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

parminder parminder at itforchange.net
Wed Sep 12 00:34:27 EDT 2012 

Avri and Ian,

Will weigh in with more responses to your and other's comments later on 
when I have a little more time, but just to say for the present that;

Firstly, IANA function that US may or may not hand over to someone else, 
in one issue. Another one, the main one in the present thread, is, 
whether IANA function is voluntary abandoned or not by the US (your 
choice of what should happen), ICANN as a US non profit would remain 
subject to all kinds of US laws vis a vis all its activities and 
policies. As a part of the .xxx judgement for instance, the courts can 
ask ICANN to revise all its domain name policies to bring them in 
accordance with US anti trust and possibly other laws (say IP related), 
in 'such a such', manner. ICANN would have no option other than to do it 
right away. You will agree that with the .xxxx case already been taken 
up, and its basic tenability also been accepted by a court ruling, such 
an eventuality is quite possible. This issue is at quite a different 
level than that of who exercises IANA authority, which you address in 
your emails.

What is your response to this particular, i'd say, imminent, problem? 
How is ICANN going to deal with it? With the .xxx case already in the 
court, and many more expected in the present round of new gtlds, should 
ICANN not already be ready for what is certainly going to happen sooner 
or later?

Secondly, if some kind of immunity for ICANN from US's domestic law 
through some kind of international agreement is part of your response to 
the above, and I may be being presumptuous in this regard, please note 
that Milton and even Lee do not seem particularly sanguine about it; not 
just about the likelihood that it would happen, but even of its 
desirability. They seem to prefer that ICANN remains subject to US laws, 
to ensure that some kind of public interest control is kept over it. 
What is your position on this?

I mention this because evidently, even leaving my and Riaz's position in 
this thread of discussion out, there is much less general agreement on 
the way to go ahead, that may appear on the surface. And the 
disagreement is not just on the time frames involved or the path to 
follow, but, and this is most significant to assert, also vis a vis the 
eventual desirable state of affairs.

I understand that the mainstream view in the US, including but not just 
limited to the 'establishment', is closer to that of Milton/ Lee's above 
view. We know that EU also rejects the possibility of ICANN being 
subject to no kind of jurisdiction what so ever. These facts will have 
to be kept in mind.

Regards, parminder

On Wednesday 12 September 2012 04:02 AM, Ian Peter wrote:
> Glad to see these comments by Lee and Avri.  Here is my original proposition
>
> I come back to my original position ­ and perhaps the only one where we
> might get some agreement and also even the possibility of some action. The
> authorisation role is completely unnecessary, whether carried out by USA or
> UN or whatever. Please do not transfer it to another body ­ just remove it.
> The authorisation is based on recommendations involving a set of very
> consultative and exhaustive procedures. Once the ICANN processes recommend a
> change after these consultations, let that be the final authorisation.
>
>
> I can perceive a situation where USA might actually accept that proposition,
> consistent with increasing independence of ICANN.  I cant see a situation
> where they transfer their authorisation function to any other body.
>
>
> Ian Peter
>
>
>> From: Avri Doria <avri at ella.com>
>> Reply-To: <governance at lists.igcaucus.org>, Avri Doria <avri at ella.com>
>> Date: Tue, 11 Sep 2012 18:28:28 -0400
>> To: IGC <governance at lists.igcaucus.org>
>> Subject: Re: [governance] Big Porn v. Big Web Ruling Could Spell Trouble for
>> ICANN / was Re: new gTLDs
>>
>>
>> On 11 Sep 2012, at 17:33, Lee W McKnight wrote:
>>
>>> 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...
>>
>> This is basically the option I opt for.
>>
>> First work to get ICANN to grow up and deserve to move out of the house.
>>
>> Then convince the parents and all the aunts and uncles that it is time for
>> ICANN to move out on the NTIA house because they are gown-up and have a viable
>> life plan.
>>
>> I bet that if this state is reached, NTIA would even help.  Just a guess, but
>> I'd bet.
>>
>> But first we ICANN folks (Staff, Board and Volunteers) gotta get a shit
>> together and grow up.
>> And start working on its life plan.
>>
>> I think progress is being made, but is it as good as we would like of course
>> not.
>> More time and participation is needed.
>>
>> I beleive it can happen.
>> In fact I expect that it eventually will.
>> I just have no idea how long eventually will take.
>>
>> avri
>>
>>
>>
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