From vanda at uol.com.br  Tue Jun 30 17:10:12 2015
From: vanda at uol.com.br (Vanda Scartezini)
Date: Tue, 30 Jun 2015 18:10:12 -0300
Subject: [governance] NETmundial Initiative council mtg starting with
 remote participation
In-Reply-To: <CACpVkK1GGbzsOx1-dxXt4nxm8T5Tw0zshQ2JOM-f9QBmpxwCOA@mail.gmail.com>
References: <CACpVkK1GGbzsOx1-dxXt4nxm8T5Tw0zshQ2JOM-f9QBmpxwCOA@mail.gmail.com>
Message-ID: <D1B88B84.60A16%vanda@uol.com.br>

Wish you all an excellent meeting and good results.
Best regards, 
Vanda Scartezini
Polo Consultores Associados
Av. Paulista 1159, cj 1004
01311-200- Sao Paulo, SP, Brazil
Land Line: +55 11 3266.6253
Mobile: + 55 11 98181.1464
Sorry for any typos.


From:  <governance-request at lists.igcaucus.org> on behalf of Marilia Maciel
<mariliamaciel at gmail.com>
Reply-To:  "governance at lists.igcaucus.org" <governance at lists.igcaucus.org>,
Marilia Maciel <mariliamaciel at gmail.com>
Date:  Tuesday, June 30, 2015 at 9:05
To:  "&lt,bestbits at lists.bestbits.net&gt
<mailto:bestbits at lists.bestbits.net&gt> ," <bestbits at lists.bestbits.net>,
"governance at lists.igcaucus.org" <governance at lists.igcaucus.org>
Subject:  [governance] NETmundial Initiative council mtg starting with
remote participation

Dear all,

The inaugural meeting of the NETmundial coordination council is about to
start in a few minutes. The meeting is taking place in São Paulo from 9:00
to 18:00 BRT (UTC -3) and is being hosted by CGI.br. The agenda includes the
review of key documents that will guide the Initiative, a discussion on the
WSIS+10, a presentation of the demo version of the NMI platform and the
discussion of projects.

Remote participation is available:
http://meet12965.adobeconnect.com/netmundial

Best wishes,

Marília 

-- 
Marília Maciel
Pesquisadora Gestora - Centro de Tecnologia e Sociedade - FGV Direito Rio
Researcher and Coordinator - Center for Technology & Society - FGV Law
School
http://direitorio.fgv.br/cts

DiploFoundation associate - www.diplomacy.edu <http://www.diplomacy.edu>
PoliTICs Magazine Advisory Committee - http://www.politics.org.br/
Subscribe "Digital Rights: Latin America & the Caribbean" -
http://www.digitalrightslac.net/en

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From jmalcolm at eff.org  Mon Jun  1 00:04:25 2015
From: jmalcolm at eff.org (Jeremy Malcolm)
Date: Sun, 31 May 2015 21:04:25 -0700
Subject: [governance] Civil society transparency
In-Reply-To: <20150531090029.5bd0ce96@quill>
References: <55617E51.5010901@itforchange.net> <CF50E28585184AFAA4BBC8D7F48AB245@Toshiba> <5566FE8A.9010209@itforchange.net> <685563FB-947F-4110-8B81-3872514B494C@eff.org> <20150531090029.5bd0ce96@quill>
Message-ID: <B5FAFAC1-C53E-4DA6-8D9A-DDA6F85B568A@eff.org>

On May 31, 2015, at 12:00 AM, Norbert Bollow <nb at bollow.ch> wrote:
> 
> On Thu, 28 May 2015 18:41:20 -0700
> Jeremy Malcolm <jmalcolm at eff.org> wrote:
> 
>> Replying just to the IGC list
> 
> As a matter of fact, Jeremy's posting was broadcast to many civil
> society mailing lists.

It was not my intention but I was replying by phone and didn't double check. 

> Given that the initial set of pointed questions were sparked by the
> initial Bestbits meeting having been part of a formal "capacity
> building" programme funded in part by the US and UK government,

That is 100% false. None of the budget for that meeting was funded by any government grant and there was and is never any such capacity building program behind Best Bits. The draft report from an independent researcher that you read suggesting otherwise was categorically incorrect and I can only hope was subsequently corrected. 
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From nb at bollow.ch  Mon Jun  1 06:29:35 2015
From: nb at bollow.ch (Norbert Bollow)
Date: Mon, 1 Jun 2015 12:29:35 +0200
Subject: [governance] Civil society transparency
In-Reply-To: <B5FAFAC1-C53E-4DA6-8D9A-DDA6F85B568A@eff.org>
References: <55617E51.5010901@itforchange.net>
	<CF50E28585184AFAA4BBC8D7F48AB245@Toshiba>
	<5566FE8A.9010209@itforchange.net>
	<685563FB-947F-4110-8B81-3872514B494C@eff.org>
	<20150531090029.5bd0ce96@quill>
	<B5FAFAC1-C53E-4DA6-8D9A-DDA6F85B568A@eff.org>
Message-ID: <20150601122935.53aef61c@quill>

On Sun, 31 May 2015 21:04:25 -0700
Jeremy Malcolm <jmalcolm at eff.org> wrote:

> On May 31, 2015, at 12:00 AM, Norbert Bollow <nb at bollow.ch> wrote:
>
> > Given that the initial set of pointed questions were sparked by the
> > initial Bestbits meeting having been part of a formal "capacity
> > building" programme funded in part by the US and UK government,
> 
> That is 100% false. None of the budget for that meeting was funded by
> any government grant

Sure. In view of the various circumstances (including in particular the
presence of a Google representative at the meeting) I have never had
any reason to harbor any doubts that the disclosures about the funding
for the formal budget of that meeting might potentially have been
insufficient, or that they might potentially have been untruthful.

The transparency/disclosure concerns were always about something else,
namely that (1) the other main organizer/leader of Bestbits besides you
had, according to the best available information, pursued this at least
during the 2012 phase as part of a formal, partly US government funded,
capacity building program, and that (2) it appeared that at least one
of the other people who were invited to become part of the initial
Bestbits steering committee have been partners of this "capacity
building program", and that (3) none of this had been disclosed to
Bestbits participants at the relevant times.

(Note: I wouldn't have objected to point '(2)' if it had been disclosed
in a timely manner and with a credible assurance that indeed it was only
one of the partners of the capacity building program who was invited to
the initial Bestbits steering committee.)

> and there was and is never any such capacity
> building program behind Best Bits. The draft report from an
> independent researcher that you read suggesting otherwise was
> categorically incorrect and I can only hope was subsequently
> corrected. 

I'd expect that in the public online version which is in the filename
marked "final draft", any errors pointed out by the interviewees will
have been corrected. 

http://strategiesformediareform.com/wp-content/uploads/2013/06/ICA-Paper-Final-Draft-Lentz-and-Hutchison.pdf

This document states inter alia:

"the digital media rights sector both in the U.S. and elsewhere
continues to suffer limited resources [...] Recognition	of such
challenges is often why donor organizations step in to try to help.
This happens by way of entrepreneurial NGO actors approaching donors,
or donors approaching NGO actors to address a perceived gap in a
sector’s capacity to address important policy issues effectively. Yet
donor involvement—a necessary precondition for policy advocacy
organizations seeking sustainable capacity—also triggers conflict in
policy advocacy fields. [...] this paper explores some of the tensions
and also benefits of what will be referred to as “intermediary”
organizations’ involvement in helping to build the capacity of an
emergent policy	advocacy sector: the Internet freedom advocacy
sector that addresses Internet governance and human rights in a digital
media context. The paper features early-stage case study research on
a specific intermediary actor in this field: the Internet Freedom and
Human Rights (IFHR) program launched in 2012 and coordinated by Global
Partners & Associates (GP&A) in the UK with its Washington, DC partner,
the New America	Foundation’s Open Technology Institute (OTI).
[...]
The IFHR program enjoys support for this work from several donor
organizations interested in digital rights issues, which include the
Ford Foundation, the Open Society Foundation, the Media Democracy Fund,
the British and Dutch governments, as well as the U.S. State
Department. GP&A, founded in 2005 and based in London, serves as the
primary grantee
[...]
Working within a short time frame, the program has succeeded in forging
strong alliances with its local partner organizations, working together
with them and other NGOs at regional and international forums to
produce useful policy proposals that have garnered widespread support.
[..] While working continuously with these partners, the IFHR program
also organized three large regional meetings for NGOs, scholars and
activists working on Internet freedom issues. These meetings occurred
in the fall of 2012, in Kenya, Azerbaijan and Brazil. Furthermore, the
IFHR program had a significant presence at the World Conference on
International Telecommunications (WCIT-12) in Dubai, in December.
[...]
The Azerbaijan meeting [...] piggybacked on the 7th Internet
Governance Forum (IGF) in Baku, Azerbaijan 6-9 November 2012. Being
that the IGF is a UN-led, multi-stakeholder annual meeting,
established to discuss public policy issues related to the
Internet, the IFHR program saw it as an opportunity to convene
with many Internet governance and Internet rights NGOs at once.
They did so a few days before the start of the IGF, in a large
gathering called Best Bits.(*) To IFHR program staff, this was a
significant achievement (especially due to the preponderance of
disparate perspectives), as the Best Bits meeting resulted in a clear
consensus amongst those present, and an ensuing statement, which was
later quoted by the US government (Puddephatt, 2012). Interviews
with IFHR program staff suggest that to them, the occasion
demonstrated the true potential for global coalition building, a
main goal of the IFHR program."
(*) At this point there is a reference to an endnote which says:
"http://bestbits.net/ ;	from interviews we learned that the term
“Best Bits” was suggested by Dr. Jeremy Malcolm, senior policy
officer for Consumers International’s “Consumers in the Digital
Age” programme:
http://www.consumersinternational.org/who-we-are/our-team/jeremy-malcolm#.UaZIq-BYSK8
"

If in spite of all of the above, you still believe that your claim is
defensible that "there was and is never any such capacity building
program behind Best Bits", please arrange for disclosure of the true
facts about the role and activities of the IFHR program in relation to
Bestbits, which would in that case have been misunderstood by the
researchers, and explain how that misunderstanding would have come
about.

Greetings,
Norbert

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From LB at lucabelli.net  Mon Jun  1 10:13:55 2015
From: LB at lucabelli.net (LB at lucabelli.net)
Date: Mon, 01 Jun 2015 07:13:55 -0700
Subject: [governance] A Heterostakeholder Cooperation for Sustainable
 Internet Policymaking
Message-ID: <20150601071355.2700328f4bbfc197480209526f2a1375.8b94c3b3fb.wbe@email07.europe.secureserver.net>

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From udochukwu.njoku at unn.edu.ng  Mon Jun  1 12:06:48 2015
From: udochukwu.njoku at unn.edu.ng (Chris Prince Udochukwu Njoku)
Date: Mon, 1 Jun 2015 17:06:48 +0100
Subject: [governance] A Heterostakeholder Cooperation for Sustainable
 Internet Policymaking
In-Reply-To: <20150601071355.2700328f4bbfc197480209526f2a1375.8b94c3b3fb.wbe@email07.europe.secureserver.net>
References: <20150601071355.2700328f4bbfc197480209526f2a1375.8b94c3b3fb.wbe@email07.europe.secureserver.net>
Message-ID: <CAOz-jXSwFkosE_RfYDEcARaAuZBXy-nYrDdpSNeHqWJFUG8Ksg@mail.gmail.com>

Thanks, Luca, for sharing.

CPU

_____________________________________
Chris Prince Udochukwu Njoku (PhD)
University of Nigeria
 On Jun 1, 2015 3:15 PM, <LB at lucabelli.net> wrote:

> Dear all,
> Last week I published an article that might be of interest to some of you
> :)
> Comments are more than welcome!
> Best regards,
> Luca
>
> A Heterostakeholder Cooperation for Sustainable Internet Policymaking
> <http://policyreview.info/articles/analysis/heterostakeholder-cooperation-sustainable-internet-policymaking>
> Author(s) Luca Belli <http://policyreview.info/users/luca-belli>
> Published on 27 May 2015 | DOI: 10.14763/2015.2.364
>  This article revisits the multistakeholder approach to internet
> policymaking and makes a case for a new model recognising the heterogeneity
> of stakeholders’ interests.
>  KEYWORDS: Heterostakeholder
> <http://policyreview.info/tags/heterostakeholder>, Multistakeholder
> <http://policyreview.info/tags/multistakeholder>, Internet policymaking
> <http://policyreview.info/tags/internet-policymaking>
>
> Luca Belli <http://www.linkedin.com/pub/luca-belli/24/20/1a4>, PhD
> Researcher, Center for Technology & Society, FGV Rio de Janeiro
> <http://direitorio.fgv.br/cts>
> Founder and Co-chair, IGF Dynamic Coalition on Network Neutrality
> <http://networkneutrality.info/about.html>
> Co-founder and Co-chair, IGF Dynamic Coalition on Platform Responsibility
> <http://platformresponsibility.info/>
>
>
> <http://networkneutrality.info/about.html>
>
> ____________________________________________________________
> You received this message as a subscriber on the list:
>      governance at lists.igcaucus.org
> To be removed from the list, visit:
>      http://www.igcaucus.org/unsubscribing
>
> For all other list information and functions, see:
>      http://lists.igcaucus.org/info/governance
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>
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>
>
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From jmalcolm at eff.org  Mon Jun  1 12:36:49 2015
From: jmalcolm at eff.org (Jeremy Malcolm)
Date: Mon, 1 Jun 2015 09:36:49 -0700
Subject: [governance] Civil society transparency
In-Reply-To: <20150601122935.53aef61c@quill>
References: <55617E51.5010901@itforchange.net> <CF50E28585184AFAA4BBC8D7F48AB245@Toshiba> <5566FE8A.9010209@itforchange.net> <685563FB-947F-4110-8B81-3872514B494C@eff.org> <20150531090029.5bd0ce96@quill> <B5FAFAC1-C53E-4DA6-8D9A-DDA6F85B568A@eff.org> <20150601122935.53aef61c@quill>
Message-ID: <4A4C16F9-FBA2-4512-9567-DB511FEBD268@eff.org>

On 01/06/2015, at 3:29 AM, Norbert Bollow wrote:

> The Azerbaijan meeting [...] piggybacked on the 7th Internet
> Governance Forum (IGF) in Baku, Azerbaijan 6-9 November 2012. Being
> that the IGF is a UN-led, multi-stakeholder annual meeting,
> established to discuss public policy issues related to the
> Internet, the IFHR program saw it as an opportunity to convene
> with many Internet governance and Internet rights NGOs at once.
> They did so a few days before the start of the IGF, in a large
> gathering called Best Bits.(*)
> ...
> If in spite of all of the above, you still believe that your claim is
> defensible that "there was and is never any such capacity building
> program behind Best Bits", please arrange for disclosure of the true
> facts about the role and activities of the IFHR program in relation to
> Bestbits, which would in that case have been misunderstood by the
> researchers, and explain how that misunderstanding would have come
> about.

I don't know anything about that program, since it is not my programme, and neither was it ever discussed or considered by the Best Bits steering committee.  The organisation that I was working for at the time had its own programme, with its own funders, that intersected with the Best Bits meeting to some extent.  So did many other participants, including Global Partners of course.  If any of them wanted to report *their participation in* the Best Bits meeting to their funders as an outcome or their programme, that's their business.  That is quite different from saying that Best Bits is part of any particular participant organisation's programme, or is associated with any of any of that organisation's funders.

PS. I'm not going to debate this on-list with you any further.

-- 
Jeremy Malcolm
Senior Global Policy Analyst
Electronic Frontier Foundation
https://eff.org
jmalcolm at eff.org

Tel: 415.436.9333 ext 161

:: Defending Your Rights in the Digital World ::

Public key: https://www.eff.org/files/2014/10/09/key_jmalcolm.txt
PGP fingerprint: FF13 C2E9 F9C3 DF54 7C4F EAC1 F675 AAE2 D2AB 2220
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From willi.uebelherr at riseup.net  Mon Jun  1 13:27:18 2015
From: willi.uebelherr at riseup.net (willi uebelherr)
Date: Mon, 01 Jun 2015 14:27:18 -0300
Subject: [governance] [bestbits] Civil society transparency
In-Reply-To: <20150601122935.53aef61c@quill>
References: <55617E51.5010901@itforchange.net>	<CF50E28585184AFAA4BBC8D7F48AB245@Toshiba>	<5566FE8A.9010209@itforchange.net>	<685563FB-947F-4110-8B81-3872514B494C@eff.org>	<20150531090029.5bd0ce96@quill>	<B5FAFAC1-C53E-4DA6-8D9A-DDA6F85B568A@eff.org> <20150601122935.53aef61c@quill>
Message-ID: <556C95F6.7020705@riseup.net>


Dear Norbert,

i don't like this emphasizing of the separation. It is true, if we 
follow the flow of money, then we know, what people act for specific 
private/state interest.

But also we can read the texts and hear the speeches we understand the 
motivations and intentions. And inside of our cooperation we should be 
tolerant.

We have to search our commons.

many greetings, willi
Buenos Aires, Argentina


Am 01.06.2015 um 07:29 schrieb Norbert Bollow:
> On Sun, 31 May 2015 21:04:25 -0700
> Jeremy Malcolm <jmalcolm at eff.org> wrote:
>
>> On May 31, 2015, at 12:00 AM, Norbert Bollow <nb at bollow.ch> wrote:
>>
>>> Given that the initial set of pointed questions were sparked by the
>>> initial Bestbits meeting having been part of a formal "capacity
>>> building" programme funded in part by the US and UK government,
>>
>> That is 100% false. None of the budget for that meeting was funded by
>> any government grant
>
> Sure. In view of the various circumstances (including in particular the
> presence of a Google representative at the meeting) I have never had
> any reason to harbor any doubts that the disclosures about the funding
> for the formal budget of that meeting might potentially have been
> insufficient, or that they might potentially have been untruthful.
>
> The transparency/disclosure concerns were always about something else,
> namely that (1) the other main organizer/leader of Bestbits besides you
> had, according to the best available information, pursued this at least
> during the 2012 phase as part of a formal, partly US government funded,
> capacity building program, and that (2) it appeared that at least one
> of the other people who were invited to become part of the initial
> Bestbits steering committee have been partners of this "capacity
> building program", and that (3) none of this had been disclosed to
> Bestbits participants at the relevant times.
>
> (Note: I wouldn't have objected to point '(2)' if it had been disclosed
> in a timely manner and with a credible assurance that indeed it was only
> one of the partners of the capacity building program who was invited to
> the initial Bestbits steering committee.)
>
>> and there was and is never any such capacity
>> building program behind Best Bits. The draft report from an
>> independent researcher that you read suggesting otherwise was
>> categorically incorrect and I can only hope was subsequently
>> corrected.
>
> I'd expect that in the public online version which is in the filename
> marked "final draft", any errors pointed out by the interviewees will
> have been corrected.
>
> http://strategiesformediareform.com/wp-content/uploads/2013/06/ICA-Paper-Final-Draft-Lentz-and-Hutchison.pdf
>
> This document states inter alia:
>
> "the digital media rights sector both in the U.S. and elsewhere
> continues to suffer limited resources [...] Recognition	of such
> challenges is often why donor organizations step in to try to help.
> This happens by way of entrepreneurial NGO actors approaching donors,
> or donors approaching NGO actors to address a perceived gap in a
> sector’s capacity to address important policy issues effectively. Yet
> donor involvement—a necessary precondition for policy advocacy
> organizations seeking sustainable capacity—also triggers conflict in
> policy advocacy fields. [...] this paper explores some of the tensions
> and also benefits of what will be referred to as “intermediary”
> organizations’ involvement in helping to build the capacity of an
> emergent policy	advocacy sector: the Internet freedom advocacy
> sector that addresses Internet governance and human rights in a digital
> media context. The paper features early-stage case study research on
> a specific intermediary actor in this field: the Internet Freedom and
> Human Rights (IFHR) program launched in 2012 and coordinated by Global
> Partners & Associates (GP&A) in the UK with its Washington, DC partner,
> the New America	Foundation’s Open Technology Institute (OTI).
> [...]
> The IFHR program enjoys support for this work from several donor
> organizations interested in digital rights issues, which include the
> Ford Foundation, the Open Society Foundation, the Media Democracy Fund,
> the British and Dutch governments, as well as the U.S. State
> Department. GP&A, founded in 2005 and based in London, serves as the
> primary grantee
> [...]
> Working within a short time frame, the program has succeeded in forging
> strong alliances with its local partner organizations, working together
> with them and other NGOs at regional and international forums to
> produce useful policy proposals that have garnered widespread support.
> [..] While working continuously with these partners, the IFHR program
> also organized three large regional meetings for NGOs, scholars and
> activists working on Internet freedom issues. These meetings occurred
> in the fall of 2012, in Kenya, Azerbaijan and Brazil. Furthermore, the
> IFHR program had a significant presence at the World Conference on
> International Telecommunications (WCIT-12) in Dubai, in December.
> [...]
> The Azerbaijan meeting [...] piggybacked on the 7th Internet
> Governance Forum (IGF) in Baku, Azerbaijan 6-9 November 2012. Being
> that the IGF is a UN-led, multi-stakeholder annual meeting,
> established to discuss public policy issues related to the
> Internet, the IFHR program saw it as an opportunity to convene
> with many Internet governance and Internet rights NGOs at once.
> They did so a few days before the start of the IGF, in a large
> gathering called Best Bits.(*) To IFHR program staff, this was a
> significant achievement (especially due to the preponderance of
> disparate perspectives), as the Best Bits meeting resulted in a clear
> consensus amongst those present, and an ensuing statement, which was
> later quoted by the US government (Puddephatt, 2012). Interviews
> with IFHR program staff suggest that to them, the occasion
> demonstrated the true potential for global coalition building, a
> main goal of the IFHR program."
> (*) At this point there is a reference to an endnote which says:
> "http://bestbits.net/ ;	from interviews we learned that the term
> “Best Bits” was suggested by Dr. Jeremy Malcolm, senior policy
> officer for Consumers International’s “Consumers in the Digital
> Age” programme:
> http://www.consumersinternational.org/who-we-are/our-team/jeremy-malcolm#.UaZIq-BYSK8
> "
>
> If in spite of all of the above, you still believe that your claim is
> defensible that "there was and is never any such capacity building
> program behind Best Bits", please arrange for disclosure of the true
> facts about the role and activities of the IFHR program in relation to
> Bestbits, which would in that case have been misunderstood by the
> researchers, and explain how that misunderstanding would have come
> about.
>
> Greetings,
> Norbert
>
>
>
> ____________________________________________________________
> You received this message as a subscriber on the list:
>       bestbits at lists.bestbits.net.
> To unsubscribe or change your settings, visit:
>       http://lists.bestbits.net/wws/info/bestbits
>

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From lmcknigh at syr.edu  Mon Jun  1 14:41:32 2015
From: lmcknigh at syr.edu (Lee W McKnight)
Date: Mon, 1 Jun 2015 18:41:32 +0000
Subject: [governance] FW: [IP] Internet Society and Smithsonian's National
 Museum of American History to Co-host Summit Exploring Past, Present and
 Future of the Internet
In-Reply-To: <CAKx4trj8Y-z-2U-523Sc7B3=-AiViG1h0ZrS-yEFCVooav6yNA@mail.gmail.com>
References: <CAKx4trj8Y-z-2U-523Sc7B3=-AiViG1h0ZrS-yEFCVooav6yNA@mail.gmail.com>
Message-ID: <7c8a0da3c5eb443bab54509d1941cc1d@EX13-MBX-07.ad.syr.edu>

FYI, maybe of interest


________________________________
From: Dave Farber <dave at farber.net>
Sent: Monday, June 1, 2015 2:10 PM
To: ip
Subject: [IP] Internet Society and Smithsonian's National Museum of American History to Co-host Summit Exploring Past, Present and Future of the Internet






Internet Society and Smithsonians National Museum of American History to Co-host Summit Exploring Past, Present and Future of the Internet

Mitchell Baker, Vint Cerf, David Farber and Sebastian Thrun to provide insights into origins and future of the Internet

[Washington, DC and Geneva, Switzerland  1 June 2015]  The Internet Society and the Smithsonians National Museum of American History have joined forces to co-host a summit entitled The Internet Age: Founders to Future. Prominent contributors to the rich history of the Internet will discuss the diverse elements that have enabled the innovations leading to the Internet Age and provide perspectives on the challenges and opportunities facing the Internets future. The event will take place on June 11, 2015 at 2:30pm ET in the Museums Warner Bros. Theater, and will also be webcast live, http://raiseitup.si.edu/global-summit/.

