[governance] DMP} Statement on Process and Objectives for the Global Multistakeholder Meeting on the Future of Internet Governance

Jovan Kurbalija jovank at diplomacy.edu
Mon Dec 2 04:20:15 EST 2013 

Thank you Suresh for a good illustration of three main jurisdictional
principles: effect of the action(1), territoriality (2) and
nationality/legal personality (3).

It is not not clear how the option 2 could be related to the other country
if  the computer/server are located in Australia (botnet for denial of
services?). Is there any court case on the option 2 in Australia?

Regards, Jovan



On Mon, Dec 2, 2013 at 9:56 AM, Suresh Ramasubramanian <suresh at hserus.net>wrote:

> Several national cybercrime / antispam laws apply this "country link"
> concept - such as, for a spam campaign to attract Australian law, one or
> more of these has to apply
>
> 1. An austalian citizen is spammed or
> 2. An australian computer / australia hosted server is used to send the
> spam or
> 3. Spam sent or commissioned by an australian company
>
> #1 or #2 would attract australian law even if the criminal is in, say, the
> Netherlands.
>
> --srs (iPad)
>
> On 02-Dec-2013, at 14:19, Jovan Kurbalija <jovank at diplomacy.edu> wrote:
>
> Dear Lee,
>
>
>
> There is no disagreement. There is a difference between incorporation and
> operations. The Yahoo! case – one of early Internet law cases – illustrated
> this difference. The case in the French court was not against Yahoo!-France
> (incorporated under French law), but against Yahoo!-USA based on the effect
> principle (the possibility that French users can access materials at
> Yahoo!.com which are prohibited by French law).
>
>
>
> It is clear that any entity should adhere to the laws of the country where
> it is INCORPORATED. ICANN-Singapore is a separate legal entity to
> ICANN-California. Thus whatever it does is subject to Singaporean law.
> ICANN-California may have indirect legal responsibility as a founding
> partner. It is a simple situation.
>
>
>
> A much more complicated situation is when the SAME entity (e.g.
> ICANN-California) OPERATES in different jurisdictions either intentionally
> (signing contracts) or unintentionally (creating legal effects by its
> actions – for example, similar to the Yahoo! case).  Here we enter the
> terrain of potential multiple jurisdiction. Volumes have been written on it
> in international private law. There is rich jurisprudence.
>
>
>
> After Rafik's and Norbert's comments it seems that Fadi was referring to
> legal incorporation in different jurisdictions (opening new legal entities
> in Turkey and Singapore with specific functions – for example, regional
> cooperation, training). It is not clear if these new entities will have any
> legal responsibility over ICANN's core functions.
>
>
>
> Regards, Jovan
>
>
>
> On Mon, Dec 2, 2013 at 6:35 AM, Lee W McKnight <lmcknigh at syr.edu> wrote:
>
>>  Hi,
>>
>> Belatedly joining the discussion again.
>>
>> First, agreeing with Milton we need to be precise about which -level of
>> analysis - and which - laws - we are talking about.  As Karl points out,
>> again, California non-profit law is not bad; he only wishes ICANN would
>> follow it more closely : )
>>
>> Second, disagreeing with Jovan, on how an 'organization' can be subject
>> to many, and conflicting, laws simultaneously. For example, any business or
>> non-profit entity must adhere to the laws of every nation it operates in,
>> even when those laws conflict; and in US context, every state, county and
>> city, in which it operates. Naturally, a 'conflict of laws' can arise
>> readily, and among other things, impede business. Hence the EU. And
>> international commercial lawyers bread and butter.
>>
>> In our present discussion of ICANN, of course ICANN-Singapore, and its
>> staff, are subject to all laws and regulations of Singapore; likewise
>> ICANN-Turkey. The question then arises, whether mothership ICANN from
>> California and its 501-C-3 status trump Turkish and Singaporean law, in all
>> relevant cases? By contract it can, by legal jurisdiction, it is not so
>> straightforward.  As no doubt clever lawyers are studying right now.
>>
>> But in any case, as McTim points out, this mainly gets down to choice of
>> the fine print of non-profit administrative procedures which are not
>> terribly interesting or significant, in most cases.
>>
>> Third, more significant is first, ending the IANA function oversight role
>> of USG, which is completely orthoganal to everything above. For example,
>> ICANN could be reincorporated and operate solely under Turkish non-profit
>> law, while leaving USG in charge of IANA oversight. Which as McTim notes,
>> also hardly matters in practice these days, with GAC exhibiting more
>> willingness to veto entries into the root zone file than USG (ok cough
>> cough, there are notable exceptions XXX. Nonetheless, it does matter, and
>> sooner or later will be internationalized I expect.)
>>
>> Fourth, while Parminder may be correct to note that we are all more of
>> less in agreement that the baby has grown up and the residual role of NTIA
>> as guarantor of good - administrative procedures - in handling changes to
>> the root zone file, what we don't have is a plan. Milton's suggestion of an
>> INGO has been bandied about before; we cannot expect NTIA to walk away from
>> the table until CS and other - multistakeholders - have a coherent plan and
