- documented, root zone operators and mirror server operators are all autonomous free agents and are not - save for certain exceptions like specific root zone operators that are part of the USG - beholden to the USG or any other government.  So yes doing anything here, we could indeed imagine it getting done by governments of the world agreeing, in principle. But it is not so easy to imagine what changes might obtain the consent of the net.

C) With regard to an OECD ICCP-like meeting forum for the whole world, rather than just the 15%? - of world government's that are full participants in OECD, that is an idea I am quite sympathetic too.  Imho, just as G20 has become the main gathering of the mighty, and G7 mainly a few day photo op, it would be up to the BRICs + South Africa, Nigeria, and some Middle Eastern states to determine that they need something like the ICCP badly enough - to pay for it.

Meaning, in the first instance this requires some number of the - excluded from OECD - government's to feel there is enough benefit to them of something like that getting going in the UN system, to promise to put up the $$ to fund it. Absent that, the government's already paying the costs of OECD's Parisian HQ are not likely to feel they can explain to their own citizens why something similar in the UN is also needed.

Conclusions: 1) while us academics love the OECD's data collection and experts, industry elite + government leading policy edge schmooze-a-thons (I confess), and would love the UN to create another analagous thing, I suspect it will be - very - difficult to get that instituted in the UN system.  UNDESA will claim they already do it; as will ITU; as will WIPO and UNCTAD.  On finance and tax policy issues which OECD also deals with, WTO and IMF will say they got that covered.  Therefore 2) This looks to be a heavy slog, even if it is one I agree is needed/helpful in principle and which the example of the ICCP can illustrate the benefits of.  However, 3) ICCP at best pays its excellent staffers to write - policy background docs which encourages nations to harmonize policies and do things like - ensure information privacy and security standards are followed by public sector agencies. OECD is the penultimate talk shop with no formal power to do anything, including offer - oversight - of anything. Unless explicitly invited to comment and offer feedback by member governments.  So...the ICCP2 could offer ongoing, periodic oversight of ICANN, and IGF, RIRs, W3C, etc - if invited. I can imagine those organizations welcoming a structured way to put themselves up occasionally for voluntary self-assessmemts and critiques by governments, aided and abetted by a new crack squad of (global IG savvy) ICCP2 staffers, with industry whispering more or less loudly but politely in the government's ear just as they do at ICCP meetings.

Or, cough, governments and business could get out of the way and let the IGF belatedly begin to grow up and do more or less the same thing.
However, ongoing oversight of one specific agency or function or non-profit is not an OECD strength and certainly not an ICCP capability. Periodic monitoring and feedback, however, that can be imagined.

Meaning again, cough, oversight of those pesky CIRs is really beyond OECD in any kind of operationally meaningful way. And it would be difficult to imagine a UN-centered ICCP2 analogue that could obtain that authority and expertise.

Which takes us back to 4) ICANN's GAC as the only government-inclusive game in town, with enough knowledge and expertise of what is going on in (most) of the various Internet engine rooms we care about. That then leaves the world's government's also without formal authority to dictate anything to ICANN, which Parminder you seem to be claiming is required for global legitimacy.

Others may find - the consent of the net - and the open participatory processes of ICANN which would suck up every spare minute of every volunteer, worldwide, which it can persuade to help, as preferrable to a more traditional state-centric approach. Most any company, worldwide, and most civil society folks may consider it to be just fine that national governments do not enjoy their usual - hegemony - over the net. Since GAC is merely advisory, it is indeed frustrating for national governments to be in the position of - humbly offering ICANN's board advice it may or may not take.  Of course various punitive actions can be taken and/or threatened, and carried out in one or another national jurisdiction. But not readily at global level.

So in sum, I still see us as stuck in the muddy waters of an imperfect system which is however the only one around. And we have no clear path to go from a situation in which one nation's laws, at both state and federal level, provide the framework for ICANN to operate. But as many others have noted, what happens for real in ICANN day to day has very little direct connection to either the federal IRS tax code or California non-profit law.  Saying but hey the US is the hegemon, and look how crazy the US Congress is; so therefore the USG should agree to let another state or group of states take over oversight...does not sound like a logical conclusion or high likelihood outcome either does it.

Finally, aA WGIG2-like gathering of experts as Wolfgang has suggested, and/or Norbert's more open bottom-up Enhanced Cooperation Task Force - possibly - could move us ahead here. But I'm not holding my breath for either since critical mass of opinion in favor of any particular method for finding a way forward is not apparent.

Now, like Milton, I am done with this dialog. At least until I hear from someone, anyone, with a way out of the fog.

best,

Lee

________________________________
From: governance-request at lists.igcaucus.org [governance-request at lists.igcaucus.org] on behalf of Salanieta T. Tamanikaiwaimaro [salanieta.tamanikaiwaimaro at gmail.com]
Sent: Tuesday, September 11, 2012 3:37 PM
To: governance at lists.igcaucus.org; Riaz K Tayob
Cc: parminder
Subject: Re: [governance] Big Porn v. Big Web Ruling Could Spell Trouble for ICANN / was Re: new gTLDs

On Tue, Sep 11, 2012 at 10:24 PM, Riaz K Tayob <riaz.tayob at gmail.com<mailto:riaz.tayob at gmail.com>> wrote:
Parminder

One can put is also differently... if it is just US law then it does have de facto global application... now if these proposals were to be take seriously... then how would ICANN deal with the issues at the edges... porn in Saudi, religious and political symbols in France, sacred issues in India, etc... most international regimes are adept (if oft inept)  at dealing with diversity... do you even see a trace of this in ICANN (although it is improving) or in the discourse...