The Internet is not the invention of any single individual, but rather the result of immeasurable steps by thousands of people across the globe, said Kathy Brown, President and CEO of the Internet Society. The Internet Society is delighted to collaborate with the Museum to assemble this very special group of luminaries  including several inductees in the Internet Hall of Fame  who hold a unique perspective on both the origin and evolution of what many believe to be the most transformative invention of our age.

Panelists will discuss the continuum of the Internet, from how it was imagined to where the Internet is taking us in the future.  Moderated by Eric Hintz, historian with the Museums Lemelson Center for the Study of Invention and Innovation, the panelists will include:

Mitchell Baker is Executive Chairwoman of the Mozilla Foundation and the leader of the Mozilla Project. She is responsible for organizing and motivating a massive, worldwide, collective of employees and volunteers who are breathing new life into the Internet with the Firefox Web browser and other products. Ms. Baker was inducted into the Internet Hall of Fame in 2012.

Vint Cerf, widely known as one of the "Fathers of the Internet," is the co-designer of the TCP/IP protocols and the architecture of the Internet.  He has served as vice president and chief Internet evangelist for Google since October 2005. Mr. Cerf was inducted into the Internet Hall of Fame in 2012.

David Farber played a key role in many systems that converged into today's Internet. He is an Internet Hall of Fame inductee and the Alfred Fitler Moore Professor Emeritus at the University of Pennsylvania and Adjunct Professor at Carnegie Mellon University.

Sebastian Thrun is a scientist, educator, researcher, inventor, and entrepreneur.  Today, he is the founder and CEO of Udacity, a company dedicated to democratizing learning for everyone.  Udacity has almost 4 million students in over 190 countries.

For more information on the Internet Age: Founders to Future, visit: http://www.internetsociety.org/events/internet-age-founders-future
Archives<https://www.listbox.com/member/archive/247/=now> [https://www.listbox.com/images/feed-icon-10x10.jpg] <https://www.listbox.com/member/archive/rss/247/8923115-8446eb07>  | Modify<https://www.listbox.com/member/?member_id=8923115&id_secret=8923115-86ed04cc> Your Subscription | Unsubscribe Now<https://www.listbox.com/unsubscribe/?member_id=8923115&id_secret=8923115-e899f1f0&post_id=20150601141048:85D96B30-0889-11E5-BA7C-AC103F71E250>     [https://www.listbox.com/images/listbox-logo-small.png] <http://www.listbox.com/>
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From anriette at apc.org  Mon Jun  1 14:57:50 2015
From: anriette at apc.org (Anriette Esterhuysen)
Date: Mon, 01 Jun 2015 20:57:50 +0200
Subject: [governance] [bestbits] Civil society transparency
In-Reply-To: <556C95F6.7020705@riseup.net>
References: <55617E51.5010901@itforchange.net>	<CF50E28585184AFAA4BBC8D7F48AB245@Toshiba>	<5566FE8A.9010209@itforchange.net>	<685563FB-947F-4110-8B81-3872514B494C@eff.org>	<20150531090029.5bd0ce96@quill>	<B5FAFAC1-C53E-4DA6-8D9A-DDA6F85B568A@eff.org> <20150601122935.53aef61c@quill> <556C95F6.7020705@riseup.net>
Message-ID: <556CAB2E.8050604@apc.org>

Dear all

I strongly identify with what Willi says below.

Transparency of funding in civil society is important and for most
organisations in the sector this is part of their practice.

Sadly some governments are using funding to silence people, but even
then we should continue to maintain as much transparency as possible.

For APC this is not just about being transparent and publishing our
funding sources in our annual reports.. it is also about having a policy
among the network members about who to accept funding from, who not to..
and so on - it is also about giving our members autonomy. APC does not
receive funding from the US State Dept, but many of our members do, and
we know that without that funding they would not be able to do much of
their important work. APC receives funding from the Ford Foundation, but
some of our members would not, and again we value and respect that.

BUT, as Willi ways, when it comes to people's positions and views in
civil society spaces I believe we should let people's work, texts and
speech speak and we should develop our understandings of their politics
and their views based on what they say, and not based on who they get
funding from. Many people in these mailing lists actually don't get any
funding at all and participate as individuals on completely voluntary basis.

I also like your words about 'inside our cooperation we should be tolerant'.

Warm greetings.

Anriette



On 01/06/2015 19:27, willi uebelherr wrote:
> 
> Dear Norbert,
> 
> i don't like this emphasizing of the separation. It is true, if we
> follow the flow of money, then we know, what people act for specific
> private/state interest.
> 
> But also we can read the texts and hear the speeches we understand the
> motivations and intentions. And inside of our cooperation we should be
> tolerant.
> 
> We have to search our commons.
> 
> many greetings, willi
> Buenos Aires, Argentina
> 
> 
> Am 01.06.2015 um 07:29 schrieb Norbert Bollow:
>> On Sun, 31 May 2015 21:04:25 -0700
>> Jeremy Malcolm <jmalcolm at eff.org> wrote:
>>
>>> On May 31, 2015, at 12:00 AM, Norbert Bollow <nb at bollow.ch> wrote:
>>>
>>>> Given that the initial set of pointed questions were sparked by the
>>>> initial Bestbits meeting having been part of a formal "capacity
>>>> building" programme funded in part by the US and UK government,
>>>
>>> That is 100% false. None of the budget for that meeting was funded by
>>> any government grant
>>
>> Sure. In view of the various circumstances (including in particular the
>> presence of a Google representative at the meeting) I have never had
>> any reason to harbor any doubts that the disclosures about the funding
>> for the formal budget of that meeting might potentially have been
>> insufficient, or that they might potentially have been untruthful.
>>
>> The transparency/disclosure concerns were always about something else,
>> namely that (1) the other main organizer/leader of Bestbits besides you
>> had, according to the best available information, pursued this at least
>> during the 2012 phase as part of a formal, partly US government funded,
>> capacity building program, and that (2) it appeared that at least one
>> of the other people who were invited to become part of the initial
>> Bestbits steering committee have been partners of this "capacity
>> building program", and that (3) none of this had been disclosed to
>> Bestbits participants at the relevant times.
>>
>> (Note: I wouldn't have objected to point '(2)' if it had been disclosed
>> in a timely manner and with a credible assurance that indeed it was only
>> one of the partners of the capacity building program who was invited to
>> the initial Bestbits steering committee.)
>>
>>> and there was and is never any such capacity
>>> building program behind Best Bits. The draft report from an
>>> independent researcher that you read suggesting otherwise was
>>> categorically incorrect and I can only hope was subsequently
>>> corrected.
>>
>> I'd expect that in the public online version which is in the filename
>> marked "final draft", any errors pointed out by the interviewees will
>> have been corrected.
>>
>> http://strategiesformediareform.com/wp-content/uploads/2013/06/ICA-Paper-Final-Draft-Lentz-and-Hutchison.pdf
>>
>>
>> This document states inter alia:
>>
>> "the digital media rights sector both in the U.S. and elsewhere
>> continues to suffer limited resources [...] Recognition    of such
>> challenges is often why donor organizations step in to try to help.
>> This happens by way of entrepreneurial NGO actors approaching donors,
>> or donors approaching NGO actors to address a perceived gap in a
>> sector’s capacity to address important policy issues effectively. Yet
>> donor involvement—a necessary precondition for policy advocacy
>> organizations seeking sustainable capacity—also triggers conflict in
>> policy advocacy fields. [...] this paper explores some of the tensions
>> and also benefits of what will be referred to as “intermediary”
>> organizations’ involvement in helping to build the capacity of an
>> emergent policy    advocacy sector: the Internet freedom advocacy
>> sector that addresses Internet governance and human rights in a digital
>> media context. The paper features early-stage case study research on
>> a specific intermediary actor in this field: the Internet Freedom and
>> Human Rights (IFHR) program launched in 2012 and coordinated by Global
>> Partners & Associates (GP&A) in the UK with its Washington, DC partner,
>> the New America    Foundation’s Open Technology Institute (OTI).
>> [...]
>> The IFHR program enjoys support for this work from several donor
>> organizations interested in digital rights issues, which include the
>> Ford Foundation, the Open Society Foundation, the Media Democracy Fund,
>> the British and Dutch governments, as well as the U.S. State
>> Department. GP&A, founded in 2005 and based in London, serves as the
>> primary grantee
>> [...]
>> Working within a short time frame, the program has succeeded in forging
>> strong alliances with its local partner organizations, working together
>> with them and other NGOs at regional and international forums to
>> produce useful policy proposals that have garnered widespread support.
>> [..] While working continuously with these partners, the IFHR program
>> also organized three large regional meetings for NGOs, scholars and
>> activists working on Internet freedom issues. These meetings occurred
>> in the fall of 2012, in Kenya, Azerbaijan and Brazil. Furthermore, the
>> IFHR program had a significant presence at the World Conference on
>> International Telecommunications (WCIT-12) in Dubai, in December.
>> [...]
>> The Azerbaijan meeting [...] piggybacked on the 7th Internet
>> Governance Forum (IGF) in Baku, Azerbaijan 6-9 November 2012. Being
>> that the IGF is a UN-led, multi-stakeholder annual meeting,
>> established to discuss public policy issues related to the
>> Internet, the IFHR program saw it as an opportunity to convene
>> with many Internet governance and Internet rights NGOs at once.
>> They did so a few days before the start of the IGF, in a large
>> gathering called Best Bits.(*) To IFHR program staff, this was a
>> significant achievement (especially due to the preponderance of
>> disparate perspectives), as the Best Bits meeting resulted in a clear
>> consensus amongst those present, and an ensuing statement, which was
>> later quoted by the US government (Puddephatt, 2012). Interviews
>> with IFHR program staff suggest that to them, the occasion
>> demonstrated the true potential for global coalition building, a
>> main goal of the IFHR program."
>> (*) At this point there is a reference to an endnote which says:
>> "http://bestbits.net/ ;    from interviews we learned that the term
>> “Best Bits” was suggested by Dr. Jeremy Malcolm, senior policy
>> officer for Consumers International’s “Consumers in the Digital
>> Age” programme:
>> http://www.consumersinternational.org/who-we-are/our-team/jeremy-malcolm#.UaZIq-BYSK8
>>
>> "
>>
>> If in spite of all of the above, you still believe that your claim is
>> defensible that "there was and is never any such capacity building
>> program behind Best Bits", please arrange for disclosure of the true
>> facts about the role and activities of the IFHR program in relation to
>> Bestbits, which would in that case have been misunderstood by the
>> researchers, and explain how that misunderstanding would have come
>> about.
>>
>> Greetings,
>> Norbert
>>
>>
>>
>> ____________________________________________________________
>> You received this message as a subscriber on the list:
>>       bestbits at lists.bestbits.net.
>> To unsubscribe or change your settings, visit:
>>       http://lists.bestbits.net/wws/info/bestbits
>>
> 
> 
> ____________________________________________________________
> You received this message as a subscriber on the list:
>      bestbits at lists.bestbits.net.
> To unsubscribe or change your settings, visit:
>      http://lists.bestbits.net/wws/info/bestbits
> 

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From nb at bollow.ch  Mon Jun  1 16:16:22 2015
From: nb at bollow.ch (Norbert Bollow)
Date: Mon, 1 Jun 2015 22:16:22 +0200
Subject: [governance] Civil society transparency
In-Reply-To: <4A4C16F9-FBA2-4512-9567-DB511FEBD268@eff.org>
References: <55617E51.5010901@itforchange.net>
	<CF50E28585184AFAA4BBC8D7F48AB245@Toshiba>
	<5566FE8A.9010209@itforchange.net>
	<685563FB-947F-4110-8B81-3872514B494C@eff.org>
	<20150531090029.5bd0ce96@quill>
	<B5FAFAC1-C53E-4DA6-8D9A-DDA6F85B568A@eff.org>
	<20150601122935.53aef61c@quill>
	<4A4C16F9-FBA2-4512-9567-DB511FEBD268@eff.org>
Message-ID: <20150601221622.37991d12@quill>

On Mon, 1 Jun 2015 09:36:49 -0700
Jeremy Malcolm <jmalcolm at eff.org> wrote:

> On 01/06/2015, at 3:29 AM, Norbert Bollow wrote:
> 
> > the IFHR program saw it as an opportunity to convene
> > with many Internet governance and Internet rights NGOs at once.
> > They did so a few days before the start of the IGF, in a large
> > gathering called Best Bits.(*)
> > ...
> > If in spite of all of the above, you still believe that your claim
> > is defensible that "there was and is never any such capacity
> > building program behind Best Bits", please arrange for disclosure
> > of the true facts about the role and activities of the IFHR program
> > in relation to Bestbits, which would in that case have been
> > misunderstood by the researchers, and explain how that
> > misunderstanding would have come about.
> 
> I don't know anything about that program, since it is not my
> programme, and neither was it ever discussed or considered by the
> Best Bits steering committee.  The organisation that I was working
> for at the time had its own programme, with its own funders, that
> intersected with the Best Bits meeting to some extent.  So did many
> other participants, including Global Partners of course.

Of course, Global Partners were not just any participant.  Andrew
Puddephatt und Gene Kimmelman, who according to the research paper were
quite central people in the IFHR program, were quite centrally involved
in running the initial Bestbits meeting.

> If any of
> them wanted to report *their participation in* the Best Bits meeting
> to their funders as an outcome or their programme, that's their
> business.

Sure. But the research paper talks about the convening of the Bestbits
meeting, not just about someone's participation.

> PS. I'm not going to debate this on-list with you any further.


In a separate message, Andrew Puddephatt wrote: "On the question of
funding of the BB meeting in Baku, the only specific funding earmarked
for this meeting was a grant from Google which was distributed to
participants from the global south. Our participation as GPA was
supported by the Ford Foundation as has been our subsequent BB activity.
My last post on the subject."


In view of this concert of postings which implicitly declare intentions
to not post anything about the IFHR program and its relevance (or
non-relevance) to the initial Bestbits meeting, and since therefore
Jeremy's claim "there was and is never any such capacity building
program behind Best Bits" is not going to be defended, I'm going to
continue believing that the research paper is correct and that Jeremy's
claim is therefore false.


Consequently I'll continue to be of the opinion that the role of the
IFHR program in convening and leading the initial Bestbits meeting, as
well as the goals and funders of the IFHR program, should really have
been disclosed, and that in fact it is quite scandalous that this did
not happen.

Greetings,
Norbert

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From lorena at collaboratory.de  Mon Jun  1 18:04:31 2015
From: lorena at collaboratory.de (Lorena Jaume-Palasi)
Date: Tue, 2 Jun 2015 01:04:31 +0300
Subject: [governance] A Heterostakeholder Cooperation for Sustainable
 Internet Policymaking
In-Reply-To: <CAOz-jXSwFkosE_RfYDEcARaAuZBXy-nYrDdpSNeHqWJFUG8Ksg@mail.gmail.com>
References: <20150601071355.2700328f4bbfc197480209526f2a1375.8b94c3b3fb.wbe@email07.europe.secureserver.net>
	<CAOz-jXSwFkosE_RfYDEcARaAuZBXy-nYrDdpSNeHqWJFUG8Ksg@mail.gmail.com>
Message-ID: <CAPqXojJvVzcR-DJx2Hd-UMYpNgcjgEuRYkNC6bVt28eStqv0Jw@mail.gmail.com>

Looking much forward to reading it!
Cheers
Lorena

2015-06-01 19:06 GMT+03:00 Chris Prince Udochukwu Njoku <
udochukwu.njoku at unn.edu.ng>:

> Thanks, Luca, for sharing.
>
> CPU
>
> _____________________________________
> Chris Prince Udochukwu Njoku (PhD)
> University of Nigeria
>  On Jun 1, 2015 3:15 PM, <LB at lucabelli.net> wrote:
>
>> Dear all,
>> Last week I published an article that might be of interest to some of you
>> :)
>> Comments are more than welcome!
>> Best regards,
>> Luca
>>
>> A Heterostakeholder Cooperation for Sustainable Internet Policymaking
>> <http://policyreview.info/articles/analysis/heterostakeholder-cooperation-sustainable-internet-policymaking>
>> Author(s) Luca Belli <http://policyreview.info/users/luca-belli>
>> Published on 27 May 2015 | DOI: 10.14763/2015.2.364
>>  This article revisits the multistakeholder approach to internet
>> policymaking and makes a case for a new model recognising the heterogeneity
>> of stakeholders’ interests.
>>  KEYWORDS: Heterostakeholder
>> <http://policyreview.info/tags/heterostakeholder>, Multistakeholder
>> <http://policyreview.info/tags/multistakeholder>, Internet policymaking
>> <http://policyreview.info/tags/internet-policymaking>
>>
>> Luca Belli <http://www.linkedin.com/pub/luca-belli/24/20/1a4>, PhD
>> Researcher, Center for Technology & Society, FGV Rio de Janeiro
>> <http://direitorio.fgv.br/cts>
>> Founder and Co-chair, IGF Dynamic Coalition on Network Neutrality
>> <http://networkneutrality.info/about.html>
>> Co-founder and Co-chair, IGF Dynamic Coalition on Platform Responsibility
>> <http://platformresponsibility.info/>
>>
>>
>> <http://networkneutrality.info/about.html>
>>
>> ____________________________________________________________
>> You received this message as a subscriber on the list:
>>      governance at lists.igcaucus.org
>> To be removed from the list, visit:
>>      http://www.igcaucus.org/unsubscribing
>>
>> For all other list information and functions, see:
>>      http://lists.igcaucus.org/info/governance
>> To edit your profile and to find the IGC's charter, see:
>>      http://www.igcaucus.org/
>>
>> Translate this email: http://translate.google.com/translate_t
>>
>>
> ____________________________________________________________
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>


-- 

Lorena Jaume-Palasí ∙ Coordinator, Global Internet Governance Arbeitsgruppe

Internet & Gesellschaft Co:llaboratory e.V.

www.intgovforum.de ∙ www.collaboratory.de ∙ Newsletter
<http://feedburner.google.com/fb/a/mailverify?uri=collaboratory&loc=de_DE> ∙
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From parminder at itforchange.net  Tue Jun  2 01:48:31 2015
From: parminder at itforchange.net (parminder)
Date: Tue, 02 Jun 2015 11:18:31 +0530
Subject: [governance] [bestbits] Civil society transparency
In-Reply-To: <5564E14D.9000203@eff.org>
References: <55617E51.5010901@itforchange.net> <CF50E28585184AFAA4BBC8D7F48AB245@Toshiba> <5564E14D.9000203@eff.org>
Message-ID: <556D43AF.2050406@itforchange.net>



On Wednesday 27 May 2015 02:40 AM, Jeremy Malcolm wrote:
> On 24/05/2015 11:57 pm, Ian Peter wrote:
>> Secondly, I wonder how it would work in CS which has so many people
>> who are basically acting as individuals rather than representatives
>> of organisations. Many if not most of us also have non CS
>> affiliations (eg membership of ISOC, business or governmental
>> employees if we are cs volunteers, academic postings etc) so the
>> “pure” CS rep is probably a bit hard to find. I am not sure what we
>> would gain by having a register of all our multiple affiliations
>> which would need regular updating to be of any use.  I think we need
>> to ensure our major coalitions (BB, JNC, IGC, APC, NCSG) act
>> transparently, and by and large I think they do. But I am not sure of
>> the value of extending this to what is probably tens of thousands of
>> members or organisations affiliated with these larger groups.
>
> Agreed.  I also feel that it's a misplaced priority.  If any of us
> actually had enough influence to being making significant impacts on
> policy, then the expenditure of time and resources on self-policing
> ourselves in this fashion might make some sense.  

Why do then many civil society transparency initiatives exist at all?
And then isnt the whole idea of multistakeholderism about a greater
impact of civil society on actual policy making, which simply raises the
stake so much higher, and could only mean that civil society
transparency is even more needed in the IG space even more than other
spaces... You would argue for equal footing with governments on the
policy making table but not equal footing in terms of transparency and
accountability of civil society actors!? A strange proposition, and if I
remember right it is you who recently spoke of open gov initiative and
how it should be somehow extended to the IG space. Open gov initiative
is nothing if not about various kinds of transparency and accountability
in policy development circles of all the involved actors. If anything,
civil society standards are supposed to be much higher bec it is the CS
which traditionally asks the most questions from others in these regard.