>> proposal on the table for what would come next. More than that, the
>> alternative would have to be essentially up and running, or no way would
>> the the USG, - or businesses anywhere in all honesty - want NTIA to walk
>> away from the table.  It's trivial but important at same time.
>>
>> Summarizing, we might wish to prioritize which objectives are of primary
>> importance and require international action, and which ICANN and IGF can
>> further evolve towards more or less readily with existing momentum.
>>
>> ICANN has chosen to subject itself in part to Turkish and Singaporean
>> law; is that international enough? Perhaps not. Going INGO however will as
>> noted require much more analysis and debate - and note an INGO could -still
>> - have its staff whether in US. Turkey, Singapore, wherever - subject to
>> various national ngo/non-profit laws.
>>
>> UNLESS we wanted Fadi to have Sepp Blatter-like powers, in which national
>> governments have to kiss...his ring. Is that the plan?
>>
>> Anyway, no doubt most of you are aware of what I have reviewed here
>> already, but now that we are getting into the muck and details, I thought
>> it perhaps helpful to remind us of prior discussions and conclusions.
>>
>> Ideally, we could have a half-way sensible plan/process to address some
>> of these elements cooked in coming months, whose blessing would be the
>> crowning achievement of the Brazil photo op, as I call the Brazil meeting
>> for short, to avoid the now-dreaded multistakeholder word.  ; ).
>>
>> Lee
>>  ------------------------------
>> *From:* governance-request at lists.igcaucus.org [
>> governance-request at lists.igcaucus.org] on behalf of Jovan Kurbalija [
>> jovank at diplomacy.edu]
>> *Sent:* Sunday, December 01, 2013 4:53 PM
>> *To:* governance at lists.igcaucus.org; Norbert Bollow
>> *Subject:* Re: [governance] DMP} Statement on Process and Objectives for
>> the Global Multistakeholder Meeting on the Future of Internet Governance
>>
>>   Hi Norbert,
>>
>> It would be useful to have the exact reference to Fadi's comment in order
>> to provide a precise legal analysis. Multiple jurisdictions would lead
>> towards conflict of laws (regulated by international private law).  The
>> Law of the Sea has many examples of concurrent, parallel, and overlapping
>> jurisdictions due to the complex interplay of three core jurisdiction
>> elements: territoriality (coastal state, territorial sea), nationality
>> (flag State jurisdiction), and universality (e.g. against piracy).
>>
>>
>>
>> So far, one of the broadest lists of concurrent jurisdictions is in
>> article 109 of the UN Convention of the Law of the Sea (1982):
>>
>>
>>
>> ‘Any person engaged in unauthorized broadcasting may be prosecuted before
>> the court of:
>>
>> (a) the flag State of the ship;
>>
>> (b) the State of registry of the installation;
>>
>> (c) the State of which the person is a national;
>>
>> (d) any State where the transmissions can be received; or
>>
>> (e) any State where authorized radio communication is suffering
>> interference.’
>>
>>
>>
>> BTW: I usually send this article to enthusiasts about extending the Law
>> of the Sea to the Internet based on a rather simplistic analogy between the
>> high sea and the Internet (beyond jurisdiction). The Law of the Sea is not
>> very sympathetic to ‘unauthorised broadcasting’ and free flow of
>> information.
>>
>>
>>
>> Back to the question of multiple jurisdiction…
>>
>>
>>
>> While one can think on various solutions with multiple jurisdictions, it
>> is not clear how various jurisdictions can be exercised ‘simultaneously’.
>> It would be in breach of the general legal principle ‘ne bis in idem’
>> (nobody should be prosecuted twice for the same offense).
>>
>>
>>
>> This is just a quick reflection. If you can provide more precise
>> questions, it could help in deepening the discussion on IG, jurisdiction,
>> and ICANN.
>>
>>
>>
>> Best regards,
>>
>>
>>
>> Jovan
>>
>>
>>
>>
>> On Sat, Nov 30, 2013 at 12:43 PM, Norbert Bollow <nb at bollow.ch> wrote:
>>
>>> Carlos A. Afonso <ca at cafonso.ca> wrote:
>>>
>>> > I risk to be bitten by (no, not monkeys, Milton) scorpions here, but
>>> > if "removal of the source of authority from a single national
>>> > government and the linkage of its authority over the DNS root zone
>>> > file to a global polity" is achieved, the need to
>>> > change/globalize/internationalize ICANN (the organization) becomes a
>>> > relatively minor issue, n'est pas?
>>>
>>> My perspective on this is that the "removal of the source of authority
>>> from a single national government and the linkage of its authority over
>>> the DNS root zone file to a global polity" is IMO primarily of
>>> symbolic importance, as we have discussed in depth some time ago that
>>> the degree of real-world power that the executive branch of the US
>>> government has in the current arrangement is rather limited if it is of
>>> any significance at all.
>>>
>>> I think that the aspect of jurisdiction is much more important and also
>>> much more difficult.
>>>
>>> Fadi said in Bali that ICANN could be made subject to multiple
>>> jurisdictions simultaneously.
>>>
>>> I absolutely don't see how that could possibly work, but maybe someone
>>> can enlighten me.
>>>
>>> Greetings,
>>> Norbert
>>>
>>>
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>>
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