[governance] Does it matter which legal system ICANN operates under?

[Robert Guerra]

Kerry,

Will defer any legal opinions to lawyers on the list...

That being said.


On 2013-06-11, at 12:12 PM, Kerry Brown wrote:

> The subject line will probably stir some controversy. Because of that I will state my position clearly so people don’t misunderstand where I’m coming from. I abhor the Patriot Act. I abhor governments secretly collecting data with no oversight. I abhor how the Patriot Act has affected my country which is Canada. Because of the Patriot Act I am actively supporting the establishment of more IXPs in Canada to help keep Canadian data in Canada. I actively lobby my government to be more open and transparent.

If you are a Canadian - then it is key that you direct your focus to institutional actors  in Canada who are involved in Internet governance, privacy, etc.

The Canadian Internet Registry Authority (CIRA), Industry Canada and the Privacy commissioners (both at a national and provincial level) are institutions which you should engage. Key academic centres such as the Citizen Lab and CIPPIC are also involved in bringing a rights based approach to Canadian policy.


>  
> Now to the question I posed. Are we not conflating two issues that are not related? Solving one won’t change the other. If ICANN moved to a different jurisdiction tomorrow what would change re the American government’s access to private data?

ICANN, if i'm not mistaken (and i'm not a lawyer) gets most of its authority from contracts it has with all the different stakeholders. One has to distinguish what ICANN does to the different contracted parties - such as the root zone operators.

ICANN is , in my opinion - a coordinating organization. It is the contracted parties and key intermediaries (such as telcos) who are subject to legal lawful access requests. It is the later I believe we should focus our efforts on and not ICANN..

> Many of the services that Internet users worldwide want to access are provided by American based companies subject to American law. Much of the world’s Internet traffic is carried on communications media owned by American companies subject to American law. How would changing the jurisdiction that ICANN operates under change the reality that if the American government wants to spy on anybody they could do so with relative ease?
>  
> I am all for investigating what it would take to move ICANN away from US jurisdiction. There are many questions that need to be answered and problems that would need to be solved but in the end I believe it would be a good thing. I fail to see however that it would in any way hinder the US governments’ ability to collect data from the Internet. These are two distinct issues that will require different solutions.
>  

The internationalization of ICANN has been a subject of conversation for years. Given anchor it has in the US it would be hard to have it leave the US in the short or medium term. Assuming it could leave the US, the question which jurisdiction would be better or if instead it should be given an international status much like the red cross or international olympic committee. Other jurisdictions also have their issues as well. It's frankly not that simple and will require decades for  evolution to take place.

regards

Robert

--
Robert Guerra
Senior Advisor, Citizen Lab and Canada Centre for Global Security Studies
Munk School of Global Affairs, University of Toronto
Phone: +1 416-893-0377      Cell: +1 202 905 2081
Twitter: twitter.com/netfreedom 
Email: robert at citizenlab.org
Web: http://citizenlab.org


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