I think you are making rather convoluted and weak arguments, many of
which cancel each other. It is extremely disappointing that this
discussion is taking place in this manner in what are supposed to be two
civil society elists/ groups of global repute.

> But since we have enough difficulty as it is just with being heard,
> let alone having an impact, it just seems a real misallocation of
> scarce resources for us to be placing ourselves under the microscope
> like this, especially since nobody but ourselves is raising the question.

If you think no one else is raising these questions, then you are simply
not listening. Political discourse at least in the South , but in fact
also in the North, is rife with discussions about transparency and
accountability of all pulbic actors, including, and often pointedly,
civil society, and what kind of monumental distortions get caused in
default. Everyone from whom transparency/ accountability is sought would
like to say that it is not an impotant issue and the such, but that does
not cut much ice.  

>   Instead of a register, there are already voluntary transparency
> pledges that one can adopt (eg the INGO Accountability Charter,
> http://www.ingoaccountabilitycharter.org/).  Anything heavier than
> that is, I feel, difficult to justify.

Here again you are arguing something in direct opposition to some of
your earlier arguments, about paucity of resources with civil society
orgs.. I am sure you would have seen the details of the initiative that
you link to, and therefore know that it is much much more complex and
demanding than a simple transparency register (which also is of course
voluntary, how else it could be?),  somewhat on the lines of the EU
Transparency Register
<http://ec.europa.eu/transparencyregister/public/homePage.do>, that I am
proposing... So why and how is a less complex proposal being confronted
by a much more complex and demanding option, while at the same time
making the argument that we dont have the kind of resources that are
required, is simply beyond me .

>
> Also, take note of this article (from the left, by the way),
> criticising efforts to enforce formal accountability standards on
> civil society organisations:
>
> http://hapinternational.org/pool/files/ngos,-civil-soc.pdf

Jeremy, again I wish you have read the details before you quickly
assembled this repertoire of evidences in support of what clearly is a
pre judged position, that global IG civil society does not need any kind
of a  transparency initiative. Apart from the fact that the central
motivation of the article that you cite is to fend against neoliberal
attacks on civil society, which is hardly your case, while the article
explores issues with developing more complex accountability systems for
civil society, /*it is strongly and clearly for basic transparency of
civil society groups*/... Quoting from its second last page, where it
begins to build its conclusions

    "The key to this must be, as SustainAbility (2003) so eloquently
    demonstrate, transparency. Who the organisation is; what it does;
    how it is funded; and what the organisation does with the money it
    receives are all essential as either pre-requisites for the
    development of accountability relationships, or as a critical
    element in the discharge of that relationship. This, it seems, could
    be a first pre-requisite for accountability: and especially for NGOs
    as this would help to expose the “astroturf” NGOs as well as
    developing a more benign accountability amongst those NGOs with a
    genuine concern for the wider public good."

And then very significantly, in the concluding part, in fact in its very
last sentence, the article says:
/*
*//**/ /**/

    /*"... combination of minimum transparency plus a level of
    accountability commensurate with stakeholders, size and economic
    power should discomfort the astroturf and the explicitly
    business-oriented NGOs rather more than it will discomfort those
    NGOs that the neo-liberal backlash has been seeking to discredit. As
    such, accountability seems like a good thing."*/


Did you forget to read this :)...

You have to make up your mind whether you agree with the article you
quote or you do not.... IMHO, you are just assembling a desperate case
here.... One is so sorry, disappointed, and almost appalled that we are
having such arguments against basic transparency of civil society..

parminder

  

>
> -- 
> Jeremy Malcolm
> Senior Global Policy Analyst
> Electronic Frontier Foundation
> https://eff.org
> jmalcolm at eff.org
>
> Tel: 415.436.9333 ext 161
>
> :: Defending Your Rights in the Digital World ::
>
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From udochukwu.njoku at unn.edu.ng  Tue Jun  2 05:23:46 2015
From: udochukwu.njoku at unn.edu.ng (Chris Prince Udochukwu Njoku)
Date: Tue, 2 Jun 2015 10:23:46 +0100
Subject: [governance] [bestbits] Civil society transparency
In-Reply-To: <556CAB2E.8050604@apc.org>
References: <55617E51.5010901@itforchange.net>
	<CF50E28585184AFAA4BBC8D7F48AB245@Toshiba>
	<5566FE8A.9010209@itforchange.net>
	<685563FB-947F-4110-8B81-3872514B494C@eff.org>
	<20150531090029.5bd0ce96@quill>
	<B5FAFAC1-C53E-4DA6-8D9A-DDA6F85B568A@eff.org>
	<20150601122935.53aef61c@quill>
	<556C95F6.7020705@riseup.net>
	<556CAB2E.8050604@apc.org>
Message-ID: <CAOz-jXQ7CdsB0OTrvP5x3Q0BZr955_ZxZxFnQ=dvZcXQNL2L0w@mail.gmail.com>

Anriette just hit it. There's this dictum: "He who plays the piper dictates
the tune." The extent to which a CSO opens its arms to a donor's funds
ought to be determined by the extent to which the CSO understands how far
the funding will strengthen or weaken it in its march to accomplishing its
mission. In our quest for free, open and safe Internet, at a time when
governments and their organizations are itching to be in control (for
reasons we all know well) we have to be thoughtfully selective in who funds
us if we still must think, voice and act our way to our stated goals.

My regards to all.

CPU
_______________________________________
Chris Prince Udochukwu Njoku (PhD)
University of Nigeria
 On Jun 1, 2015 7:58 PM, "Anriette Esterhuysen" <anriette at apc.org> wrote:

> Dear all
>
> I strongly identify with what Willi says below.
>
> Transparency of funding in civil society is important and for most
> organisations in the sector this is part of their practice.
>
> Sadly some governments are using funding to silence people, but even
> then we should continue to maintain as much transparency as possible.
>
> For APC this is not just about being transparent and publishing our
> funding sources in our annual reports.. it is also about having a policy
> among the network members about who to accept funding from, who not to..
> and so on - it is also about giving our members autonomy. APC does not
> receive funding from the US State Dept, but many of our members do, and
> we know that without that funding they would not be able to do much of
> their important work. APC receives funding from the Ford Foundation, but
> some of our members would not, and again we value and respect that.
>
> BUT, as Willi ways, when it comes to people's positions and views in
> civil society spaces I believe we should let people's work, texts and
> speech speak and we should develop our understandings of their politics
> and their views based on what they say, and not based on who they get
> funding from. Many people in these mailing lists actually don't get any
> funding at all and participate as individuals on completely voluntary
> basis.
>
> I also like your words about 'inside our cooperation we should be
> tolerant'.
>
> Warm greetings.
>
> Anriette
>
>
>
> On 01/06/2015 19:27, willi uebelherr wrote:
> >
> > Dear Norbert,
> >
> > i don't like this emphasizing of the separation. It is true, if we
> > follow the flow of money, then we know, what people act for specific
> > private/state interest.
> >
> > But also we can read the texts and hear the speeches we understand the
> > motivations and intentions. And inside of our cooperation we should be
> > tolerant.
> >
> > We have to search our commons.
> >
> > many greetings, willi
> > Buenos Aires, Argentina
> >
> >
> > Am 01.06.2015 um 07:29 schrieb Norbert Bollow:
> >> On Sun, 31 May 2015 21:04:25 -0700
> >> Jeremy Malcolm <jmalcolm at eff.org> wrote:
> >>
> >>> On May 31, 2015, at 12:00 AM, Norbert Bollow <nb at bollow.ch> wrote:
> >>>
> >>>> Given that the initial set of pointed questions were sparked by the
> >>>> initial Bestbits meeting having been part of a formal "capacity
> >>>> building" programme funded in part by the US and UK government,
> >>>
> >>> That is 100% false. None of the budget for that meeting was funded by
> >>> any government grant
> >>
> >> Sure. In view of the various circumstances (including in particular the
> >> presence of a Google representative at the meeting) I have never had
> >> any reason to harbor any doubts that the disclosures about the funding
> >> for the formal budget of that meeting might potentially have been
> >> insufficient, or that they might potentially have been untruthful.
> >>
> >> The transparency/disclosure concerns were always about something else,
> >> namely that (1) the other main organizer/leader of Bestbits besides you
> >> had, according to the best available information, pursued this at least
> >> during the 2012 phase as part of a formal, partly US government funded,
> >> capacity building program, and that (2) it appeared that at least one
> >> of the other people who were invited to become part of the initial
> >> Bestbits steering committee have been partners of this "capacity
> >> building program", and that (3) none of this had been disclosed to
> >> Bestbits participants at the relevant times.
> >>
> >> (Note: I wouldn't have objected to point '(2)' if it had been disclosed
> >> in a timely manner and with a credible assurance that indeed it was only
> >> one of the partners of the capacity building program who was invited to
> >> the initial Bestbits steering committee.)
> >>
> >>> and there was and is never any such capacity
> >>> building program behind Best Bits. The draft report from an
> >>> independent researcher that you read suggesting otherwise was
> >>> categorically incorrect and I can only hope was subsequently
> >>> corrected.
> >>
> >> I'd expect that in the public online version which is in the filename
> >> marked "final draft", any errors pointed out by the interviewees will
> >> have been corrected.
> >>
> >>
> http://strategiesformediareform.com/wp-content/uploads/2013/06/ICA-Paper-Final-Draft-Lentz-and-Hutchison.pdf
> >>
> >>
> >> This document states inter alia:
> >>
> >> "the digital media rights sector both in the U.S. and elsewhere
> >> continues to suffer limited resources [...] Recognition    of such
> >> challenges is often why donor organizations step in to try to help.
> >> This happens by way of entrepreneurial NGO actors approaching donors,
> >> or donors approaching NGO actors to address a perceived gap in a
> >> sector’s capacity to address important policy issues effectively. Yet
> >> donor involvement—a necessary precondition for policy advocacy
> >> organizations seeking sustainable capacity—also triggers conflict in
> >> policy advocacy fields. [...] this paper explores some of the tensions
> >> and also benefits of what will be referred to as “intermediary”
> >> organizations’ involvement in helping to build the capacity of an
> >> emergent policy    advocacy sector: the Internet freedom advocacy
> >> sector that addresses Internet governance and human rights in a digital
> >> media context. The paper features early-stage case study research on
> >> a specific intermediary actor in this field: the Internet Freedom and
> >> Human Rights (IFHR) program launched in 2012 and coordinated by Global
> >> Partners & Associates (GP&A) in the UK with its Washington, DC partner,
> >> the New America    Foundation’s Open Technology Institute (OTI).
> >> [...]
> >> The IFHR program enjoys support for this work from several donor
> >> organizations interested in digital rights issues, which include the
> >> Ford Foundation, the Open Society Foundation, the Media Democracy Fund,
> >> the British and Dutch governments, as well as the U.S. State
> >> Department. GP&A, founded in 2005 and based in London, serves as the
> >> primary grantee
> >> [...]
> >> Working within a short time frame, the program has succeeded in forging
> >> strong alliances with its local partner organizations, working together
> >> with them and other NGOs at regional and international forums to
> >> produce useful policy proposals that have garnered widespread support.
> >> [..] While working continuously with these partners, the IFHR program
> >> also organized three large regional meetings for NGOs, scholars and
> >> activists working on Internet freedom issues. These meetings occurred
> >> in the fall of 2012, in Kenya, Azerbaijan and Brazil. Furthermore, the
> >> IFHR program had a significant presence at the World Conference on
> >> International Telecommunications (WCIT-12) in Dubai, in December.
> >> [...]
> >> The Azerbaijan meeting [...] piggybacked on the 7th Internet
> >> Governance Forum (IGF) in Baku, Azerbaijan 6-9 November 2012. Being
> >> that the IGF is a UN-led, multi-stakeholder annual meeting,
> >> established to discuss public policy issues related to the
> >> Internet, the IFHR program saw it as an opportunity to convene
> >> with many Internet governance and Internet rights NGOs at once.
> >> They did so a few days before the start of the IGF, in a large
> >> gathering called Best Bits.(*) To IFHR program staff, this was a
> >> significant achievement (especially due to the preponderance of
> >> disparate perspectives), as the Best Bits meeting resulted in a clear
> >> consensus amongst those present, and an ensuing statement, which was
> >> later quoted by the US government (Puddephatt, 2012). Interviews
> >> with IFHR program staff suggest that to them, the occasion
> >> demonstrated the true potential for global coalition building, a
> >> main goal of the IFHR program."
> >> (*) At this point there is a reference to an endnote which says:
> >> "http://bestbits.net/ ;    from interviews we learned that the term
> >> “Best Bits” was suggested by Dr. Jeremy Malcolm, senior policy
> >> officer for Consumers International’s “Consumers in the Digital
> >> Age” programme:
> >>
> http://www.consumersinternational.org/who-we-are/our-team/jeremy-malcolm#.UaZIq-BYSK8
> >>
> >> "
> >>
> >> If in spite of all of the above, you still believe that your claim is
> >> defensible that "there was and is never any such capacity building
> >> program behind Best Bits", please arrange for disclosure of the true
> >> facts about the role and activities of the IFHR program in relation to
> >> Bestbits, which would in that case have been misunderstood by the
> >> researchers, and explain how that misunderstanding would have come
> >> about.
> >>
> >> Greetings,
> >> Norbert
> >>
> >>
> >>
> >> ____________________________________________________________
> >> You received this message as a subscriber on the list:
> >>       bestbits at lists.bestbits.net.
> >> To unsubscribe or change your settings, visit:
> >>       http://lists.bestbits.net/wws/info/bestbits
> >>
> >
> >
> > ____________________________________________________________
> > You received this message as a subscriber on the list:
> >      bestbits at lists.bestbits.net.
> > To unsubscribe or change your settings, visit:
> >      http://lists.bestbits.net/wws/info/bestbits
> >
>
>
> ____________________________________________________________
> You received this message as a subscriber on the list:
>      governance at lists.igcaucus.org
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>
> For all other list information and functions, see:
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From nb at bollow.ch  Tue Jun  2 05:45:46 2015
From: nb at bollow.ch (Norbert Bollow)
Date: Tue, 2 Jun 2015 11:45:46 +0200
Subject: [governance] [bestbits] Civil society transparency
In-Reply-To: <CAOz-jXQ7CdsB0OTrvP5x3Q0BZr955_ZxZxFnQ=dvZcXQNL2L0w@mail.gmail.com>
References: <55617E51.5010901@itforchange.net>
	<CF50E28585184AFAA4BBC8D7F48AB245@Toshiba>
	<5566FE8A.9010209@itforchange.net>
	<685563FB-947F-4110-8B81-3872514B494C@eff.org>
	<20150531090029.5bd0ce96@quill>
	<B5FAFAC1-C53E-4DA6-8D9A-DDA6F85B568A@eff.org>
	<20150601122935.53aef61c@quill>
	<556C95F6.7020705@riseup.net>
	<556CAB2E.8050604@apc.org>
	<CAOz-jXQ7CdsB0OTrvP5x3Q0BZr955_ZxZxFnQ=dvZcXQNL2L0w@mail.gmail.com>
Message-ID: <20150602114546.523498ea@quill>

On Tue, 2 Jun 2015 10:23:46 +0100
Chris Prince Udochukwu Njoku <udochukwu.njoku at unn.edu.ng> wrote:

> There's this dictum: "He who plays the piper
> dictates the tune." The extent to which a CSO opens its arms to a
> donor's funds ought to be determined by the extent to which the CSO
> understands how far the funding will strengthen or weaken it in its
> march to accomplishing its mission. In our quest for free, open and
> safe Internet, at a time when governments and their organizations are
> itching to be in control (for reasons we all know well) we have to be
> thoughtfully selective in who funds us if we still must think, voice
> and act our way to our stated goals.

Well said.

And depending on what those goals are and what the circumstances are, it
can turn out that on the path towards the goals some difficult decisions
may sometimes need to be made, including decisions in regard to which
maybe others would reasonably have made a different, more cautious call.

In my view, it is especially in those situations that transparency in
honestly disclosing such more problematic choices is particularly
valuable and trust-inspiring.

Greetings,
Norbert

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From meier-hahn at hiig.de  Thu Jun  4 06:33:09 2015
From: meier-hahn at hiig.de (Uta Meier-Hahn)
Date: Thu, 4 Jun 2015 12:33:09 +0200
Subject: [governance] New research paper "Internet censorship in Turkey"
Message-ID: <CA16B8F5-6B88-441A-9269-92A1223A223C@hiig.de>

Dear all,

This Sunday, the Turkish voters will choose a new Parliament. Just in time, the following article went online at http://policyreview.info:

Internet censorship in Turkey
by Mustafa Akgül, Melih Kırlıdoğ

Turkey passed an internet censorship law in 2007 with the declared objective of protecting families and minors. Since its introduction, the European Court of Human Rights has ruled that this law is against the European Convention on Human Rights. This article provides an overview of internet censorship and its social background in Turkey.

http://policyreview.info/articles/analysis/internet-censorship-turkey

Best,
Uta
Academic Editor


	Uta Meier-Hahn | Doctoral Researcher
Alexander von Humboldt Institut für Internet und Gesellschaft
Oberwallstr. 9 · D - 10117 Berlin
T +49 30 20 93-3490 · F +49 30 20 93-3435 · www.hiig.de · 	
Gesellschaftssitz Berlin | Amtsgericht Berlin Charlottenburg | HRB 140911B
USt-ID DE 27/601/54619 | Geschäftsführung: Prof. Dr. Jeanette Hofmann · Prof. Dr. Dr. Ingolf
Pernice · Prof. Dr. Dr. Thomas Schildhauer · Prof. Dr. Wolfgang Schulz · Dr. Karina Preiß

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From analia.aspis at gmail.com  Thu Jun  4 14:00:23 2015
From: analia.aspis at gmail.com (Analia Aspis)
Date: Thu, 4 Jun 2015 15:00:23 -0300
Subject: [governance] Declaration of the Committee of Ministers on ICANN,
 human rights and the rule of law
Message-ID: <CABi6_T-M-u+9FoqE6v68tZ_023qmY2ZYPbJxafBkHCVB5NFinA@mail.gmail.com>

TBS


*Declaration of the Committee of Ministers on ICANN, human rights and the
rule of law*
(Adopted by the Committee of Ministers on 3 June 201* at the 1229th meeting
of the Ministers’ Deputies)*

https://wcd.coe.int/ViewDoc.jsp?Ref=Decl%2803.06.2015%292&Language=lanEnglish&Ver=original&BackColorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383%3A

Best,
Analía Aspis
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From parminder at itforchange.net  Fri Jun  5 06:18:22 2015
From: parminder at itforchange.net (parminder)
Date: Fri, 05 Jun 2015 15:48:22 +0530
Subject: [governance] [bestbits] Civil society transparency
In-Reply-To: <685563FB-947F-4110-8B81-3872514B494C@eff.org>
References: <55617E51.5010901@itforchange.net> <CF50E28585184AFAA4BBC8D7F48AB245@Toshiba> <5566FE8A.9010209@itforchange.net> <685563FB-947F-4110-8B81-3872514B494C@eff.org>
Message-ID: <5571776E.3070805@itforchange.net>



On Friday 29 May 2015 07:11 AM, Jeremy Malcolm wrote:
> Replying just to the IGC list in respect of the suggestion that the
> IGC could host this McCarthy Committee on civil society funding and
> transparency, I doubt that there is any consensus that it should do
> this, and the IGC cannot act in its absence.
>
> I for one cannot imagine a scenario in which this would not do much
> more harm than good. There had already been much negative fallout from
> JNC members interrogating others on this list and the Best Bits lists
> by about their funding and demanding they take particular
> accountability and transparency measures. We could not withstand
> another such inquisition without a foundation of mutual trust and
> respect, which frankly will take much time to rebuild, beginning with
> an adjustment in attitude from the inquisitioners.

Jeremy

I made a straight forward proposal for a simplest possible, voluntary,
transparency initiative for the civil society groups involved in the IG
area. I also pointed out that because of both (1) the even higher stakes
involved in the multi-stakeholder governance structures, and (2) the
highly contested (and invested) geo politics of the area, such an
initiative is especially important in this area. I also pointed that the
NetMundial statement as well as the UN report on IGF improvements
carries language which strongly points towards need for such transparency.

I further clearly proposed that some group(s) that have the confidence
of everyone in this area can manage the initiative. I, IT for Change or
JNC have no interest in managing it. I further volunteered to personally
help raise resources for it, that can be used by whichever entity we
collectively decide should anchor this project.

Further, I said that we can discuss different possible approaches to
such a voluntary transparency initiative - I suggested the EU's
transparency register as a model, Ian said we could explore alternative
possibilities ( I request him to elaborate but havent heard back), Becky
pointed to some resources and templates, which I am happy to go with,
although they are more complex than a simple 'interests/ objectives /
funding sources' kind of voluntary disclosure like the cited EU register
calls for, you yourselves cited a document about which too I expressed
openness to possibly treat as a basis for our further discussion...

Meanwhile Luca Belli published this excellent paper on
multistakeholderism
<http://policyreview.info/articles/analysis/heterostakeholder-cooperation-sustainable-internet-policymaking>
( I greatly encourage everyone to read it ) which also presents a basic
schema of declarations of interests and funding for actors involved in
IG space. The leads provided by this paper is one way we can take this
discussion and the proposed initiative forward.

However, instead of engaging on any of these lines, you continue to call
the proposal names (McCarthy-ism) and take the ad hominem line of
attacking the proposer rather than engage with the proposal.

