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

[Riaz K Tayob]

I would like to see how this issue evolves this time round. I suspect 
though that the politics is a mere variation on the theme/s played out 
previously by 'single rooters' i.e. you can do and say pretty much 
anything but do not question the hegemony of direct or indirect control 
of US hegemony over CIR.

My view is yes it matters for a number of reasons some of which will 
suffice for now, in response to your question and on a much broader level.

If this were a nation I would prefer a Republic without a monarchy over 
CIR - that is democratic control over /all/ aspects of critical 
infrastructure. No internet regulation without representation. In 
democratic discourse anti-democratic positions bear the burden of 
proof... which the framing of the question sidesteps without 
justification. The US might have had some credibility before. This is 
not the case now.

The problem is of a global nature, and hence a global solution is 
required. Here there can be discussion over tactics (short term goals) 
vs strategy. The way the question is framed limits this on the basis of 
ICANN's role - ICANN and others are cogs in this machine and hence are 
subjects of our consideration. Curran had some interesting ideas on 
this. But, the onus has shifted from the heady days of single rooter 
hegemony on this list (in terms of argument rather than power): 
justification is required for excluding CIR from democratic control. 
This is not only about content, but about potential sites of abuse as 
Auerbach mentioned previously. If abuse is a concern then so is ICANN & 
CIR.

Any framing that is less than global is too casual given the rights 
violations that would allow abuse by US and other officials. After this 
incident, the lack of avenues for action or even a safety valve the 
judgement regarding ITU or UN control seems positively benign. Concerned 
US citizens could read a lot into the Madison quote posted earlier as 
they are now treated no differently from Afghans as much as they would 
like to believe otherwise.

The proper question is, what institutional form/s would legitimately 
regulate the internet based on standard and universal democratic 
principles? A country that has been shown to be abusive *is not even a 
candidate for leadership in this field*. I do not want Swartzification 
of the entire internet community. If this is anti-American then the 
other side is anti-democratic, if one were to be Manichean. A lot more 
argument would be needed to persuade me about the privileged treatment 
of the US in the international community, there is no presumption. Of 
course one could argue like McTim that the US built it and the US owns 
it etc... but that is not argument, it is a legitimate argument for a 
vested interest that can be dealt with through reason - and from a 
democractic and global perspective does not pass my muster.

On jurisdiction, one would need to see what locus standi can be 
established for non-Americans to prosecute the case and whether access 
to justice would be the same for all people. If same cannot be assured 
then we make common cause with inequality and I want no part in it.

More technically, no court will take on a case that renders a verdict 
empty (I can win a case on a violation in South Africa but the court 
would not be able to enforce it; and US courts  have even reduced the 
ability of aliens to sue for US multinational violations of human rights 
so even the trajectory of US law is less conducive than it used to be - 
see Nigeria case recently), so ICANN or other CIR assets would need to 
be 'attached' or capable of being 'attached' - hence where they are 
matters: it is not simply a bilateral arrangement between parties, ICANN 
& CIR are a 'creatures' of governmental power) - this argument gives 
presumptive legitimacy to arrangements - arrangements which we regard as 
plastic if we do not want Uncle Sam playing in our dirty laundry. CIR 
institutions decisions on trade marks may have extra territorial effect. 
Hence third parties can be affected by bilateral arrangements. It is a 
peculiar American liberal myth this view of voluntrism, which frankly I 
find objectionable. For me what flows from the approach/politics 
implicit in the framing of the question and flowing from it is a less 
well articulated variation on Milton's and McTim's internationalisation 
- despite the discussions, we have not had a response to our equally 
legitimate objections to what I see essentially as a pro-American or 
pro-Corporate (I have explained why) position implicit in these 
definitions of internationalisation.

The politics of this position posits a problem of surveillance and not 
of the right to participate in decisions that affect our lives. The 
politics of the approach, and most subsequent discussion I have read on 
this thread, presumes US legitimacy as a strategy. Rejecting such 
legitimacy (without saying one cannot deal with the situation 
incrementally) is essential and one would have hoped that the lies, 
constitutional violations, Swartzing, and complete and utter lack of 
credibility would have opened up more space.

 From my perspective it is simple, are we going to take this as a global 
issue (the violation was global) and put it into democratic terms or are 
we going to play the same games (as one single rooter put it, don't take 
us back to the 'troubles' of WSIS) so that the US can continue its 
abusive role? And it is not anti-American to say it is abusive.

Riaz

On 2013/06/11 07:12 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.
>
> 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? 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.
>
> Kerry Brown
>

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