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

[parminder]

Dear Pranesh,

Thanks for your response. Before I respond to the specific issues raised 
by you let me state the larger context of what I see as being discussed 
here. Since you do mention in your email about 'not giving up the quest 
for alternatives' I see three alternative positions that are emerging.

(1) Meaningful internationalisation of ICANN is not possible. Milton 
takes this view with some sympathy from Lee. I saw your questions in the 
two mails you sent as expressing grave doubts about possibilities of 
meaningful internationalisation. But if that is not what you are 
expressing, it is very fine. (With meaningful internationalisation I 
mean not only that US pulls itself out of the loop of the decision 
making on root changes, but also that ICANN's decisions, of root change, 
or related to its policies etc , are not subject to any kind of post 
facto review either by US courts or US executive authority. )

(2) ICANN should be internationalised without imposing any new oversight 
authority replacing US gov's. Ian and Avri have strongly supported this 
position, and apparently the ICANN plus system itself wants this to 
happen, and have made representations to this end. (I am not sure 
whether those holding this position think that some international law 
will be needed for any such internationalisation or not. And if not, how 
would any internationalisation of this kind be 'meaningful'. The 
proponents of this view may want to clarify)

(3) (This is ITfC's position) ICANN's internationalisation will require 
it to be incorporated under international law and we need to find out 
how such a law will be arrived at. We think that an external 
international oversight mechanism of some kind is also necessary, 
although any such  mechanism should have a very clearly circumscribed 
and minimal role, and should employ innovations in its manner of 
constitution - not going the typical UN kind of gov representation role, 
but employing some kind of regional process of selection, maybe taking 
people from public tech institutes or professional associations etc....

Now to the points in your email.

On Thursday 20 September 2012 03:24 AM, Pranesh Prakash wrote:
> parminder [2012-09-11 23:52]:
>> snip
>
> There's a difference between WIPO and ICANN.

Yes, there are differences. But what I am pointing to is the similarity 
between WIPO and a possibly internationalised ICANN. It is about the 
fact that the global policies that WIPO makes are not subject to review 
by Switzerland's courts or government. Right!. In the case of ICANN, its 
global policies are subject to such reviews at present. The protection 
or immunity we want under an international law is to make sure that 
ICANN's global decisions cannot be reviewed and thus struck down by US 
courts/ government. Do tell me why such protection/ immunities available 
to WIPO's policy making process and outcomes against review/ 
interference by local jurisdictions are not possible to be made 
available under international law to ICANN's global policies and other 
actions.

> Almost none of WIPO's decisions are self-executing: 

Yes this is a difference. As we all know Internet is indeed different as 
a unitary infrastructure for the world. And if we want to protect both 
such globalness of it, and political principles that we hold dear like 
democracy and the such, we need to be ready to get into innovative 
thinking that meets both these important objectives rather than jettison 
one for the other.

Going into the operational details, I dont see what is the problem if 
ICANN, duly protected by international law, was to make changes in the 
authoritative root zone server, located in its protected premises, and 
US under the same international law being obligated to give safe passage 
to these changes from ICANN servers to the root servers outside the US. 
If the US, exercising its legitimate jurisdiction over root servers and 
other infrastructure located within its jurisdiction does not want these 
changes to apply in the US territory, it will be well within its 
legitimate power to can take action at that level.

Therefore, I see no problem with making, what you call as, the 
self-executing functions of ICANN immune to US jurisdiction under an 
appropriate international law.

  snip
>
> And for what it's worth, WIPO *is* subject to Swiss laws on everything 
> from fire safety onwards.

Yes, these are the kind of things that host country arrangements deal 
with. Nothing new, and does not change anything. We are not asking ICANN 
to be immune from fire safely regulation, or other building regulations 
and also a host of other things as well. That would be quite silly to 
ask, and therefore no one does.
.
> And for what it's worth, the decision by the WIPO secretariat to 
> provide technological support in the form of computers to Iran and 
> North Korea, inter alia, to upgrade their patent offices has come 
> under the scrutiny of the American Congress for provision of dual-use 
> technology — whether rightly or wrongly so.

The controversy was whether WIPO is following UN sanctions or not, and 
not whether it was following US law or not....
>
>> Do I take from your framing of the above question that, therefore, 
>> you are
>> fine for a global governance institution like ICANN to be subject to 
>> US's
>> law and jurisdiction in terms of its substantive governance activities?

>
> A question isn't an argument, and people's view are often more 
> complicated than binaries.  Testing the alternatives' worthiness 
> doesn't mean giving up on the quest to find viable alternatives.

Sure. Neither posing counter questions should be considered wrong. It is 
very much the tradition of political discussions to explore linkages of 
any position/ question to possible political stances that it may appear 
to be aliening with.

regards,

parminder



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