(BTW, I do consider it  - excuse the expression - rather shameful for
the co-convenor of a coalition to openly 'admit' that the basic problem
that is considered to have dogged the coalition - roughly, a sort of
ongoing conflict between two sides or groups, which I think is political
- has really been about one side seeking funds related transparency from
the office bearers of the coalition. Such statements belong to some
corrupt set ups in a forsaken under-developed place, not in a top global
coalition of civil society actors.   On the other hand, your assertion
that before such demands can be made, the demand-makers have to learn to
behave and so on directly invites the analogy of a dictator who refuses
to hold elections because he claims that pro-democracy protests had gone
somewhat violent in some areas. We have been hearing such things for
centuries now. But it is incredulous that a person of your skills and
social position makes such statements in this era. )

Meanwhile, I have no expectations or claims from you as a person, but a
co-convenor of the Bestbits groups I may restate my request that I will
like to have some kind of official response on my proposal - or an
alternative transparency proposal for civil society groups - from the
Bestbits management.

thanks, and best regards,

parminder

>
> -- 
> Jeremy Malcolm
> Senior Global Policy Analyst
> Electronic Frontier Foundation
> https://eff.org <https://eff.org/>
> jmalcolm at eff.org <mailto:jmalcolm at eff.org>
>
> Tel: 415.436.9333 <tel:415.436.9333> ext 161
>
> :: Defending Your Rights in the Digital World ::
>
> On May 28, 2015, at 4:39 AM, parminder <parminder at itforchange.net
> <mailto:parminder at itforchange.net>> wrote:
>
>> Thanks Ian
>>
>> Responding to the two issues you raise.
>>
>> On Monday 25 May 2015 12:27 PM, Ian Peter wrote:
>>> Hi Parminder,
>>>  
>>> Two issues in response to your suggestion.
>>>  
>>> Firstly, the suggestion that CSCG do this. CSCG consists of five
>>> people who are pretty busy co-ordinating coalitions of CS
>>> organisations (BB, JNC, IGC, APC, NCSG) and myself as an independent
>>> chair. The role of CSCG is to ensure a co-ordinated civil society
>>> response and conduit when it comes to making civil society
>>> appointments to outside organisations.  It has no staff, no funding,
>>> not even a formal charter.  In order to address some of the issues
>>> it faces I have suggested from time to time  that the membership be
>>> expanded to include say 3 more respected civil society people who
>>> are not formal representatives of coalitions of CS organisations.
>>> The last time I suggested this it was met with some strongly worded
>>> negative responses from JNC and I have not heard of any change of
>>> position on this. So for these reasons I don’t think CSCG is the
>>> right organisation to take on this task. Perhaps IGC?
>>
>> I suggested CSCG bec it has reps from major CS networks and so there
>> was a common ownership over what should be a commonly owned and
>> directed initiative so that there is scope of bias, and appropriate
>> avenues of recourse exist. I still think CSCG the right body for it,
>> but IGC would do as well. As for resources, let me make this blind
>> offer, I will try and raise resources for one person devoting her
>> half/ quarter time, who can be housed in a reputed org with a neutral
>> image, for this purpose. More resources are needed initially for
>> setting it up, but once set up it wont require much. I still do not
>> know from where id seek resources but I am confident that with so
>> much funds coming into the IG space someone somewhere would give a
>> few thousand dollars for overall transparency and accountability in
>> the sector. That should address and settle the resources argument in
>> terms of my proposal.
>>  
>>>  
>>> Secondly, I wonder how it would work in CS which has so many people
>>> who are basically acting as individuals rather than representatives
>>> of organisations. Many if not most of us also have non CS
>>> affiliations (eg membership of ISOC, business or governmental
>>> employees if we are cs volunteers, academic postings etc) so the
>>> “pure” CS rep is probably a bit hard to find. I am not sure what we
>>> would gain by having a register of all our multiple affiliations
>>> which would need regular updating to be of any use.  I think we need
>>> to ensure our major coalitions (BB, JNC, IGC, APC, NCSG) act
>>> transparently, and by and large I think they do. But I am not sure
>>> of the value of extending this to what is probably tens of thousands
>>> of members or organisations affiliated with these larger groups.
>>
>> Almost all CS transparency and accountability initiatives are
>> focussed on organisations and not individuals, bec of the obvious
>> reasons that the former have a greater role and impact. One  may not
>> need such processes for individuals, other than perhaps when any
>> nominations or appointments are being on behalf of civil society , in
>> which case anyone would agree  that some basic declarations should in
>> any case be necessary, and such simple and basic decelerations alone
>> are what my proposed initiative asks for. 
>>
>>>  
>>> Over to others to discuss. I am not opposed to the suggestion that
>>> something be done in this area,  but I think we need to refine any
>>> such idea somewhat,
>>
>> Please give suggestions.
>>
>>> and if the aim is somehow to enhance CS credibility and transparency
>>> in this space, perhaps we should also discuss what other measures
>>> might also assist this.
>>
>> And for this as well.
>>
>> Thanks again. parminder
>>>  
>>> Ian Peter
>>>  
>>> *From:* parminder <mailto:parminder at itforchange.net>
>>> *Sent:* Sunday, May 24, 2015 3:31 PM
>>> *To:* Ian Peter <mailto:ian.peter at ianpeter.com> ;
>>> governance at lists.igcaucus.org <mailto:governance at lists.igcaucus.org>
>>> ; BestBitsList <mailto:bestbits at lists.bestbits.net> ;
>>> mailto:forum at justnetcoalition.org ; A general information sharing
>>> space for the APC Community. <mailto:apc.forum at lists.apc.org>
>>> *Subject:* [governance] Civil society transparency
>>>  
>>> Ian, and reps of civil society networks on the Civil Society
>>> Coordination Group (CSCG) ,
>>>
>>> I propose that CSCG sets up a civil society transparency project,
>>> somewhat on the lines of the EU Transparency Register, pl see
>>> http://ec.europa.eu/transparencyregister/public/homePage.do .
>>>
>>> It should in fact go beyond the EU initiative which is a general one
>>> for all lobbying groups, whereas we here are concerned with civil
>>> society which should set the highest example of transparency and
>>> accountability. The 'register' can have self filled information on
>>> objectives of an organisation, principles followed by it, if any,
>>> its funding, partners, and so on....
>>>
>>> This is at present just my proposal, but I hope one or more civil
>>> society networks in the IG space can own it and push it... CSCG
>>> would be well placed to run this project as a neutral space so that
>>> there is no accusation of bias that any such initiative is being
>>> employed for partisan purposes. In any case, a simple initiative for
>>> openness, transparency and accountability can hardly be partisan.
>>>
>>> The register can have optional higher level features whereby a
>>> group/ org can declare its means of public accountability, whether
>>> and how its internal governance is done, how matters can be taken by
>>> with their oversight bodies, like board etc, and whether they have
>>> any means whereby they respond to public question on their work, etc.
>>>
>>> For such genuine cases where such transparency can harm an
>>> organisations work, or security, such organisations, and only such
>>> organisations, can be exempted employing a clear process and set of
>>> criteria.
>>>
>>> Remember, both the UN report on improvements to the IGF and the
>>> NetMundial Statement highlight the issue of transparency. I also
>>> recently read in these lists how we should make bridges with the
>>> OpenGov movement which is almost wholly about this one thing. Time
>>> we begin practising what we preach.
>>>
>>> I look forward to hear responses to this proposal..
>>>
>>> parminder
>>>
>>> ------------------------------------------------------------------------
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>>>
>>>
>>> ____________________________________________________________
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>>> To unsubscribe or change your settings, visit:
>>>      http://lists.bestbits.net/wws/info/bestbits
>>
>> ____________________________________________________________
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>> To unsubscribe or change your settings, visit:
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>
>
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From fulvio.frati at unimi.it  Fri Jun  5 10:18:35 2015
From: fulvio.frati at unimi.it (Fulvio Frati)
Date: Fri, 05 Jun 2015 16:18:35 +0200
Subject: [governance] [CFP] 5th Int. Symposium on Cloud Computing, Trusted
 Computing and Secure Virtual Infrastructures -- Cloud and Trusted
 Computing (C&TC 2015)
Message-ID: <01de01d09f9a$823b9ff0$86b2dfd0$@unimi.it>

[Apologies if you receive multiple copies of this message]



==========================================================================

CALL FOR PAPERS

5th International Symposium on Cloud Computing, Trusted Computing and

Secure Virtual Infrastructures -- Cloud and Trusted Computing (C&TC 2015)

October 26-28, 2015 -- Rhodes, Greece

http://www.onthemove-conferences.org/index.php/cloud-trust-15
==========================================================================



===========

Description

===========



Current and future software needs to remain focused towards the development
and deployment of large and complex intelligent and networked information
systems, required for internet-based and intranet-based systems in
organizations. Today software covers a very wide range of application
domains as well as technology and research issues. This has found
realization through Cloud Computing. Vital element in such networked
information systems are the notions of trust, security, privacy and risk
management.



Cloud and Trusted Computing (C&TC 2015) is the 5th International Symposium
on Cloud Computing, Trusted Computing and Secure Virtual Infrastructures,
organized as a component conference of the OnTheMove Federated Conferences &
Workshops. C&TC 2015 will be held in Rhodes, Greece.



The conference solicits submissions from both academia and industry
presenting novel research in the context of Cloud Computing, presenting
theoretical and practical approaches to cloud trust, security, privacy and
risk management. The conference will provide a special focus on the
intersection between cloud and trust bringing together experts from the two
communities to discuss on the vital issues of trust, security, privacy and
risk management in Cloud Computing. Potential contributions could cover new
approaches, methodologies, protocols, tools, or verification and validation
techniques. We also welcome review papers that analyze critically the
current status of trust, security, privacy and risk management in the cloud.
Papers from practitioners who encounter trust, security, privacy and risk
management problems and seek understanding are also welcome.



Topics of interests of C&TC 2015 include, but are not limited to:



TRUST, SECURITY, PRIVACY AND RISK MANAGEMENT IN CLOUD COMPUTING

- Assurance Techniques

- Access Control, Authorization, and Authentication

- Cloud Computing with Autonomic and Trusted Environment

- Cryptographic Algorithms and Protocols

- Cyber Attack, Crime and Cyber War

- DRM, Watermarking Technology, IP Protection

- Emergency and Security Systems

- End-to-end security over complex cloud supply chain

- Forensics

- Human Interaction with Trusted and Autonomic Computing Systems

- Identity and Trust Management

- Multimedia Security Issues over Mobile and Wireless Clouds

- Network Security

- Networks of Trust, Clouds of Trust

- Privacy, Anonymity

- Privilege Management Infrastructure

- Reliable Computing and Trusted Computing

- Risk evaluation and Management

- Security, Dependability and Autonomic Issues in Ubiquitous Computing

- Security Models and Quantifications

- Self-protection and Intrusion-detection in Security

- Trust Evaluation and Prediction in Service-Oriented Environments

- Trust, Security, Privacy and Confidentiality

- Trusted Computing in virtualized environments

- Trusted P2P, Web Service, SoA, SaaS, EaaS, PaaS, XaaS

- Virus Detections and Anti-virus Techniques/Software



CLOUD DATA MANAGEMENT

- Algorithms and Computations on Encrypted Data

- Big Data, Frameworks and Systems for Parallel and Distributed Computing

- Database as a Service, Multi-tenancy, Data management and analytics as a
service

- Data Science and Scalable Machine Learning

- Elasticity and Scalability for Cloud Data Management Systems

- High Availability and Reliability

- Interoperability between Clouds

- New Protocols, Interfaces and Data Models for Cloud Databases

- Resource and Workload Management in Cloud Databases

- Service Level Agreements and Contracts

- Transactional Models for Cloud Databases, Consistency and Replication

- Virtualization and Cloud databases, Storage Structures and Indexing



CLOUD COMPUTING INFRASTRUCTURES AND ARCHITECTURES

- Autonomic Computing Theory, Models, Architectures and Communications

- Cloud Resource provisioning with QoS Guarantees

- Cloud Operation and Resource Management

- Cloud Performance Modeling and Benchmarks

- Datacenter Architecture and Management

- Formal methods and Tools for Cloud computing

- Infrastructures for Social Computing and Networking

- Software Architectures and Design for Trusted Emerging Systems

- Virtualized Computing Infrastructures



CLOUD COMPUTING APPLICATIONS

- Cloud Business Applications and Case Studies

- Clouds and Social Media, Network and Link Analysis

- Large Scale Cloud Applications, Reality Mining

- Mobile Cloud Services

- New Parallel / Concurrent Programming Models for Cloud Computing

- Pervasive / Ubiquitous Computing in the Cloud

- Reliability, Fault Tolerance, Quality-of-Service

- Service Level Agreements and Performance Measurement

- Service-Oriented Architectures, RESTful Services in Cloud Environments



===============

Important Dates

===============



- Abstract Submission Deadline: June 30, 2015

- Paper Submission Deadline: July 6, 2015

- Acceptance Notification: August 15, 2015

- Camera Ready Due: September 1, 2015

- Author Registration Due: September 1, 2015



================

Paper Submission

================



FULL PAPERS

Full paper submissions to Cloud and Trusted Computing 2015 (C&TC 2015) must
present original, highly innovative, prospective and forward-looking
research in one or more of the themes given above. Full papers must break
new ground, present new insight, deliver a significant research contribution
and provide validated support for its results and conclusions. Successful
submissions typically represent a major advance for the field of cloud
computing, referencing and relating the contribution to existing research
work, giving a comprehensive, detailed and understandable explanation of a
system, study, theory or methodology, and support the findings with a
compelling evaluation and/or validation. Each paper must be submitted as a
single PDF file in Springer Lecture Notes in Computer Science format (not
longer than 18 pages in length). Accepted regular papers will be included in
the printed conference main proceedings and presented in the paper sessions.
Submissions to C&TC 2015 must not be under review by any other conference or
publication at any time during the C&TC review cycle, and must not be
previously published or accepted for publication elsewhere.



NOTES

Notes (not longer than 6 pages in length) must report new results and
provide support for the results, as a novel and valuable contribution to the
field – just like full papers. Notes are intended for succinct work that is
nonetheless in a mature state ready for inclusion in archival proceedings.
Notes will be held to the same standard of scientific quality as full
papers, albeit for a shorter presentation, and must still state how they fit
with respect to related work, and provide a compelling explanation and
validation. Notes must be submitted as single PDF file in Springer Lecture
Notes in Computer Science format. Accepted notes will be published in the
conference main proceedings and will be presented in the paper sessions of
the conference.



A selection of the best papers from Cloud and Trusted Computing 2015 will be
published in a special issue of The International Journal of Computer
Systems Science and Engineering.

Submissions are to be made to the submission web site available at
http://www.onthemove-conferences.org/index.php/submitpaper



PAPER FORMATTING AND PRESENTING

The paper and notes submission site giving all the relevant submission
details is located at:
http://www.onthemove-conferences.org/index.php/authors-kit/camconfpapers.
Failure to comply with the formatting instructions for submitted papers or
notes will lead to the outright rejection of the paper without review.
Failure to commit to presentation at the conference automatically excludes a
paper from the proceedings.



===============

Program Chairs

===============



- Claudio Agostino Ardagna, Universita' degli studi di Milano, Italy

- Meiko Jensen, Independent Centre for Privacy Protection
Schleswig-Holstein, Germany



==================

Advisory Committee

==================



- Ernesto Damiani, Universita' degli studi di Milano, Italy

- Salim Hariri, The University of Arizona, USA

- Robert Meersman, Vrije Universiteit Brussel, Belgium

- Siani Pearson, HP Labs, UK



=================

Program Committee

=================



- Marco Anisetti, Universita' degli Studi di Milano, Italy

- Vijay Atluri, Rutgers University, USA

- N. Balakrishnan, Indian Institute of Science, India

- Endre Bangerter, Bern University of Applied Sciences, Switzerland

- Michele Bezzi, SAP, France

- Bud Brugger, Fraunhofer IAO, Germany

- Marco Casassa Mont, HP Labs, UK

- David Chadwick, University of Kent, UK

- Henry Chan, The Hong Kong Polytechnic University

- Alfredo Cuzzocrea, University of Calabria, Italy

- Ernesto Damiani, Università degli Studi di Milano, Italy

- Stefan Dessloch, University of Kaiserslautern, Germany

- Francesco Di Cerbo, SAP Labs, France

- Scharam Dustdar, Technical University of Vienna, Austria

- Stefanos Gritzalis, University of the Aegean, Greece

- Nils Gruschka, FH Kiel, Germany

- Marit Hansen, Unabhangiges Landeszentrum fur Datenschutz
Schleswig-Holstein, Kiel, Germany

- Ching Hsien Hsu, Chung Hua University, Taiwan

- Patrick Hung, University of Ontario, Canada

- Martin Jaatun, SINTEF ICT, Norway

- Florian Kerschbaum, SAP, Germany

- Ryan Ko, University of Waikato, New Zealand

- Zhiqiang Lin, UT Dallas, USA

- Luigi Lo Iacono, Cologne University of Applied Sciences, Germany

- Gregorio Martinez, University of Murcia, Spain

- Hadi Otrok, Khalifa University, Abu Dhabi, UAE

- Smriti R. Ramakrishnan, Oracle Corporation, USA

- Damien Sauveron, Universite' de Limoges, France

- Jorg Schwenk, Ruhr-Universität Bochum, Germany

- Russell Sears, Pure Storage, USA

- Bhavani Thuraisingham, UT Dallas, USA

- Luca Vigano', King's College London, UK



===============

Publicity Chair

===============



- Fulvio Frati, Universita' degli Studi di Milano, Italy



More information available at
http://www.onthemove-conferences.org/index.php/cloud-trust-15






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From fulvio.frati at unimi.it  Fri Jun  5 10:48:20 2015
From: fulvio.frati at unimi.it (Fulvio Frati)
Date: Fri, 05 Jun 2015 16:48:20 +0200
Subject: [governance] [Deadline extended: 15 July 2015] 11th International
 Conference on Innovations in Information Technology (IIT'15)
Message-ID: <02df01d09f9e$aa367850$fea368f0$@unimi.it>

Due to numerous requests, and end-of-semester busy period for authors, we
are pleased to inform you that the papers submission deadline has been
extended.  Kindly find the CFP below.

Apologies if you receive multiple copies of this CFP.

Please feel free to distribute the IIT'15 CFP to your colleagues, students
and networks.

 

****************************************************************************
************

CALL FOR PAPERS

 

2015 11th International Conference on Innovations in Information Technology
(IIT'15)

Special Theme: Smart Living Cities, Big Data and Sustainable Development 

November 01-03, 2015, Dubai, UAE

 

****************************************************************************
************

 

------------IMPORTANT: Submission Deadline Extended-----

More information is available at:

http://www.it-innovations.ae/ 

 

IEEE Technical Sponsorship by IEEE Computer Society. All papers will be
published by IEEE and included in IEEE Xplore digital library, and all other
global indices.

 

News: Extended papers will be invited for possible publication in a Springer
Book, indexed in Springer global indices, one of the largest databases in
the world and Scopus including citations: approved.

 

 

BEST PAPER AWARDS

Two best papers of the conference will be selected by the program committee.
One will be awarded the "Best Research Paper Award" and another one will be
awarded the "Best Application Paper Award" (for application-oriented
submissions). 

 

IMPORTANT DATES

Papers and Student Posters Submission           15 July 2015 (extended)

Submission of Tutorials                                            15 July
2015 (extended)

Notification for Tutorials                                          30
August 2015

Notification for Papers and Student Posters   from 9 September 2015

Final Camera-Ready                                                   29
September 2015

 

SCOPE

 

The International Conference on Innovations in Information Technology 2015
(IIT'15) is a forum that addresses the latest ideas in information
technology (IT). The theme of IIT'15 is Smart Cities and all of the software
and hardware technologies that are required to provide better living
conditions in the cities of tomorrow. This theme will be reflected by a
number of tracks which focus on different aspects of related technologies
such as Big Data, cloud computing, collaborative platforms, communication
infrastructures, smart health, smart learning, social participation,
sustainable development and energy management. All of those themes will be
brought together by unifying invited high quality keynotes and panels.  

 

CONFERENCE TRACKS/THEMES

Topics of interest include but not limited to the following major
tracks/themes. Research papers are invited but not limited to the following
areas:

 

Track A: Innovations in Information and Communication Infrastructures

- Advanced Network Technologies, Heterogeneous networks, and Real Time
Networks

- Quality of Services

- Next Generation of Mobile Networks

- Ad-Hoc and Sensor Networks, Wireless Networks

- Distributed Systems, Grid Computing

- Smart Grid

- Mobility Management and Mobile computing

- Information and Cyber Security for Smart Living Spaces

Track B: Internet of Things (IoT)

- ICT Architecture for IoT

- System design, Modeling and Simulation

- Grid Computing , and Cloud Computing

- Real-Time Systems for IoT, Autonomic Systems

- Security, Privacy, Trust and Reliability

- Software Design and Development of IoT-Based Applications

- Intelligent Data Processing

- Smart Appliances & Wearable Computing Devices

Track C: Smart Collaborative Platforms and Logistics

- Agile Information Systems

- Design, Modeling and Simulation of Collaborative Applications

- Practice and Experiences of Collaborative Applications

- Risk Management, Smart Business

- Middleware Support for Collaboration

- Real-Time Information Sharing and Interaction

- AI and Decision-Support Systems

Track D: Big Data and Smart Applications

- Big Data Analytics and Algorithms

- High Performance Computing and Real-Time of Big Data Processing

- Big Data Storage and Distribution

- Data Mining

- Grid Computing and Cloud Computing

- Middleware for Smart Applications

- e-Health, Smart Learning, Intelligent Processing and Intelligent
Applications

Track E: Cyber-Physical Energy Systems

- Theory, Tools and Applications

- System Design, Modeling and Simulation

- Testbeds and Experiences

- Algorithms for Energy Efficiency

- Middleware

- Design and Development of Protocols for Sustainable energy

- Design and Development of Secure and Resilient Systems

 

SUBMISSIONS

IIT'15 seeks original manuscripts (of up to 6 pages maximum in IEEE
two-column format) describing research in all aspects of IT that contribute
to the conference themes. Papers submitted to the conference should present
original work that has not been previously published or is currently under
review by other conferences or journals.  All papers will be peer reviewed,
and authors of accepted papers are expected to present their work at the
conference. Submissions of tutorial, special session, and workshop proposals
are also welcome. The submission guidelines are available at

http://www.it-innovations.ae/iit2015/Authors.html. 