In relation to the issues you raise, Article 19 of the International Covenant on Civil and Political Rights (ICCPR) already raises the three exceptions, national security, public morality and if provided for by law. I think there is some confusion with governance. ICANN is kind of like a phone book. Countries are sovereign and free to have a McDonalds in their country and if it is their preference not to create "beef-based" products in India or "pork based products in other countries just means that countries choose what they want in their own countries. Even with the case of Vinay Rai, the Editor of an Indian newspaper who went to the New Delhi courts to take Facebook and Google to take down certain sites which he demanded were in violation of India's national laws.

If difference cannot be dealt with operationally in a sound way (i.e. deal with national sentiments, cultures, approaches, alternative conceptions of the good life, etc) then it remains an American imposition at least at the edges.

Having participated in policy processes and commenting on them, I can say that they welcome input and diversity. How can one complain unless one participates?

(where it does tend to count more than other issues).... And it is not just national or individualistic diversity one is talking about... it is also policy diversity...

Participate in the Policy discussions and you will see the Policy diversity. I mean look at the IDNs and the policies being developed, is that not diversity enough?

I

riaz

On 2012/09/11 12:49 PM, parminder wrote:

Hi Lee,

We live in a world that is made of territorially defined and bound jurisdictions. Plus, there is some international law/ jurisdiction, albeit rather weak. There are no doubts exceptions, whereby territorial jurisdictions are able to, in some way or the other, reach out to other parts of the world. (This mostly happens  on the 'powerful gets his way' principle, which is not to be recommended.) Admittedly, there are more such instances in a more connected world today then ever before, but they still are 'exceptions'.  The problem is that Milton and you are trying to propose a governance system out of these exceptions. No, it doesn't work that way. We cant work with exceptions, we have to work with the main system. And the main system is broken, for which please see below...

On Monday 10 September 2012 02:11 AM, Lee W McKnight wrote:
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 : )

You do agree that there are many lawsuits coming ICANN's way. Are we prepared for the outcomes of these lawsuits, which are as inevitable. How long will the US executive be able to put persuasive pressure on the US judiciary to not do anything that may rock the boat. I dont think the US judiciary is that subservient, and, sooner or later, it will decisively apply the law. In an email on 27th Aug, responding to my specific poser, David Conrad developed the scenario that may follow an adverse decision in the .xxx case. It culminated in the 'possibility' of .xxx having to be removed from the root. Are we prepared for this eventuality. Would the legitimacy of the system not collapse right away! (I must mention here that David thought it wont).

There could be other impacts of an adverse decision in the .xxx case; ICANN may be directed by the court to review all its policies and actions vis a vis whatever the court thinks needs to be done to ensure consistent application of US's anti-trust (or any other) law. ICANN will immediately *have* to  do so....

Are you/ we prepared for this very plausible scenario? Responsible governance systems and its stakeholders do not just sit around and wait for such a 'very probable' eventuality to happen. What is our response/ preparation to it? Does this not suggest that the present system of oversight of, and jurisdiction application over, ICANN is broken?

Your and Milton's response to it seems to be: it does not matter if ICANN has to do all the above things on directions of a US court; we will simply tell all the outraged/ protesting people from other countries that ICANN will also respond *exactly" in the same manner if a court from their countries (India, Ghana, Nepa, Indonesia, Brazil etc) were to find faults with ICANN and propose remedial measures. This will be a patently untrue statement. I can assure you that no one will buy it. So, I advice you, please be ready for some other response.

As for your and Milton's claim that if ICANN is subject to international law, the corresponding immunities that it will get from national jurisdiction could be a problem. Yes, it could be a problem for USians, since at present ICANN is subject to their national law. It is not a such problem to people of other countries. On the other hand, it should be obvious that any international law will be framed in a manner that takes as much account of ICANN functions as possible. Even if specific legal provisions do not exist in some aspects, the international system is capable of delivering on basis of principles of natural justice and other such forms of jurisprudence.

Thanks, but we can do without US law getting imposed on the whole world, which, to me, is what your and Milton's critique of 'any' international system/ jurisdiction is all about.

parminder

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<mailto:governance-request at lists.igcaucus.org> [governance-request at lists.igcaucus.org<mailto:governance-request at lists.igcaucus.org>] on behalf of parminder [parminder at itforchange.net<mailto:parminder at itforchange.net>]
Sent: Sunday, September 09, 2012 2:30 AM
To: Milton L Mueller
Cc: governance at lists.igcaucus.org<mailto: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.

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

>  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.

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

>  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).

>  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.

>  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.

>  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.

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

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

>  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

>  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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