Paper submission should be done through http://www.edas.info  

 

KEYNOTE SPEAKERS

 

Chair Professor Christian Wagner

Smart Cities and Social Media

City University Hong Kong Associate Provost for Quality Assurance

 

Dr. Babu Narayanan

Smart Cities and The Future of Energy 

General Electric (GE) Global Research, Bangalore, India 

Senior Principal Scientist

 

Dr. Michael P. Perrone

Smart Cities and Data Centric Systems 

IBM T.J. Watson Research Center, NY, USA 

Program Director Data Centric Systems Client Partnerships

 

Professor Elizabeth Chang

Smart Cities and Intelligent Logistics Ecosystem 

University of New South Wales (UNSW) 

Australia Canberra Fellow and IEEE Fellow

 

We look forward to welcoming you in Dubai at IIT'15 in November 2015.

 

On behalf of the IIT'15 Organizing Committee

 

 

 


****************
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From willi.uebelherr at riseup.net  Fri Jun  5 17:20:56 2015
From: willi.uebelherr at riseup.net (willi uebelherr)
Date: Fri, 05 Jun 2015 18:20:56 -0300
Subject: [governance] Civil society transparency
In-Reply-To: <5571776E.3070805@itforchange.net>
References: <55617E51.5010901@itforchange.net> <CF50E28585184AFAA4BBC8D7F48AB245@Toshiba> <5566FE8A.9010209@itforchange.net> <685563FB-947F-4110-8B81-3872514B494C@eff.org> <5571776E.3070805@itforchange.net>
Message-ID: <557212B8.90804@riseup.net>


Dear friends,

we have read many things in this thread. And sometimes, i ask me, where 
lives this people?

Dear parminder, you speak about EU and transparency in a direct 
relation?. Do you know, what is the EU? Do you know, how it works? Do 
you know, how it is inside structured?

In the german language, we have a small sentence. "den Bock zum Gaertner 
machen" (make the goat the gardener). Or you can use: To fight against 
the fire in a forest with gasoline.

In the text from Luca Belli i found a reference to a book, that Wolfgang 
Kleinwaechter have edited 2007. "The Power of Ideas: Internet Governance 
in a Global Multi-Stakeholder Environment ". Now i got the pdf-file. And 
i see, 8 years before, the discussion about "Internet Governance" was 
the same. And i ask me: In all this years of big discussions, many 
meetings in 5 star environments, what is the result?

Only the resignation, frustration and the loss of orientation?

many greetings, willi
Buenos Aires, Argentina


Am 05/06/2015 um 07:18 schrieb parminder:
> On Friday 29 May 2015 07:11 AM, Jeremy Malcolm wrote:
>> Replying just to the IGC list in respect of the suggestion that the
>> IGC could host this McCarthy Committee on civil society funding and
>> transparency, I doubt that there is any consensus that it should do
>> this, and the IGC cannot act in its absence.
>>
>> I for one cannot imagine a scenario in which this would not do much
>> more harm than good. There had already been much negative fallout from
>> JNC members interrogating others on this list and the Best Bits lists
>> by about their funding and demanding they take particular
>> accountability and transparency measures. We could not withstand
>> another such inquisition without a foundation of mutual trust and
>> respect, which frankly will take much time to rebuild, beginning with
>> an adjustment in attitude from the inquisitioners.
>
> Jeremy
>
> I made a straight forward proposal for a simplest possible, voluntary,
> transparency initiative for the civil society groups involved in the IG
> area. I also pointed out that because of both (1) the even higher stakes
> involved in the multi-stakeholder governance structures, and (2) the
> highly contested (and invested) geo politics of the area, such an
> initiative is especially important in this area. I also pointed that the
> NetMundial statement as well as the UN report on IGF improvements
> carries language which strongly points towards need for such transparency.
>
> I further clearly proposed that some group(s) that have the confidence
> of everyone in this area can manage the initiative. I, IT for Change or
> JNC have no interest in managing it. I further volunteered to personally
> help raise resources for it, that can be used by whichever entity we
> collectively decide should anchor this project.
>
> Further, I said that we can discuss different possible approaches to
> such a voluntary transparency initiative - I suggested the EU's
> transparency register as a model, Ian said we could explore alternative
> possibilities ( I request him to elaborate but havent heard back), Becky
> pointed to some resources and templates, which I am happy to go with,
> although they are more complex than a simple 'interests/ objectives /
> funding sources' kind of voluntary disclosure like the cited EU register
> calls for, you yourselves cited a document about which too I expressed
> openness to possibly treat as a basis for our further discussion...
>
> Meanwhile Luca Belli published this excellent paper on
> multistakeholderism
> <http://policyreview.info/articles/analysis/heterostakeholder-cooperation-sustainable-internet-policymaking>
> ( I greatly encourage everyone to read it ) which also presents a basic
> schema of declarations of interests and funding for actors involved in
> IG space. The leads provided by this paper is one way we can take this
> discussion and the proposed initiative forward.
>
> However, instead of engaging on any of these lines, you continue to call
> the proposal names (McCarthy-ism) and take the ad hominem line of
> attacking the proposer rather than engage with the proposal.
>
> (BTW, I do consider it  - excuse the expression - rather shameful for
> the co-convenor of a coalition to openly 'admit' that the basic problem
> that is considered to have dogged the coalition - roughly, a sort of
> ongoing conflict between two sides or groups, which I think is political
> - has really been about one side seeking funds related transparency from
> the office bearers of the coalition. Such statements belong to some
> corrupt set ups in a forsaken under-developed place, not in a top global
> coalition of civil society actors.   On the other hand, your assertion
> that before such demands can be made, the demand-makers have to learn to
> behave and so on directly invites the analogy of a dictator who refuses
> to hold elections because he claims that pro-democracy protests had gone
> somewhat violent in some areas. We have been hearing such things for
> centuries now. But it is incredulous that a person of your skills and
> social position makes such statements in this era. )
>
> Meanwhile, I have no expectations or claims from you as a person, but a
> co-convenor of the Bestbits groups I may restate my request that I will
> like to have some kind of official response on my proposal - or an
> alternative transparency proposal for civil society groups - from the
> Bestbits management.
>
> thanks, and best regards,
>
> parminder



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From willi.uebelherr at riseup.net  Fri Jun  5 22:54:21 2015
From: willi.uebelherr at riseup.net (willi uebelherr)
Date: Fri, 05 Jun 2015 23:54:21 -0300
Subject: [governance] Internet governance needs to develop ambitions
Message-ID: <557260DD.6040807@riseup.net>


Dear friends,

on my working for a text "decentralisation of the DNS system" i have 
found this text from Amelia Andersdotter from the Pirate Party in 
Sweden. For all people with this dreams: We are not alone.

Internet governance needs to develop ambitions
30 Apr 2015 by Amelia Andersdotter
http://policyreview.info/articles/news/internet-governance-needs-develop-ambitions/362

many greetings, willi
Buenos Aires, Argentina


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From ian.peter at ianpeter.com  Fri Jun  5 23:19:15 2015
From: ian.peter at ianpeter.com (Ian Peter)
Date: Sat, 6 Jun 2015 13:19:15 +1000
Subject: [governance] #UnfollowMe
Message-ID: <ED3883BD33C44D9EABB92D67DB451E15@Toshiba>

Worthy of support and widespread dissemination. Nice to see Amnesty International supporting this cause. 

Thank you for signing our #UnfollowMe petition to end indiscriminate mass surveillance. We’ll deliver your signatures to leaders in the months ahead, and use your voices to demand urgent action.

Together, we can stop governments hoovering up all our personal data – our emails, internet searches, voice calls, webcam images and so much more. We can pressure leaders to ensure surveillance of communications is the exception, not the rule. It should only happen when it’s targeted, based on sufficient evidence of wrongdoing, and authorised by a strictly independent authority, such as a judge.

Please share this petition with your friends using the link below, and tweet your support using the hashtag #UnfollowMe.

https://www.amnesty.org/en/action-unfollowme-tell-governments-to-ban-mass-surveillance/ 

Thank you again for taking action – change only happens when people like you take a stand.
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From gurstein at gmail.com  Sat Jun  6 02:22:53 2015
From: gurstein at gmail.com (Michael Gurstein)
Date: Sat, 6 Jun 2015 14:22:53 +0800
Subject: [governance] #UnfollowMe
In-Reply-To: <ED3883BD33C44D9EABB92D67DB451E15@Toshiba>
References: <ED3883BD33C44D9EABB92D67DB451E15@Toshiba>
Message-ID: <001601d0a021$931f2080$b95d6180$@gmail.com>

Yes a good initiative but given the associated developments in our respective countries perhaps a two pronged initiative – one global and a second local/national -- would have been more useful.  There are several parallel initiatives currently underway in Canada in response to the execrable Harper governments hyper-execrable Bill C: 51 and it would be nice if there was international reinforcement support for these alongside this global initiative.

 

M

 

From: governance-request at lists.igcaucus.org [mailto:governance-request at lists.igcaucus.org] On Behalf Of Ian Peter
Sent: June 6, 2015 11:19 AM
To: governance at lists.igcaucus.org
Subject: [governance] #UnfollowMe

 

Worthy of support and widespread dissemination. Nice to see Amnesty International supporting this cause. 

 

Thank you for signing our #UnfollowMe petition to end indiscriminate mass surveillance. We’ll deliver your signatures to leaders in the months ahead, and use your voices to demand urgent action.

Together, we can stop governments hoovering up all our personal data – our emails, internet searches, voice calls, webcam images and so much more. We can pressure leaders to ensure surveillance of communications is the exception, not the rule. It should only happen when it’s targeted, based on sufficient evidence of wrongdoing, and authorised by a strictly independent authority, such as a judge.

Please share this petition with your friends using the link below, and tweet your support using the hashtag #UnfollowMe.

https://www.amnesty.org/en/action-unfollowme-tell-governments-to-ban-mass-surveillance/ 

Thank you again for taking action – change only happens when people like you take a stand.

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From ian.peter at ianpeter.com  Sat Jun  6 02:59:58 2015
From: ian.peter at ianpeter.com (Ian Peter)
Date: Sat, 6 Jun 2015 16:59:58 +1000
Subject: [governance] #UnfollowMe
In-Reply-To: <001601d0a021$931f2080$b95d6180$@gmail.com>
References: <ED3883BD33C44D9EABB92D67DB451E15@Toshiba> <001601d0a021$931f2080$b95d6180$@gmail.com>
Message-ID: <FBF005AB4DDF4D7587A93C951DDFF104@Toshiba>

Yes I agree – but despite the headlines around it this one claims to “ call on the USA and UK – as well as their close allies Australia, Canada and New Zealand – to end indiscriminate mass surveillance today”. So it’s not just USA, but the 5 Eyes. 

From: Michael Gurstein 
Sent: Saturday, June 06, 2015 4:22 PM
To: governance at lists.igcaucus.org ; 'Ian Peter' 
Subject: RE: [governance] #UnfollowMe

Yes a good initiative but given the associated developments in our respective countries perhaps a two pronged initiative – one global and a second local/national -- would have been more useful.  There are several parallel initiatives currently underway in Canada in response to the execrable Harper governments hyper-execrable Bill C: 51 and it would be nice if there was international reinforcement support for these alongside this global initiative.

 

M

 

From: governance-request at lists.igcaucus.org [mailto:governance-request at lists.igcaucus.org] On Behalf Of Ian Peter
Sent: June 6, 2015 11:19 AM
To: governance at lists.igcaucus.org
Subject: [governance] #UnfollowMe

 

Worthy of support and widespread dissemination. Nice to see Amnesty International supporting this cause. 

 

Thank you for signing our #UnfollowMe petition to end indiscriminate mass surveillance. We’ll deliver your signatures to leaders in the months ahead, and use your voices to demand urgent action.

Together, we can stop governments hoovering up all our personal data – our emails, internet searches, voice calls, webcam images and so much more. We can pressure leaders to ensure surveillance of communications is the exception, not the rule. It should only happen when it’s targeted, based on sufficient evidence of wrongdoing, and authorised by a strictly independent authority, such as a judge.

Please share this petition with your friends using the link below, and tweet your support using the hashtag #UnfollowMe.

https://www.amnesty.org/en/action-unfollowme-tell-governments-to-ban-mass-surveillance/ 

Thank you again for taking action – change only happens when people like you take a stand.
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From tisrael at cippic.ca  Sat Jun  6 12:17:35 2015
From: tisrael at cippic.ca (tisrael at cippic.ca)
Date: Sat, 06 Jun 2015 12:17:35 -0400
Subject: [governance] #UnfollowMe
In-Reply-To: <FBF005AB4DDF4D7587A93C951DDFF104@Toshiba>
References: <ED3883BD33C44D9EABB92D67DB451E15@Toshiba> <001601d0a021$931f2080$b95d6180$@gmail.com> <FBF005AB4DDF4D7587A93C951DDFF104@Toshiba>
Message-ID: <44a94a4a-e285-4389-aaa9-593ce7a10650@email.android.com>

Moreover, there is coordination with domestic campaigns. For example amnesty / unfollowme has been fairly active in Canada on C 51.

Best,
Tamir


-------- Original Message --------
From: Ian Peter <ian.peter at ianpeter.com>
Sent: 6 June, 2015 2:59:58 AM EDT
To: Michael Gurstein <gurstein at gmail.com>, governance at lists.igcaucus.org
Subject: Re: [governance] #UnfollowMe

Yes I agree – but despite the headlines around it this one claims to “ call on the USA and UK – as well as their close allies Australia, Canada and New Zealand – to end indiscriminate mass surveillance today”. So it’s not just USA, but the 5 Eyes. 

From: Michael Gurstein 
Sent: Saturday, June 06, 2015 4:22 PM
To: governance at lists.igcaucus.org ; 'Ian Peter' 
Subject: RE: [governance] #UnfollowMe

Yes a good initiative but given the associated developments in our respective countries perhaps a two pronged initiative – one global and a second local/national -- would have been more useful.  There are several parallel initiatives currently underway in Canada in response to the execrable Harper governments hyper-execrable Bill C: 51 and it would be nice if there was international reinforcement support for these alongside this global initiative.

 

M

 

From: governance-request at lists.igcaucus.org [mailto:governance-request at lists.igcaucus.org] On Behalf Of Ian Peter
Sent: June 6, 2015 11:19 AM
To: governance at lists.igcaucus.org
Subject: [governance] #UnfollowMe

 

Worthy of support and widespread dissemination. Nice to see Amnesty International supporting this cause. 

 

Thank you for signing our #UnfollowMe petition to end indiscriminate mass surveillance. We’ll deliver your signatures to leaders in the months ahead, and use your voices to demand urgent action.

Together, we can stop governments hoovering up all our personal data – our emails, internet searches, voice calls, webcam images and so much more. We can pressure leaders to ensure surveillance of communications is the exception, not the rule. It should only happen when it’s targeted, based on sufficient evidence of wrongdoing, and authorised by a strictly independent authority, such as a judge.

Please share this petition with your friends using the link below, and tweet your support using the hashtag #UnfollowMe.

https://www.amnesty.org/en/action-unfollowme-tell-governments-to-ban-mass-surveillance/ 

Thank you again for taking action – change only happens when people like you take a stand.


------------------------------------------------------------------------

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From ian.peter at ianpeter.com  Sat Jun  6 18:02:32 2015
From: ian.peter at ianpeter.com (Ian Peter)
Date: Sun, 7 Jun 2015 08:02:32 +1000
Subject: [governance] Civil society transparency
In-Reply-To: <55617E51.5010901@itforchange.net>
References: <55617E51.5010901@itforchange.net>
Message-ID: <41C19523561A4A5CA29EF6368B4F5AA5@Toshiba>

Hi Parminder,

Following from the discussion, here is what I think is possible and realistic in this space.

Firstly, I think the question of transparency and disclosure of conflicts of interest is important.

However, I don’t think people need to declare interests to involve themselves in discussion here or in any of our open mailing lists, and the real concerns start to arise only when people are seeking office as civil society representatives.

Here, most of the office bearing exists in the various coalitions – APC, Best Bits, JNC, NCSG, IGC. I would urge each of these groups, when holding elections, to require candidates to register any conflicts of interest. I know Best Bits is moving to elections for its Steering Committee again soon, perhaps it could formulate some sort of basic disclosure requirement for its purposes? And I guess JNC must be moving towards holding its first elections for SC replenishment soon?  And IGC could easily add such a requirement for its candidates for co cordinator elections (presumably late this year).

But these are requirements for individual groups, and the form of such is for each group to determine. I think however that such a requirement would be a good idea.

As regards CSCG – our calls for candidates are for appointments to outside bodies, and I agree that some form of disclosure of any conflicts of interest would be a good idea. Currently it would appear that our next task would be MAG replenishment (and a small one at that), probably early next year. I will suggest to the members that we should require some sort of basic disclosure statement. But that of course is up to the members (APC, BB, JNC, NCSG, IGC) to determine.

I’m not sure we can go much further. But if some work can be done on a simple model of a form of disclosure, that would be good.

Ian Peter

From: parminder 
Sent: Sunday, May 24, 2015 5:31 PM
To: Ian Peter ; governance at lists.igcaucus.org ; BestBitsList ; mailto:forum at justnetcoalition.org ; A general information sharing space for the APC Community. 
Subject: [governance] Civil society transparency

Ian, and reps of civil society networks on the Civil Society Coordination Group (CSCG) ,

I propose that CSCG sets up a civil society transparency project, somewhat on the lines of the EU Transparency Register, pl see http://ec.europa.eu/transparencyregister/public/homePage.do .

It should in fact go beyond the EU initiative which is a general one for all lobbying groups, whereas we here are concerned with civil society which should set the highest example of transparency and accountability. The 'register' can have self filled information on objectives of an organisation, principles followed by it, if any, its funding, partners, and so on.... 

This is at present just my proposal, but I hope one or more civil society networks in the IG space can own it and push it... CSCG would be well placed to run this project as a neutral space so that there is no accusation of bias that any such initiative is being employed for partisan purposes. In any case, a simple initiative for openness, transparency and accountability can hardly be partisan.

The register can have optional higher level features whereby a group/ org can declare its means of public accountability, whether and how its internal governance is done, how matters can be taken by with their oversight bodies, like board etc, and whether they have any means whereby they respond to public question on their work, etc.

For such genuine cases where such transparency can harm an organisations work, or security, such organisations, and only such organisations, can be exempted employing a clear process and set of criteria.

Remember, both the UN report on improvements to the IGF and the NetMundial Statement highlight the issue of transparency. I also recently read in these lists how we should make bridges with the OpenGov movement which is almost wholly about this one thing. Time we begin practising what we preach. 

I look forward to hear responses to this proposal..

parminder 



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From ca at cafonso.ca  Sat Jun  6 18:48:50 2015
From: ca at cafonso.ca (Carlos A. Afonso)
Date: Sat, 06 Jun 2015 19:48:50 -0300
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
Message-ID: <557378D2.6030503@cafonso.ca>

For the ones who are following the IANA transition process: attached
please find the comments posted by the government of Brazil on June 03,
2015, in response to the call for public comments on the
CCWG-Accountability Initial Draft Proposal.

I generally agree with the comments.

fraternal regards

--c.a.
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From gurstein at gmail.com  Sat Jun  6 22:20:42 2015
From: gurstein at gmail.com (Michael Gurstein)
Date: Sun, 7 Jun 2015 10:20:42 +0800
Subject: [governance] #UnfollowMe
In-Reply-To: <44a94a4a-e285-4389-aaa9-593ce7a10650@email.android.com>
References: <ED3883BD33C44D9EABB92D67DB451E15@Toshiba> <001601d0a021$931f2080$b95d6180$@gmail.com> <FBF005AB4DDF4D7587A93C951DDFF104@Toshiba> <44a94a4a-e285-4389-aaa9-593ce7a10650@email.android.com>
Message-ID: <002e01d0a0c9$0d50e3a0$27f2aae0$@gmail.com>

Good to see Tamir, thanks. Perhaps it would also have been good to have these connections indicated in the current call (to put additional pressure on locally and to use whatever leverage the general call achieves as part of the national campaigns).

 

M

 

From: tisrael at cippic.ca [mailto:tisrael at cippic.ca] 
Sent: June 7, 2015 12:18 AM
To: governance at lists.igcaucus.org; Ian Peter; Ian Peter; Michael Gurstein
Subject: Re: [governance] #UnfollowMe

 

Moreover, there is coordination with domestic campaigns. For example amnesty / unfollowme has been fairly active in Canada on C 51.

Best,
Tamir

  _____  

From: Ian Peter <ian.peter at ianpeter.com <mailto:ian.peter at ianpeter.com> >
Sent: 6 June, 2015 2:59:58 AM EDT
To: Michael Gurstein <gurstein at gmail.com <mailto:gurstein at gmail.com> >, governance at lists.igcaucus.org <mailto:governance at lists.igcaucus.org> 
Subject: Re: [governance] #UnfollowMe

 

Yes I agree – but despite the headlines around it this one claims to “ call on the USA and UK – as well as their close allies Australia, Canada and New Zealand – to end indiscriminate mass surveillance today”. So it’s not just USA, but the 5 Eyes. 

 

From: Michael Gurstein <mailto:gurstein at gmail.com>  

Sent: Saturday, June 06, 2015 4:22 PM

To: governance at lists.igcaucus.org <mailto:governance at lists.igcaucus.org>  ; 'Ian Peter' <mailto:ian.peter at ianpeter.com>  

Subject: RE: [governance] #UnfollowMe

 

Yes a good initiative but given the associated developments in our respective countries perhaps a two pronged initiative – one global and a second local/national -- would have been more useful.  There are several parallel initiatives currently underway in Canada in response to the execrable Harper governments hyper-execrable Bill C: 51 and it would be nice if there was international reinforcement support for these alongside this global initiative.

 

M

 

From: governance-request at lists.igcaucus.org <mailto:governance-request at lists.igcaucus.org>  [mailto:governance-request at lists.igcaucus.org] On Behalf Of Ian Peter
Sent: June 6, 2015 11:19 AM
To: governance at lists.igcaucus.org <mailto:governance at lists.igcaucus.org> 
Subject: [governance] #UnfollowMe

  

Worthy of support and widespread dissemination. Nice to see Amnesty International supporting this cause. 

 

Thank you for signing our #UnfollowMe petition to end indiscriminate mass surveillance. We’ll deliver your signatures to leaders in the months ahead, and use your voices to demand urgent action.

Together, we can stop governments hoovering up all our personal data – our emails, internet searches, voice calls, webcam images and so much more. We can pressure leaders to ensure surveillance of communications is the exception, not the rule. It should only happen when it’s targeted, based on sufficient evidence of wrongdoing, and authorised by a strictly independent authority, such as a judge.

Please share this petition with your friends using the link below, and tweet your support using the hashtag #UnfollowMe.

https://www.amnesty.org/en/action-unfollowme-tell-governments-to-ban-mass-surveillance/ 

Thank you again for taking action – change only happens when people like you take a stand.


  _____  


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From gurstein at gmail.com  Sat Jun  6 22:20:42 2015
From: gurstein at gmail.com (Michael Gurstein)
Date: Sun, 7 Jun 2015 10:20:42 +0800
Subject: [governance] [bestbits] Civil society transparency
In-Reply-To: <41C19523561A4A5CA29EF6368B4F5AA5@Toshiba>
References: <55617E51.5010901@itforchange.net> <41C19523561A4A5CA29EF6368B4F5AA5@Toshiba>
Message-ID: <003801d0a0c9$1587b3f0$40971bd0$@gmail.com>

Ian and all,

 

The reason why there is a request for disclosure is so as to know the background or context from which opinions/positions/actions emerge.  It is the same argument I think, as that concerning real identity vs. anonymity as per the current Facebook controversy. It is an extremely useful and in some cases essential item of information to know who (the identity) it is that one is interacting with. 

 

My own feeling on the issue is that unless there are strong and persuasive arguments in favour of anonymity then knowing the “identity” of who (or what) ever one is interacting with is a basic requirement. I don’t know that it has ever been an issue in our various IG discussions but if it did arise my guess is that most would opt for people using their “real” names/identities for their contributions.

 

If the above is the case then I think that by extension we can give some content to what we mean by “real identity”.  

 

To some degree the components of the “real identity” required for effective communication/interaction will vary from context to context—for romantic purposes age, appearance, gender would likely be necessary; for financial contexts formal elements as might be required or contracts such as citizenship, financial and credit information are part of that “real identify”.  

 

I would argue that in our IG context “real identity” should include a knowledge of the financial/contractual contexts (i.e. who is paying the piper) from which individual participation is being presented.

 

M

 

From: bestbits-request at lists.bestbits.net [mailto:bestbits-request at lists.bestbits.net] On Behalf Of Ian Peter
Sent: June 7, 2015 6:03 AM
To: parminder; governance at lists.igcaucus.org; BestBitsList; Forum at Justnetcoalition. Org; A general information sharing space for the APC Community.
Subject: Re: [bestbits] [governance] Civil society transparency

 

Hi Parminder,

 

Following from the discussion, here is what I think is possible and realistic in this space.

 

Firstly, I think the question of transparency and disclosure of conflicts of interest is important.

 

However, I don’t think people need to declare interests to involve themselves in discussion here or in any of our open mailing lists, and the real concerns start to arise only when people are seeking office as civil society representatives.

 

Here, most of the office bearing exists in the various coalitions – APC, Best Bits, JNC, NCSG, IGC. I would urge each of these groups, when holding elections, to require candidates to register any conflicts of interest. I know Best Bits is moving to elections for its Steering Committee again soon, perhaps it could formulate some sort of basic disclosure requirement for its purposes? And I guess JNC must be moving towards holding its first elections for SC replenishment soon?  And IGC could easily add such a requirement for its candidates for co cordinator elections (presumably late this year).

 

But these are requirements for individual groups, and the form of such is for each group to determine. I think however that such a requirement would be a good idea.

 

As regards CSCG – our calls for candidates are for appointments to outside bodies, and I agree that some form of disclosure of any conflicts of interest would be a good idea. Currently it would appear that our next task would be MAG replenishment (and a small one at that), probably early next year. I will suggest to the members that we should require some sort of basic disclosure statement. But that of course is up to the members (APC, BB, JNC, NCSG, IGC) to determine.

 

I’m not sure we can go much further. But if some work can be done on a simple model of a form of disclosure, that would be good.

 

Ian Peter

 

From: parminder <mailto:parminder at itforchange.net>  

Sent: Sunday, May 24, 2015 5:31 PM

To: Ian Peter <mailto:ian.peter at ianpeter.com>  ; governance at lists.igcaucus.org <mailto:governance at lists.igcaucus.org>  ; BestBitsList <mailto:bestbits at lists.bestbits.net>  ; mailto:forum at justnetcoalition.org ; A general information sharing space for the APC Community. <mailto:apc.forum at lists.apc.org>  

Subject: [governance] Civil society transparency

 

Ian, and reps of civil society networks on the Civil Society Coordination Group (CSCG) ,

I propose that CSCG sets up a civil society transparency project, somewhat on the lines of the EU Transparency Register, pl see http://ec.europa.eu/transparencyregister/public/homePage.do .

It should in fact go beyond the EU initiative which is a general one for all lobbying groups, whereas we here are concerned with civil society which should set the highest example of transparency and accountability. The 'register' can have self filled information on objectives of an organisation, principles followed by it, if any, its funding, partners, and so on.... 

This is at present just my proposal, but I hope one or more civil society networks in the IG space can own it and push it... CSCG would be well placed to run this project as a neutral space so that there is no accusation of bias that any such initiative is being employed for partisan purposes. In any case, a simple initiative for openness, transparency and accountability can hardly be partisan.

The register can have optional higher level features whereby a group/ org can declare its means of public accountability, whether and how its internal governance is done, how matters can be taken by with their oversight bodies, like board etc, and whether they have any means whereby they respond to public question on their work, etc.

For such genuine cases where such transparency can harm an organisations work, or security, such organisations, and only such organisations, can be exempted employing a clear process and set of criteria.

Remember, both the UN report on improvements to the IGF and the NetMundial Statement highlight the issue of transparency. I also recently read in these lists how we should make bridges with the OpenGov movement which is almost wholly about this one thing. Time we begin practising what we preach. 

I look forward to hear responses to this proposal..

parminder 

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From parminder at itforchange.net  Sun Jun  7 01:49:58 2015
From: parminder at itforchange.net (parminder)
Date: Sun, 07 Jun 2015 11:19:58 +0530
Subject: [governance] Civil society transparency
In-Reply-To: <41C19523561A4A5CA29EF6368B4F5AA5@Toshiba>
References: <55617E51.5010901@itforchange.net> <41C19523561A4A5CA29EF6368B4F5AA5@Toshiba>
Message-ID: <5573DB86.5080001@itforchange.net>

Ian, thanks for taking this discussion forward.

Firstly, on the matter of to whom the required transparency measures
should be applicable. I have said this before, this is supposed to be
voluntary, and individuals merely getting into discussions on civil
society lists are not important in this regard. It is the civil society
organisations as well as individuals who get selected as civil society
reps in various forms, or otherwise play significant roles in civil
society and multistakeholder spaces, that we mainly focus on. The major
organisations involved in this area must be subject to basic
transparency requirements whether or not they take a civil society rep
position because they in any case very often play very important role in
policy processes. As you would have seen, unfortunately, a lot of strong
civil society action is currently taking place away from the key
coalitions that you mention.

(On the other hand, I dont see why any individual just coming into some
IG discussion on civil society lists would be taking any IG related
funding at all - I mean what would s/he take it for - for spending time
on these lists!? (That btw would be most interesting - but then we know
that some big governments have paid people intervening in the cyber -
public sphere as a new form of public propaganda.) So, I fail to
understand why is this discussion focussing on individuals merely
participating in the list discussions - they can simply ignore the
proposed voluntary register, or enter that they take no IG activities
related funding from anyone, as one would expect to be true for most of
them. But then well, if individuals do take clear IG related funding,
say, as travel grants, occasional writings. and so on, I would think it
is necessary to declare that - perhaps even morethan in case of
organisations, who, unlike individuals, mostly - though not always -
have other forms of additional NGO governance checks. But to repeat, my
proposal has a greater primary focus on involved organisations as
against individuals. )

Next, about what kind of transparency measures are appropriate.
'Conflict of interest' is used more in corporate governance and we,
civil society people, would best stick to higher norms of public life
rather than go by corporate governance norms. The later are necessarily
limited and have a different nature. For instance, conflict of interest
will apply to someone who holds the shares of a company but then gets
involved in a governance decision that impacts the bottomline of that
company. Things really do not work like that in public life, where
transparency and accountability have a very different - much higher but
accordingly also diffuse  - meaning and implication. The 'public' part
of 'public life' is very important - and as civil society players we are
in public life, in fact in its rather powerful 'political life' part. In
stating a conflict of interest a person takes a private decision about
oneself and one's state of affair (of course, the decision can become
public in case of accusations, some future crisis, and so on).
Transparency of people in public life requires such judgements to made
/by the public/, and /at all times/. That is of essence. Sorry, that one
has to go into such basic canons of public life, which have a long
history and much better enunciations than I can attempt here.

It is or this reason that simple conflict of interest statement while it
may serve the limited scope of requirements of corporate governance,
does not satisfy the public requirements of public life, especially as
involving those actors who are involved in public governance, as IG
civil society certainly is.

To make this discussion more concrete; youd agree that we should get
into instituting a process only if it has any real meaning in terms of
practical implications. So I ask you, lets say that an organisation or
an individual were receiving funding from government of India or from
Google - and is involved in the typical IG related activities; please
provide me an instance of likely case in which that organisation/
individual will self declare a conflict of interest. I cant think of
many such possible instances - policy work is by its very nature diffuse
and almost everyone is, by the very nature of it being public policy,
impacted - some certainly more than the other, but private judgements of
such impact would hardly be useful. It is not that IGF or an IG
governance body is ever going to make a declaration specifically on govt
of India or google, in which kind of case perhaps one may jump to state
a funding conflict. In fact, one still may not, becuase typically any
org will accept funding only in the name of promoting public interest
and would not want to accept that pushing a public policy discussion or
process in one way or the other actually constitutes a 'conflict of
interest' - in that it would not want to admit that in accepting a
funding it had accepted taking on 'an interest'. That is a fundamental
difference in how a civil society org is constitutes, as against a
lobbying body. For all these reasons, conflict of interest is not a
concept suited for civil society transparency and accountability. Your
proposal for "require(ing) candidates to register any conflicts of
interest" would simply result in all candidates saying 'they have no
conflict of interest that they can recognise' and thus would serve no
purpose at all.

Lastly, while you keep on saying this is the most we can do ( 'conflict
of interest' declaration) you have not given any reason why transparency
standards often applied in other areas of civil society work should not
be applied in the IG space as well, and what exactly is wrong with a
basic voluntary register of transparency simply declaring 'interests,
objectives, and funding sources'. This even when I have been arguing
that it is even more important for IG civil society than in other civil
society areas, because the unique multistakeholder claim and approach in
this area puts civil society in more significant, even powerful, policy
positions than in other areas. Also, how basic documents on healthy
development of a multistakeholder approach like the UN report on IGF
improvements, NetMundial Statement, etc, all point to need for greater
transparency. I once again exhort you to read Luca Belli's this
excellent paper on multistakeholderism
<http://policyreview.info/articles/analysis/heterostakeholder-cooperation-sustainable-internet-policymaking>
  which argues why such basic transparency is essential to forwarding a
multistakeholder approach.

I cant see how IG civil society can keep pushing a multistakeholder
approach to policy making, and seek a greater role for itself in the
process, but then keep dragging its feet on accepting even basic
transparency norms. The world is watching of course, and will ask
questions. there is a cost to being in public life.

parminder


On Sunday 07 June 2015 03:32 AM, Ian Peter wrote:
> Hi Parminder,
>  
> Following from the discussion, here is what I think is possible and
> realistic in this space.
>  
> Firstly, I think the question of transparency and disclosure of
> conflicts of interest is important.
>  
> However, I don’t think people need to declare interests to involve
> themselves in discussion here or in any of our open mailing lists, and
> the real concerns start to arise only when people are seeking office
> as civil society representatives.
>  
> Here, most of the office bearing exists in the various coalitions –
> APC, Best Bits, JNC, NCSG, IGC. I would urge each of these groups,
> when holding elections, to require candidates to register any
> conflicts of interest. I know Best Bits is moving to elections for its
> Steering Committee again soon, perhaps it could formulate some sort of
> basic disclosure requirement for its purposes? And I guess JNC must be
> moving towards holding its first elections for SC replenishment soon? 
> And IGC could easily add such a requirement for its candidates for co
> cordinator elections (presumably late this year).
>  
> But these are requirements for individual groups, and the form of such
> is for each group to determine. I think however that such a
> requirement would be a good idea.
>  
> As regards CSCG – our calls for candidates are for appointments to
> outside bodies, and I agree that some form of disclosure of any
> conflicts of interest would be a good idea. Currently it would appear
> that our next task would be MAG replenishment (and a small one at
> that), probably early next year. I will suggest to the members that we
> should require some sort of basic disclosure statement. But that of
> course is up to the members (APC, BB, JNC, NCSG, IGC) to determine.
>  
> I’m not sure we can go much further. But if some work can be done on a
> simple model of a form of disclosure, that would be good.
>  
> Ian Peter
>  
> *From:* parminder <mailto:parminder at itforchange.net>
> *Sent:* Sunday, May 24, 2015 5:31 PM
> *To:* Ian Peter <mailto:ian.peter at ianpeter.com> ;
> governance at lists.igcaucus.org <mailto:governance at lists.igcaucus.org> ;
> BestBitsList <mailto:bestbits at lists.bestbits.net> ;
> mailto:forum at justnetcoalition.org ; A general information sharing
> space for the APC Community. <mailto:apc.forum at lists.apc.org>
> *Subject:* [governance] Civil society transparency
>  
> Ian, and reps of civil society networks on the Civil Society
> Coordination Group (CSCG) ,
>
> I propose that CSCG sets up a civil society transparency project,
> somewhat on the lines of the EU Transparency Register, pl see
> http://ec.europa.eu/transparencyregister/public/homePage.do .
>
> It should in fact go beyond the EU initiative which is a general one
> for all lobbying groups, whereas we here are concerned with civil
> society which should set the highest example of transparency and
> accountability. The 'register' can have self filled information on
> objectives of an organisation, principles followed by it, if any, its
> funding, partners, and so on....
>
> This is at present just my proposal, but I hope one or more civil
> society networks in the IG space can own it and push it... CSCG would
> be well placed to run this project as a neutral space so that there is
> no accusation of bias that any such initiative is being employed for
> partisan purposes. In any case, a simple initiative for openness,
> transparency and accountability can hardly be partisan.
>
> The register can have optional higher level features whereby a group/
> org can declare its means of public accountability, whether and how
> its internal governance is done, how matters can be taken by with
> their oversight bodies, like board etc, and whether they have any
> means whereby they respond to public question on their work, etc.
>
> For such genuine cases where such transparency can harm an
> organisations work, or security, such organisations, and only such
> organisations, can be exempted employing a clear process and set of
> criteria.
>
> Remember, both the UN report on improvements to the IGF and the
> NetMundial Statement highlight the issue of transparency. I also
> recently read in these lists how we should make bridges with the
> OpenGov movement which is almost wholly about this one thing. Time we
> begin practising what we preach.
>
> I look forward to hear responses to this proposal..
>
> parminder
>
> ------------------------------------------------------------------------
> ____________________________________________________________
> You received this message as a subscriber on the list:
>      governance at lists.igcaucus.org
> To be removed from the list, visit:
>      http://www.igcaucus.org/unsubscribing
>
> For all other list information and functions, see:
>      http://lists.igcaucus.org/info/governance
> To edit your profile and to find the IGC's charter, see:
>      http://www.igcaucus.org/
>
> Translate this email: http://translate.google.com/translate_t
>
>
> ____________________________________________________________
> You received this message as a subscriber on the list:
>      governance at lists.igcaucus.org
> To be removed from the list, visit:
>      http://www.igcaucus.org/unsubscribing
>
> For all other list information and functions, see:
>      http://lists.igcaucus.org/info/governance
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>
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From tisrael at cippic.ca  Sun Jun  7 02:06:46 2015
From: tisrael at cippic.ca (Tamir Israel)
Date: Sun, 07 Jun 2015 02:06:46 -0400
Subject: [governance] #UnfollowMe
In-Reply-To: <002e01d0a0c9$0d50e3a0$27f2aae0$@gmail.com>
References: <ED3883BD33C44D9EABB92D67DB451E15@Toshiba> <001601d0a021$931f2080$b95d6180$@gmail.com> <FBF005AB4DDF4D7587A93C951DDFF104@Toshiba> <44a94a4a-e285-4389-aaa9-593ce7a10650@email.android.com> <002e01d0a0c9$0d50e3a0$27f2aae0$@gmail.com>
Message-ID: <5573DF76.7050001@cippic.ca>

Dear Mike,

You'll be very pleased to hear that in the report that was jointly
issued w/privacy international as part of this initiative, there's a lot
of relevant domestic content, including regarding Canada.

All the best,
Tamir

On 6/6/2015 10:20 PM, Michael Gurstein wrote:
>
> Good to see Tamir, thanks. Perhaps it would also have been good to
> have these connections indicated in the current call (to put
> additional pressure on locally and to use whatever leverage the
> general call achieves as part of the national campaigns).
>
>  
>
> M
>
>  
>
> *From:*tisrael at cippic.ca [mailto:tisrael at cippic.ca]
> *Sent:* June 7, 2015 12:18 AM
> *To:* governance at lists.igcaucus.org; Ian Peter; Ian Peter; Michael
> Gurstein
> *Subject:* Re: [governance] #UnfollowMe
>
>  
>
> Moreover, there is coordination with domestic campaigns. For example
> amnesty / unfollowme has been fairly active in Canada on C 51.
>
> Best,
> Tamir
>
> ------------------------------------------------------------------------
>
> *From:*Ian Peter <ian.peter at ianpeter.com <mailto:ian.peter at ianpeter.com>>
> *Sent:* 6 June, 2015 2:59:58 AM EDT
> *To:* Michael Gurstein <gurstein at gmail.com
> <mailto:gurstein at gmail.com>>, governance at lists.igcaucus.org
> <mailto:governance at lists.igcaucus.org>
> *Subject:* Re: [governance] #UnfollowMe
>
>  
>
> Yes I agree – but despite the headlines around it this one claims to
> “*call on the USA and UK – as well as their close allies Australia,
> Canada and New Zealand – to end indiscriminate mass surveillance
> today”. *So it’s not just USA, but the 5 Eyes.
>
>  
>
> *From:*Michael Gurstein <mailto:gurstein at gmail.com>
>
> *Sent:*Saturday, June 06, 2015 4:22 PM
>
> *To:*governance at lists.igcaucus.org
> <mailto:governance at lists.igcaucus.org> ; 'Ian Peter'
> <mailto:ian.peter at ianpeter.com>
>
> *Subject:*RE: [governance] #UnfollowMe
>
>  
>
> Yes a good initiative but given the associated developments in our
> respective countries perhaps a two pronged initiative – one global and
> a second local/national -- would have been more useful.  There are
> several parallel initiatives currently underway in Canada in response
> to the execrable Harper governments hyper-execrable Bill C: 51 and it
> would be nice if there was international reinforcement support for
> these alongside this global initiative.
>
>  
>
> M
>
>  
>
> *From:*governance-request at lists.igcaucus.org
> <mailto:governance-request at lists.igcaucus.org>
> [mailto:governance-request at lists.igcaucus.org] *On Behalf Of *Ian Peter
> *Sent:* June 6, 2015 11:19 AM
> *To:* governance at lists.igcaucus.org <mailto:governance at lists.igcaucus.org>
> *Subject:* [governance] #UnfollowMe
>
>  
>
> Worthy of support and widespread dissemination. Nice to see Amnesty
> International supporting this cause.
>
>  
>
> Thank you for signing our #UnfollowMe petition to end indiscriminate
> mass surveillance. We’ll deliver your signatures to leaders in the
> months ahead, and use your voices to demand urgent action.
>
> Together, we can stop governments hoovering up all our personal data –
> our emails, internet searches, voice calls, webcam images and so much
> more. We can pressure leaders to ensure surveillance of communications
> is the exception, not the rule. It should only happen when it’s
> targeted, based on sufficient evidence of wrongdoing, and authorised
> by a strictly independent authority, such as a judge.
>
> Please share this petition with your friends using the link below, and
> tweet your support using the hashtag #UnfollowMe.
>
> https://www.amnesty.org/en/action-unfollowme-tell-governments-to-ban-mass-surveillance/
>
>
> Thank you again for taking action – change only happens when people
> like you take a stand.
>
> ------------------------------------------------------------------------
> You received this message as a subscriber on the list:
>      governance at lists.igcaucus.org <mailto:governance at lists.igcaucus.org>
> To be removed from the list, visit:
>      http://www.igcaucus.org/unsubscribing
>
> For all other list information and functions, see:
>      http://lists.igcaucus.org/info/governance
> To edit your profile and to find the IGC's charter, see:
>      http://www.igcaucus.org/
>
> Translate this email: http://translate.google.com/translate_t
>
>
> --
>
> Sent from my mobile device.
>
>
>
> ____________________________________________________________
> You received this message as a subscriber on the list:
>      governance at lists.igcaucus.org
> To be removed from the list, visit:
>      http://www.igcaucus.org/unsubscribing
>
> For all other list information and functions, see:
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>
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From parminder at itforchange.net  Sun Jun  7 02:18:35 2015
From: parminder at itforchange.net (parminder)
Date: Sun, 07 Jun 2015 11:48:35 +0530
Subject: [governance] [JNC - Forum] [bestbits] Civil society
 transparency
In-Reply-To: <CAArNAf5aCPH5HcxbjSd0ZFSOJER6Ag=UaBG7F7qQKiw2qB5MtA@mail.gmail.com>
References: <55617E51.5010901@itforchange.net>	<41C19523561A4A5CA29EF6368B4F5AA5@Toshiba>	<003801d0a0c9$1587b3f0$40971bd0$@gmail.com> <CAArNAf5aCPH5HcxbjSd0ZFSOJER6Ag=UaBG7F7qQKiw2qB5MtA@mail.gmail.com>
Message-ID: <5573E23B.8010503@itforchange.net>



On Sunday 07 June 2015 10:30 AM, Roberto Bissio wrote:
> Dear Parminder,
>
> There are many mechanisms for CSO accountability.
>
> NGOS accredited to the UN have to regularly report on funding, bilaws,
> authorities and activities.
>
> Further, an INGO accountability charter
> exists: http://www.ingoaccountabilitycharter.org/
>
> Social Watch was a member, until we could not afford the membership
> fee, which is unfairly burdensome on poorer organizations from the South. 
>
> Some fee is required if you are to assess the reporting of the
> organizations. Otherwise everybody declares what it wants and the
> transparency is meaningless.

Roberto

This is the reason that what is sought is a simple no cost statement of
voluntary declaration of (1) interests, and (2) objectives and (3)
funding sources, very much on the lines of the basic requirement that
you mention below, and I would add as per your note "affiliations to
networks or institutions "  (somewhat like theEU transparency register
<http://ec.europa.eu/transparencyregister/public/homePage.do> .)   And
this with no fee or costs to those who enter the register -- the project
should be run on independent funding by whoever runs it, and I have
offered to help raise resources. And it being an online activity, the
project requires very little resources.

While in any case required for civil society, such a practise becomes
even more important in the IG space where (1) there is a special - even
'equal footing' - claim to be on policy tables ,  and (2) where the
geo-political investments  as well as corporate investments into CS
spaces by far exceed any other area.   Funding sources of both JNC and
BestBits have been publicly questioned in the recent past, on these very
lists. What better way to go forward than having basic transparency
declarations instituted to that there is a better basis for minimum
cooperation and working together as we go forward. In this regard, it is
important to recognise that for good or bad, or maybe that is just some
unique characteristics of a civil society space which is both in the
making in some way, and otherwise unique in some other ways, political
divisions have been especially deep within the IG civil society space.
(The reasons for this are structural, although repeated efforts are made
to lay the blame on individual behavioural causes, and thus escape the
real political basis of the differences .)  I know that these things are
not unknown in other areas, but still - stated very roughly - a better
mainstream conception of civil society is generally obtainable in other
areas. All these characteristics of the IG civil society space make
instituting some basic transparency guidelines - on a voluntary basis -
important for healthy development of civil society in the IG area, whose
political role in the emerging digitally-mediated society is going to be
extremly important. This should be a common commitment to ourselves, in
all humility with regard to the increasingly important political role
that civil society in the IG space plays.

parminder 

>
> While it makes sense to demand accountability from organizations
> involved in the top levl of international advocacy, there are too many
> situations in the world where this could mean another additional and
> unfair request, on top of the many requests of regular reports that
> most countries have to grant incorporation. Demanding more from CSOs
> when neither governments nor corporations have to meet similar
> requirements seems unfair to me. But maybe it makes sense to have a
> list explaining wether the members are incporprated, where and under
> what title (for profit, non-profit, etc) and affilitiaons to networks
> or institutions they want to declare or wether it is an individual or
> an informal grouping. Do remember that it is an human right (right to
> association) to form groups of any kind, and they are (or should be)
> deemed as "innocent" until proven guilty. Too many states turn the
> table around and presume that associations are illegal until they
> register and demonstrate they are "clean". We should not unwillingly
> support that trend.
>
> best,
> Roberto
>
>
> On Sun, Jun 7, 2015 at 4:20 AM, Michael Gurstein <gurstein at gmail.com
> <mailto:gurstein at gmail.com>> wrote:
>
>     Ian and all,
>
>      
>
>     The reason why there is a request for disclosure is so as to know
>     the background or context from which opinions/positions/actions
>     emerge.  It is the same argument I think, as that concerning real
>     identity vs. anonymity as per the current Facebook controversy. It
>     is an extremely useful and in some cases essential item of
>     information to know who (the identity) it is that one is
>     interacting with.
>
>      
>
>     My own feeling on the issue is that unless there are strong and
>     persuasive arguments in favour of anonymity then knowing the
>     “identity” of who (or what) ever one is interacting with is a
>     basic requirement. I don’t know that it has ever been an issue in
>     our various IG discussions but if it did arise my guess is that
>     most would opt for people using their “real” names/identities for
>     their contributions.
>
>      
>
>     If the above is the case then I think that by extension we can
>     give some content to what we mean by “real identity”. 
>
>      
>
>     To some degree the components of the “real identity” required for
>     effective communication/interaction will vary from context to
>     context—for romantic purposes age, appearance, gender would likely
>     be necessary; for financial contexts formal elements as might be
>     required or contracts such as citizenship, financial and credit
>     information are part of that “real identify”. 
>
>      
>
>     I would argue that in our IG context “real identity” should
>     include a knowledge of the financial/contractual contexts (i.e.
>     who is paying the piper) from which individual participation is
>     being presented.
>
>      
>
>     M
>
>      
>
>     *From:*bestbits-request at lists.bestbits.net
>     <mailto:bestbits-request at lists.bestbits.net>
>     [mailto:bestbits-request at lists.bestbits.net
>     <mailto:bestbits-request at lists.bestbits.net>] *On Behalf Of *Ian Peter
>     *Sent:* June 7, 2015 6:03 AM
>     *To:* parminder; governance at lists.igcaucus.org
>     <mailto:governance at lists.igcaucus.org>; BestBitsList;
>     Forum at Justnetcoalition. Org; A general information sharing space
>     for the APC Community.
>     *Subject:* Re: [bestbits] [governance] Civil society transparency
>
>      
>
>     Hi Parminder,
>
>      
>
>     Following from the discussion, here is what I think is possible
>     and realistic in this space.
>
>      
>
>     Firstly, I think the question of transparency and disclosure of
>     conflicts of interest is important.
>
>      
>
>     However, I don’t think people need to declare interests to involve
>     themselves in discussion here or in any of our open mailing lists,
>     and the real concerns start to arise only when people are seeking
>     office as civil society representatives.
>
>      
>
>     Here, most of the office bearing exists in the various coalitions
>     – APC, Best Bits, JNC, NCSG, IGC. I would urge each of these
>     groups, when holding elections, to require candidates to register
>     any conflicts of interest. I know Best Bits is moving to elections
>     for its Steering Committee again soon, perhaps it could formulate
>     some sort of basic disclosure requirement for its purposes? And I
>     guess JNC must be moving towards holding its first elections for
>     SC replenishment soon?  And IGC could easily add such a
>     requirement for its candidates for co cordinator elections
>     (presumably late this year).
>
>      
>
>     But these are requirements for individual groups, and the form of
>     such is for each group to determine. I think however that such a
>     requirement would be a good idea.
>
>      
>
>     As regards CSCG – our calls for candidates are for appointments to
>     outside bodies, and I agree that some form of disclosure of any
>     conflicts of interest would be a good idea. Currently it would
>     appear that our next task would be MAG replenishment (and a small
>     one at that), probably early next year. I will suggest to the
>     members that we should require some sort of basic disclosure
>     statement. But that of course is up to the members (APC, BB, JNC,
>     NCSG, IGC) to determine.
>
>      
>
>     I’m not sure we can go much further. But if some work can be done
>     on a simple model of a form of disclosure, that would be good.
>
>      
>
>     Ian Peter
>
>      
>
>     *From:*parminder <mailto:parminder at itforchange.net>
>
>     *Sent:*Sunday, May 24, 2015 5:31 PM
>
>     *To:*Ian Peter <mailto:ian.peter at ianpeter.com> ;
>     governance at lists.igcaucus.org
>     <mailto:governance at lists.igcaucus.org> ; BestBitsList
>     <mailto:bestbits at lists.bestbits.net> ;
>     mailto:forum at justnetcoalition.org ; A general information sharing
>     space for the APC Community. <mailto:apc.forum at lists.apc.org>
>
>     *Subject:*[governance] Civil society transparency
>
>      
>
>     Ian, and reps of civil society networks on the Civil Society
>     Coordination Group (CSCG) ,
>
>     I propose that CSCG sets up a civil society transparency project,
>     somewhat on the lines of the EU Transparency Register, pl see
>     http://ec.europa.eu/transparencyregister/public/homePage.do .
>
>     It should in fact go beyond the EU initiative which is a general
>     one for all lobbying groups, whereas we here are concerned with
>     civil society which should set the highest example of transparency
>     and accountability. The 'register' can have self filled
>     information on objectives of an organisation, principles followed
>     by it, if any, its funding, partners, and so on....
>
>     This is at present just my proposal, but I hope one or more civil
>     society networks in the IG space can own it and push it... CSCG
>     would be well placed to run this project as a neutral space so
>     that there is no accusation of bias that any such initiative is
>     being employed for partisan purposes. In any case, a simple
>     initiative for openness, transparency and accountability can
>     hardly be partisan.
>
>     The register can have optional higher level features whereby a
>     group/ org can declare its means of public accountability, whether
>     and how its internal governance is done, how matters can be taken
>     by with their oversight bodies, like board etc, and whether they
>     have any means whereby they respond to public question on their
>     work, etc.
>
>     For such genuine cases where such transparency can harm an
>     organisations work, or security, such organisations, and only such
>     organisations, can be exempted employing a clear process and set
>     of criteria.
>
>     Remember, both the UN report on improvements to the IGF and the
>     NetMundial Statement highlight the issue of transparency. I also
>     recently read in these lists how we should make bridges with the
>     OpenGov movement which is almost wholly about this one thing. Time
>     we begin practising what we preach.
>
>     I look forward to hear responses to this proposal..
>
>     parminder
>
>     ------------------------------------------------------------------------
>
>     ____________________________________________________________
>     You received this message as a subscriber on the list:
>          governance at lists.igcaucus.org
>     <mailto:governance at lists.igcaucus.org>
>     To be removed from the list, visit:
>          http://www.igcaucus.org/unsubscribing
>
>     For all other list information and functions, see:
>          http://lists.igcaucus.org/info/governance
>     To edit your profile and to find the IGC's charter, see:
>          http://www.igcaucus.org/
>
>     Translate this email: http://translate.google.com/translate_t
>
>
>     _______________________________________________
>     Forum mailing list
>     Forum at justnetcoalition.org <mailto:Forum at justnetcoalition.org>
>     http://mail.justnetcoalition.org/listinfo/forum
>
>

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From jc.nothias at theglobaljournal.net  Sun Jun  7 03:04:13 2015
From: jc.nothias at theglobaljournal.net (Jean-Christophe NOTHIAS I The Global Journal)
Date: Sun, 7 Jun 2015 09:04:13 +0200
Subject: [governance] [bestbits] [JNC - Forum] Civil society
 transparency
In-Reply-To: <5573E23B.8010503@itforchange.net>
References: <55617E51.5010901@itforchange.net>	<41C19523561A4A5CA29EF6368B4F5AA5@Toshiba>	<003801d0a0c9$1587b3f0$40971bd0$@gmail.com> <CAArNAf5aCPH5HcxbjSd0ZFSOJER6Ag=UaBG7F7qQKiw2qB5MtA@mail.gmail.com> <5573E23B.8010503@itforchange.net>
Message-ID: <5A7E3D00-73E1-48C3-95D2-B5D748F9C5FC@theglobaljournal.net>

To add a comment on NGO accountability (not synonym for transparency), and to support Parminder's point
and putting my Top 500 NGOs' hat on:
- INGO accountability Charter has a rather limited list of participants (large INGOs) precisely for the reason it is a paid "stamp". When looking in details, this charter has very limited constraints. The non-profit sector has clearly not endorsed it. For some good reasons. Listed corporations that do rely on public investment are under legal obligations in terms of accountability and transparency, and still, we do know that they are far away from being as transparent in terms of governance, interests and influence (lobbying politics, governments, trade unions, and civil society).
- There is no UN binding law, obligation or regulation, or whatever official request from NGOs listed as ECOSOC accredited by the UN. NGOs are basically free to provide info or not, and upload it within the database where one can find links related to NGOs accredited. The UN has no legal authority over NGO/NPO accountability or transparency. Once again, an ECOSOC accreditation is a simple ticket to provide NGOs with a possibility to join, listen, and sometime express within some of the UN forums/agencies/programs...

As we rank NGOs/NPOs/SocEnt/PPPs (with a public interest orientation) since 2012, we have been into many of these issues, and so far governments and listed corporations have a much greater degree of public accountability obligation than the non-profit sector. The non-profit sector obeys more on a voluntary basis, some of them providing, sometime, a good level of public data and information. There is room for progress. That would benefit the non-profit sector, and the IG sub non-profit sector could lead on this issue.

JC


Le 7 juin 2015 à 08:18, parminder a écrit :

> 
> 
> On Sunday 07 June 2015 10:30 AM, Roberto Bissio wrote:
>> Dear Parminder,
>> 
>> There are many mechanisms for CSO accountability.
>> 
>> NGOS accredited to the UN have to regularly report on funding, bilaws, authorities and activities.
>> 
>> Further, an INGO accountability charter exists: http://www.ingoaccountabilitycharter.org/
>> 
>> Social Watch was a member, until we could not afford the membership fee, which is unfairly burdensome on poorer organizations from the South. 
>> 
>> Some fee is required if you are to assess the reporting of the organizations. Otherwise everybody declares what it wants and the transparency is meaningless.
> 
> Roberto
> 
> This is the reason that what is sought is a simple no cost statement of voluntary declaration of (1) interests, and (2) objectives and (3) funding sources, very much on the lines of the basic requirement that you mention below, and I would add as per your note "affiliations to networks or institutions "  (somewhat like the EU transparency register .)   And this with no fee or costs to those who enter the register -- the project should be run on independent funding by whoever runs it, and I have offered to help raise resources. And it being an online activity, the project requires very little resources. 
> 
> While in any case required for civil society, such a practise becomes even more important in the IG space where (1) there is a special - even 'equal footing' - claim to be on policy tables ,  and (2) where the geo-political investments  as well as corporate investments into CS spaces by far exceed any other area.   Funding sources of both JNC and BestBits have been publicly questioned in the recent past, on these very lists. What better way to go forward than having basic transparency declarations instituted to that there is a better basis for minimum cooperation and working together as we go forward. In this regard, it is important to recognise that for good or bad, or maybe that is just some unique characteristics of a civil society space which is both in the making in some way, and otherwise unique in some other ways, political divisions have been especially deep within the IG civil society space. (The reasons for this are structural, although repeated efforts are made to lay the blame on individual behavioural causes, and thus escape the real political basis of the differences .)  I know that these things are not unknown in other areas, but still - stated very roughly - a better mainstream conception of civil society is generally obtainable in other areas. All these characteristics of the IG civil society space make instituting some basic transparency guidelines - on a voluntary basis - important for healthy development of civil society in the IG area, whose political role in the emerging digitally-mediated society is going to be extremly important. This should be a common commitment to ourselves, in all humility with regard to the increasingly important political role that civil society in the IG space plays.
> 
> parminder  
> 
>> 
>> While it makes sense to demand accountability from organizations involved in the top levl of international advocacy, there are too many situations in the world where this could mean another additional and unfair request, on top of the many requests of regular reports that most countries have to grant incorporation. Demanding more from CSOs when neither governments nor corporations have to meet similar requirements seems unfair to me. But maybe it makes sense to have a list explaining wether the members are incporprated, where and under what title (for profit, non-profit, etc) and affilitiaons to networks or institutions they want to declare or wether it is an individual or an informal grouping. Do remember that it is an human right (right to association) to form groups of any kind, and they are (or should be) deemed as "innocent" until proven guilty. Too many states turn the table around and presume that associations are illegal until they register and demonstrate they are "clean". We should not unwillingly support that trend.
>> 
>> best,
>> Roberto
>> 
>> 
>> On Sun, Jun 7, 2015 at 4:20 AM, Michael Gurstein <gurstein at gmail.com> wrote:
>> Ian and all,
>> 
>>  
>> The reason why there is a request for disclosure is so as to know the background or context from which opinions/positions/actions emerge.  It is the same argument I think, as that concerning real identity vs. anonymity as per the current Facebook controversy. It is an extremely useful and in some cases essential item of information to know who (the identity) it is that one is interacting with.
>> 
>>  
>> My own feeling on the issue is that unless there are strong and persuasive arguments in favour of anonymity then knowing the “identity” of who (or what) ever one is interacting with is a basic requirement. I don’t know that it has ever been an issue in our various IG discussions but if it did arise my guess is that most would opt for people using their “real” names/identities for their contributions.
>> 
>>  
>> If the above is the case then I think that by extension we can give some content to what we mean by “real identity”. 
>> 
>>  
>> To some degree the components of the “real identity” required for effective communication/interaction will vary from context to context—for romantic purposes age, appearance, gender would likely be necessary; for financial contexts formal elements as might be required or contracts such as citizenship, financial and credit information are part of that “real identify”. 
>> 
>>  
>> I would argue that in our IG context “real identity” should include a knowledge of the financial/contractual contexts (i.e. who is paying the piper) from which individual participation is being presented.
>> 
>>  
>> M
>> 
>>  
>> From: bestbits-request at lists.bestbits.net [mailto:bestbits-request at lists.bestbits.net] On Behalf Of Ian Peter
>> Sent: June 7, 2015 6:03 AM
>> To: parminder; governance at lists.igcaucus.org; BestBitsList; Forum at Justnetcoalition. Org; A general information sharing space for the APC Community.
>> Subject: Re: [bestbits] [governance] Civil society transparency
>> 
>>  
>> Hi Parminder,
>> 
>>  
>> Following from the discussion, here is what I think is possible and realistic in this space.
>> 
>>  
>> Firstly, I think the question of transparency and disclosure of conflicts of interest is important.
>> 
>>  
>> However, I don’t think people need to declare interests to involve themselves in discussion here or in any of our open mailing lists, and the real concerns start to arise only when people are seeking office as civil society representatives.
>> 
>>  
>> Here, most of the office bearing exists in the various coalitions – APC, Best Bits, JNC, NCSG, IGC. I would urge each of these groups, when holding elections, to require candidates to register any conflicts of interest. I know Best Bits is moving to elections for its Steering Committee again soon, perhaps it could formulate some sort of basic disclosure requirement for its purposes? And I guess JNC must be moving towards holding its first elections for SC replenishment soon?  And IGC could easily add such a requirement for its candidates for co cordinator elections (presumably late this year).
>> 
>>  
>> But these are requirements for individual groups, and the form of such is for each group to determine. I think however that such a requirement would be a good idea.
>> 
>>  
>> As regards CSCG – our calls for candidates are for appointments to outside bodies, and I agree that some form of disclosure of any conflicts of interest would be a good idea. Currently it would appear that our next task would be MAG replenishment (and a small one at that), probably early next year. I will suggest to the members that we should require some sort of basic disclosure statement. But that of course is up to the members (APC, BB, JNC, NCSG, IGC) to determine.
>> 
>>  
>> I’m not sure we can go much further. But if some work can be done on a simple model of a form of disclosure, that would be good.
>> 
>>  
>> Ian Peter
>> 
>>  
>> From: parminder
>> 
>> Sent: Sunday, May 24, 2015 5:31 PM
>> 
>> To: Ian Peter ; governance at lists.igcaucus.org ; BestBitsList ; mailto:forum at justnetcoalition.org ; A general information sharing space for the APC Community.
>> 
>> Subject: [governance] Civil society transparency
>> 
>>  
>> Ian, and reps of civil society networks on the Civil Society Coordination Group (CSCG) ,
>> 
>> I propose that CSCG sets up a civil society transparency project, somewhat on the lines of the EU Transparency Register, pl see http://ec.europa.eu/transparencyregister/public/homePage.do .
>> 
>> It should in fact go beyond the EU initiative which is a general one for all lobbying groups, whereas we here are concerned with civil society which should set the highest example of transparency and accountability. The 'register' can                               have self filled information on objectives of an organisation, principles followed by it, if any, its funding, partners, and so                               on.... 
>> 
>> This is at present just my proposal, but I hope one or more civil society networks in the IG space can own it and push it... CSCG would be well placed to run this project as a neutral space so that there is no accusation of bias that any such                               initiative is being employed for partisan purposes. In any case, a simple initiative for openness, transparency and accountability can hardly be partisan.
>> 
>> The register can have optional higher level features whereby a group/ org can declare its means of public accountability, whether and how its internal governance is done, how matters can be taken by with their oversight bodies, like board etc, and whether they have any means whereby they respond to public question on their work, etc.
>> 
>> For such genuine cases where such transparency can harm an organisations work, or security, such organisations, and                               only such organisations, can be exempted employing a clear process and set of criteria.
>> 
>> Remember, both the UN report on improvements to the IGF and the NetMundial Statement highlight the issue of transparency. I also recently read in these lists how we should make bridges with the OpenGov movement which is almost wholly about this one thing. Time we begin practising what we preach. 
>> 
>> I look forward to hear responses to this proposal..
>> 
>> parminder
>> 
>> ____________________________________________________________
>> You received this message as a subscriber on the list:
>>      governance at lists.igcaucus.org
>> To be removed from the list, visit:
>>      http://www.igcaucus.org/unsubscribing
>> 
>> For all other list information and functions, see:
>>      http://lists.igcaucus.org/info/governance
>> To edit your profile and to find the IGC's charter, see:
>>      http://www.igcaucus.org/
>> 
>> Translate this email: http://translate.google.com/translate_t
>> 
>> 
>> _______________________________________________
>> Forum mailing list
>> Forum at justnetcoalition.org
>> http://mail.justnetcoalition.org/listinfo/forum
>> 
>> 
> 
> ____________________________________________________________
> You received this message as a subscriber on the list:
>     bestbits at lists.bestbits.net.
> To unsubscribe or change your settings, visit:
>     http://lists.bestbits.net/wws/info/bestbits

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From anriette at apc.org  Sun Jun  7 03:33:57 2015
From: anriette at apc.org (Anriette Esterhuysen)
Date: Sun, 07 Jun 2015 09:33:57 +0200
Subject: [governance] [bestbits] [JNC - Forum] Civil society
 transparency
In-Reply-To: <5573E23B.8010503@itforchange.net>
References: <55617E51.5010901@itforchange.net>	<41C19523561A4A5CA29EF6368B4F5AA5@Toshiba>	<003801d0a0c9$1587b3f0$40971bd0$@gmail.com> <CAArNAf5aCPH5HcxbjSd0ZFSOJER6Ag=UaBG7F7qQKiw2qB5MtA@mail.gmail.com> <5573E23B.8010503@itforchange.net>
Message-ID: <5573F3E5.4000403@apc.org>

Dear all

I have not seen Roberto's message previously but I agree with Roberto
completely.

Anriette



On 07/06/2015 08:18, parminder wrote:
> 
> 
> On Sunday 07 June 2015 10:30 AM, Roberto Bissio wrote:
>> Dear Parminder,
>>
>> There are many mechanisms for CSO accountability.
>>
>> NGOS accredited to the UN have to regularly report on funding, bilaws,
>> authorities and activities.
>>
>> Further, an INGO accountability charter
>> exists: http://www.ingoaccountabilitycharter.org/
>>
>> Social Watch was a member, until we could not afford the membership
>> fee, which is unfairly burdensome on poorer organizations from the South. 
>>
>> Some fee is required if you are to assess the reporting of the
>> organizations. Otherwise everybody declares what it wants and the
>> transparency is meaningless.
> 
> Roberto
> 
> This is the reason that what is sought is a simple no cost statement of
> voluntary declaration of (1) interests, and (2) objectives and (3)
> funding sources, very much on the lines of the basic requirement that
> you mention below, and I would add as per your note "affiliations to
> networks or institutions "  (somewhat like theEU transparency register
> <http://ec.europa.eu/transparencyregister/public/homePage.do> .)   And
> this with no fee or costs to those who enter the register -- the project
> should be run on independent funding by whoever runs it, and I have
> offered to help raise resources. And it being an online activity, the
> project requires very little resources.
> 
> While in any case required for civil society, such a practise becomes
> even more important in the IG space where (1) there is a special - even
> 'equal footing' - claim to be on policy tables ,  and (2) where the
> geo-political investments  as well as corporate investments into CS
> spaces by far exceed any other area.   Funding sources of both JNC and
> BestBits have been publicly questioned in the recent past, on these very
> lists. What better way to go forward than having basic transparency
> declarations instituted to that there is a better basis for minimum
> cooperation and working together as we go forward. In this regard, it is
> important to recognise that for good or bad, or maybe that is just some
> unique characteristics of a civil society space which is both in the
> making in some way, and otherwise unique in some other ways, political
> divisions have been especially deep within the IG civil society space.
> (The reasons for this are structural, although repeated efforts are made
> to lay the blame on individual behavioural causes, and thus escape the
> real political basis of the differences .)  I know that these things are
> not unknown in other areas, but still - stated very roughly - a better
> mainstream conception of civil society is generally obtainable in other
> areas. All these characteristics of the IG civil society space make
> instituting some basic transparency guidelines - on a voluntary basis -
> important for healthy development of civil society in the IG area, whose
> political role in the emerging digitally-mediated society is going to be
> extremly important. This should be a common commitment to ourselves, in
> all humility with regard to the increasingly important political role
> that civil society in the IG space plays.
> 
> parminder 
> 
>>
>> While it makes sense to demand accountability from organizations
>> involved in the top levl of international advocacy, there are too many
>> situations in the world where this could mean another additional and
>> unfair request, on top of the many requests of regular reports that
>> most countries have to grant incorporation. Demanding more from CSOs
>> when neither governments nor corporations have to meet similar
>> requirements seems unfair to me. But maybe it makes sense to have a
>> list explaining wether the members are incporprated, where and under
>> what title (for profit, non-profit, etc) and affilitiaons to networks
>> or institutions they want to declare or wether it is an individual or
>> an informal grouping. Do remember that it is an human right (right to
>> association) to form groups of any kind, and they are (or should be)
>> deemed as "innocent" until proven guilty. Too many states turn the
>> table around and presume that associations are illegal until they
>> register and demonstrate they are "clean". We should not unwillingly
>> support that trend.
>>
>> best,
>> Roberto
>>
>>
>> On Sun, Jun 7, 2015 at 4:20 AM, Michael Gurstein <gurstein at gmail.com
>> <mailto:gurstein at gmail.com>> wrote:
>>
>>     Ian and all,
>>
>>      
>>
>>     The reason why there is a request for disclosure is so as to know
>>     the background or context from which opinions/positions/actions
>>     emerge.  It is the same argument I think, as that concerning real
>>     identity vs. anonymity as per the current Facebook controversy. It
>>     is an extremely useful and in some cases essential item of
>>     information to know who (the identity) it is that one is
>>     interacting with.
>>
>>      
>>
>>     My own feeling on the issue is that unless there are strong and
>>     persuasive arguments in favour of anonymity then knowing the
>>     “identity” of who (or what) ever one is interacting with is a
>>     basic requirement. I don’t know that it has ever been an issue in
>>     our various IG discussions but if it did arise my guess is that
>>     most would opt for people using their “real” names/identities for
>>     their contributions.
>>
>>      
>>
>>     If the above is the case then I think that by extension we can
>>     give some content to what we mean by “real identity”. 
>>
>>      
>>
>>     To some degree the components of the “real identity” required for
>>     effective communication/interaction will vary from context to
>>     context—for romantic purposes age, appearance, gender would likely
>>     be necessary; for financial contexts formal elements as might be
>>     required or contracts such as citizenship, financial and credit
>>     information are part of that “real identify”. 
>>
>>      
>>
>>     I would argue that in our IG context “real identity” should
>>     include a knowledge of the financial/contractual contexts (i.e.
>>     who is paying the piper) from which individual participation is
>>     being presented.
>>
>>      
>>
>>     M
>>
>>      
>>
>>     *From:*bestbits-request at lists.bestbits.net
>>     <mailto:bestbits-request at lists.bestbits.net>
>>     [mailto:bestbits-request at lists.bestbits.net
>>     <mailto:bestbits-request at lists.bestbits.net>] *On Behalf Of *Ian Peter
>>     *Sent:* June 7, 2015 6:03 AM
>>     *To:* parminder; governance at lists.igcaucus.org
>>     <mailto:governance at lists.igcaucus.org>; BestBitsList;
>>     Forum at Justnetcoalition. Org; A general information sharing space
>>     for the APC Community.
>>     *Subject:* Re: [bestbits] [governance] Civil society transparency
>>
>>      
>>
>>     Hi Parminder,
>>
>>      
>>
>>     Following from the discussion, here is what I think is possible
>>     and realistic in this space.
>>
>>      
>>
>>     Firstly, I think the question of transparency and disclosure of
>>     conflicts of interest is important.
>>
>>      
>>
>>     However, I don’t think people need to declare interests to involve
>>     themselves in discussion here or in any of our open mailing lists,
>>     and the real concerns start to arise only when people are seeking
>>     office as civil society representatives.
>>
>>      
>>
>>     Here, most of the office bearing exists in the various coalitions
>>     – APC, Best Bits, JNC, NCSG, IGC. I would urge each of these
>>     groups, when holding elections, to require candidates to register
>>     any conflicts of interest. I know Best Bits is moving to elections
>>     for its Steering Committee again soon, perhaps it could formulate
>>     some sort of basic disclosure requirement for its purposes? And I
>>     guess JNC must be moving towards holding its first elections for
>>     SC replenishment soon?  And IGC could easily add such a
>>     requirement for its candidates for co cordinator elections
>>     (presumably late this year).
>>
>>      
>>
>>     But these are requirements for individual groups, and the form of
>>     such is for each group to determine. I think however that such a
>>     requirement would be a good idea.
>>
>>      
>>
>>     As regards CSCG – our calls for candidates are for appointments to
>>     outside bodies, and I agree that some form of disclosure of any
>>     conflicts of interest would be a good idea. Currently it would
>>     appear that our next task would be MAG replenishment (and a small
>>     one at that), probably early next year. I will suggest to the
>>     members that we should require some sort of basic disclosure
>>     statement. But that of course is up to the members (APC, BB, JNC,
>>     NCSG, IGC) to determine.
>>
>>      
>>
>>     I’m not sure we can go much further. But if some work can be done
>>     on a simple model of a form of disclosure, that would be good.
>>
>>      
>>
>>     Ian Peter
>>
>>      
>>
>>     *From:*parminder <mailto:parminder at itforchange.net>
>>
>>     *Sent:*Sunday, May 24, 2015 5:31 PM
>>
>>     *To:*Ian Peter <mailto:ian.peter at ianpeter.com> ;
>>     governance at lists.igcaucus.org
>>     <mailto:governance at lists.igcaucus.org> ; BestBitsList
>>     <mailto:bestbits at lists.bestbits.net> ;
>>     mailto:forum at justnetcoalition.org ; A general information sharing
>>     space for the APC Community. <mailto:apc.forum at lists.apc.org>
>>
>>     *Subject:*[governance] Civil society transparency
>>
>>      
>>
>>     Ian, and reps of civil society networks on the Civil Society
>>     Coordination Group (CSCG) ,
>>
>>     I propose that CSCG sets up a civil society transparency project,
>>     somewhat on the lines of the EU Transparency Register, pl see
>>     http://ec.europa.eu/transparencyregister/public/homePage.do .
>>
>>     It should in fact go beyond the EU initiative which is a general
>>     one for all lobbying groups, whereas we here are concerned with
>>     civil society which should set the highest example of transparency
>>     and accountability. The 'register' can have self filled
>>     information on objectives of an organisation, principles followed
>>     by it, if any, its funding, partners, and so on....
>>
>>     This is at present just my proposal, but I hope one or more civil
>>     society networks in the IG space can own it and push it... CSCG
>>     would be well placed to run this project as a neutral space so
>>     that there is no accusation of bias that any such initiative is
>>     being employed for partisan purposes. In any case, a simple
>>     initiative for openness, transparency and accountability can
>>     hardly be partisan.
>>
>>     The register can have optional higher level features whereby a
>>     group/ org can declare its means of public accountability, whether
>>     and how its internal governance is done, how matters can be taken
>>     by with their oversight bodies, like board etc, and whether they
>>     have any means whereby they respond to public question on their
>>     work, etc.
>>
>>     For such genuine cases where such transparency can harm an
>>     organisations work, or security, such organisations, and only such
>>     organisations, can be exempted employing a clear process and set
>>     of criteria.
>>
>>     Remember, both the UN report on improvements to the IGF and the
>>     NetMundial Statement highlight the issue of transparency. I also
>>     recently read in these lists how we should make bridges with the
>>     OpenGov movement which is almost wholly about this one thing. Time
>>     we begin practising what we preach.
>>
>>     I look forward to hear responses to this proposal..
>>
>>     parminder
>>
>>     ------------------------------------------------------------------------
>>
>>     ____________________________________________________________
>>     You received this message as a subscriber on the list:
>>          governance at lists.igcaucus.org
>>     <mailto:governance at lists.igcaucus.org>
>>     To be removed from the list, visit:
>>          http://www.igcaucus.org/unsubscribing
>>
>>     For all other list information and functions, see:
>>          http://lists.igcaucus.org/info/governance
>>     To edit your profile and to find the IGC's charter, see:
>>          http://www.igcaucus.org/
>>
>>     Translate this email: http://translate.google.com/translate_t
>>
>>
>>     _______________________________________________
>>     Forum mailing list
>>     Forum at justnetcoalition.org <mailto:Forum at justnetcoalition.org>
>>     http://mail.justnetcoalition.org/listinfo/forum
>>
>>
> 
> 
> 
> ____________________________________________________________
> You received this message as a subscriber on the list:
>      bestbits at lists.bestbits.net.
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From kichango at gmail.com  Sun Jun  7 04:58:06 2015
From: kichango at gmail.com (Mawaki Chango)
Date: Sun, 7 Jun 2015 08:58:06 +0000
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <557378D2.6030503@cafonso.ca>
References: <557378D2.6030503@cafonso.ca>
Message-ID: <CACTo+v_kgddFK7Op5bsGTXq4nO-2nmaxN_SBs0xdHbo5-=v31A@mail.gmail.com>

Brother Carlos,

I wish we had this earlier, for it would've made the job easier for some of
us who could have just submitted "we endorse the Brazilian government's
comment" as our comment.

I particularly appreciate the BR gov clear argument about legal status and
jurisdiction, including the stated purposes of such argument. The way ICANN
has been operating has always created a sense of unease wrt governments'
full participation, something that has to do with a sense of slippery slope
toward government privatization, whether intended or an afterthought (I
once personally witnessed within ICANN a US allied government rep from the
Pacific cast a vote that was in contradiction with the law in her country.)
If multi-stakeholder were to mean something, the meaning of the term
"private" in this context should be clearly differentiated from that of
saying, for instance, "private (profit driven) corporation"* and should
rather clearly, fully and once for all in practice mean "public-benefit
(private) corporation."

Furthermore, maybe "in their respective roles" should just mean that every
group come as who they are at first (in continuation/line with their
defining functions) and then enter a dialog that is open and plural across
stakeholder groups, where all ideas will be argued and heard for their
merits (intellectual, operational, yes political, etc. etc.) This may still
happen without governments needing to behave as private companies or
non-governmental actors claiming to fulfill governments' functions.

Ok let me just stop here and say I, for whatever this may be worth, approve
of BR gov message. (Never mind my ill advised, additional drift on
multistakeholderism.) A systematic assessment of the pluses and minuses of
each potential candidate jurisdictions for ICANN mission and global
ownership is a must to fully complete the goals of its transition.

Fraternal regards

(*) Note, 1) such can evidently be for profit but not necessarily: one may
be a nonprofit private entity and still be driven by for profit interests,
as their processes may be dominated by for profit participants. 2) I do
understand how the term "private" is often used by US based stakeholders in
this context, as to mean NONgovernmental. While there is that constant risk
of confusion with the other meaning of "private" (one may say 'private' is
tainted by the for profit corporate use), there is on the other hand the
fact that the term "nongovernmental" is already... tainted by the bunch of
civil society ;) So tainted for tainted, the US led in that by USG has
favored the use of the term "private." Doesn't this ring a bell?
'International,' 'multilateral' and (even) 'democratic' tainted by
'intergovernmental' practices? So let's stay away from those and find
something as "private" as meant above but at the same time plural and that
gave 'multistakeholderism'? Again, please get back to the central message
above and never mind my extra drift. Just store that in the Sunday morning
hermeneutics drawer.

/Brought to you by Mawaki's droid agent
On Jun 6, 2015 10:49 PM, "Carlos A. Afonso" <ca at cafonso.ca> wrote:

> For the ones who are following the IANA transition process: attached
> please find the comments posted by the government of Brazil on June 03,
> 2015, in response to the call for public comments on the
> CCWG-Accountability Initial Draft Proposal.
>
> I generally agree with the comments.
>
> fraternal regards
>
> --c.a.
>
> ____________________________________________________________
> You received this message as a subscriber on the list:
>      bestbits at lists.bestbits.net.
> To unsubscribe or change your settings, visit:
>      http://lists.bestbits.net/wws/info/bestbits
>
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From parminder at itforchange.net  Sun Jun  7 05:58:11 2015
From: parminder at itforchange.net (parminder)
Date: Sun, 07 Jun 2015 15:28:11 +0530
Subject: [governance] [bestbits] IANA transition - BR Gov comments on
 the CCWG-Accountability Draft Proposal
In-Reply-To: <CACTo+v_kgddFK7Op5bsGTXq4nO-2nmaxN_SBs0xdHbo5-=v31A@mail.gmail.com>
References: <557378D2.6030503@cafonso.ca> <CACTo+v_kgddFK7Op5bsGTXq4nO-2nmaxN_SBs0xdHbo5-=v31A@mail.gmail.com>
Message-ID: <557415B3.3070609@itforchange.net>



On Sunday 07 June 2015 02:28 PM, Mawaki Chango wrote:
>
> Brother Carlos,
>
> I wish we had this earlier, for it would've made the job easier for
> some of us who could have just submitted "we endorse the Brazilian
> government's comment" as our comment.
>

Mawaki/ Carlos

I am happy to assist you to seek support for this position in civil
society. Perhaps IGC can endorse it. Further, we can collect names of
those who separately would like to endorse it.

> I particularly appreciate the BR gov clear argument about legal status
> and jurisdiction, including the stated purposes of such argument.
>

The argument that US courts overruling ICANN decision (something that is
inescapable, and will certainly happen sooner or later) is 'the' key
problem and issue in oversight transition and that such an eventuality
would make a mockery of ICANN as a global governance body, has regularly
been made on this list - along with examples. But good to be waking up
to it even if only when we are fully on the brink - but still, better
late than never.

This issue is indeed fully unsolvable in the current process and in the
current 'paradigm'  - it would be good to also clearly see and
understand this further fact. And there from begin doing what needs to
be done. It is not useful to always wait for arriving on the brink and
then realising. Just wastes a lot of time, and time is power in what is
a fast concretizing global digital order.

parminder 

> The way ICANN has been operating has always created a sense of unease
> wrt governments' full participation, something that has to do with a
> sense of slippery slope toward government privatization, whether
> intended or an afterthought (I once personally witnessed within ICANN
> a US allied government rep from the Pacific cast a vote that was in
> contradiction with the law in her country.) If multi-stakeholder were
> to mean something, the meaning of the term "private" in this context
> should be clearly differentiated from that of saying, for instance,
> "private (profit driven) corporation"* and should rather clearly,
> fully and once for all in practice mean "public-benefit (private)
> corporation."
>
> Furthermore, maybe "in their respective roles" should just mean that
> every group come as who they are at first (in continuation/line with
> their defining functions) and then enter a dialog that is open and
> plural across stakeholder groups, where all ideas will be argued and
> heard for their merits (intellectual, operational, yes political, etc.
> etc.) This may still happen without governments needing to behave as
> private companies or non-governmental actors claiming to fulfill
> governments' functions.
>
> Ok let me just stop here and say I, for whatever this may be worth,
> approve of BR gov message. (Never mind my ill advised, additional
> drift on multistakeholderism.) A systematic assessment of the pluses
> and minuses of each potential candidate jurisdictions for ICANN
> mission and global ownership is a must to fully complete the goals of
> its transition.
>
> Fraternal regards
>
> (*) Note, 1) such can evidently be for profit but not necessarily: one
> may be a nonprofit private entity and still be driven by for profit
> interests, as their processes may be dominated by for profit
> participants. 2) I do understand how the term "private" is often used
> by US based stakeholders in this context, as to mean NONgovernmental.
> While there is that constant risk of confusion with the other meaning
> of "private" (one may say 'private' is tainted by the for profit
> corporate use), there is on the other hand the fact that the term
> "nongovernmental" is already... tainted by the bunch of civil society
> ;) So tainted for tainted, the US led in that by USG has favored the
> use of the term "private." Doesn't this ring a bell? 'International,'
> 'multilateral' and (even) 'democratic' tainted by 'intergovernmental'
> practices? So let's stay away from those and find something as
> "private" as meant above but at the same time plural and that gave
> 'multistakeholderism'? Again, please get back to the central message
> above and never mind my extra drift. Just store that in the Sunday
> morning hermeneutics drawer.
>
> /Brought to you by Mawaki's droid agent
>
> On Jun 6, 2015 10:49 PM, "Carlos A. Afonso" <ca at cafonso.ca
> <mailto:ca at cafonso.ca>> wrote:
>
>     For the ones who are following the IANA transition process: attached
>     please find the comments posted by the government of Brazil on
>     June 03,
>     2015, in response to the call for public comments on the
>     CCWG-Accountability Initial Draft Proposal.
>
>     I generally agree with the comments.
>
>     fraternal regards
>
>     --c.a.
>
>     ____________________________________________________________
>     You received this message as a subscriber on the list:
>          bestbits at lists.bestbits.net <mailto:bestbits at lists.bestbits.net>.
>     To unsubscribe or change your settings, visit:
>          http://lists.bestbits.net/wws/info/bestbits
>
>
>
> ____________________________________________________________
> You received this message as a subscriber on the list:
>      bestbits at lists.bestbits.net.
> To unsubscribe or change your settings, visit:
>      http://lists.bestbits.net/wws/info/bestbits

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From parminder at itforchange.net  Sun Jun  7 07:10:37 2015
From: parminder at itforchange.net (parminder)
Date: Sun, 07 Jun 2015 16:40:37 +0530
Subject: [governance] [bestbits] IANA transition - BR Gov comments on
 the CCWG-Accountability Draft Proposal
In-Reply-To: <557378D2.6030503@cafonso.ca>
References: <557378D2.6030503@cafonso.ca>
Message-ID: <557426AD.1000409@itforchange.net>

Dear Carlos

I very much agree with Brazil's position and congratulate it for it.
BTW, India has also made somewhat similar comments. The key points of
agreement are on what are two most important issues - need for
international jurisdiction, and accountability to the larger global
public rather than just the groups which are currently closely engaged
with ICANN, which can be called as 'external accountability' as against
'internal accountability'.

Having agreed with Brazil's position, I must state that the issues that
Brazil is raising now have always been clear, and are the basic ones in
the oversight transition process. It has been equally obvious, almost
right from the start, but at least very soon after, that these key
issues will be ignored. It was therefore important to push these issues
right to the front, and make it clear that these are non negotiable, and
also gather support among other groups for this position.

What I find strange among the key groups/ orgs that can be expected to
come from a 'progressive' standpoint - key governments, including I
would have hoped the EU, but certainly the larger developing ones, and
key civil society groups, is that they have been so shy to say upfront
what is indeed non negotiable that an impression is allowed to go around
that while there is indeed some limited discontent, and any such process
would have some, there is a level of general agreement being built going
forward. Such shyness or reticence among 'progressive' actors does the
cause a lot of harm. How else could the process, after having been
listening (or perhaps not)  to all key actors during the WG process,
still come up with the current proposal. One advisor to the process has
publicly claimed that most advisers considered 'jurisdiction' as a key
issue, and one can be sure that the countries that are now making
statements on this issue would have done the same in the WG process. How
then does the proposal put up for comments make no mention of
jurisdiction issue at all, nor of external accountability?

The answer is simple: the process is rigged to produce outcomes that
satisfy US government (even beyond the 4 initial conditions that it laid
- do note, continued US jurisdiction is not one of them) and, as a
secondary complicit group, the ICANN plus insiders, who have varying
shades of loyalty to the ICANN system, but when push comes to shove they
are excepted to all agree on structural issues and work as one. There
simply can be no other outcome. One does not need to wait till September
to know this.

There is no question that the issue of US jurisdictional immunity (only
possible through incorporation of ICANN under international law) will be
considered in the right earnest. In fact, I dont see even opening up of
the issue of 'external accountability'. So, the die is more or less cast.

Somewhat oddly, while clearly asking for immunity from US jurisdiction
at several places in their response document, Brazil government is still
shy to say the obvious, that this is possible only under international
law, which can only be written by a due international process. Or do the
Brazilians know of some other manner in which immunity from jurisdiction
from country of incorporation can be obtained? One can well take a broad
multi-stakeholder approach to evolve a basic charter for the ICANN, but
to make it international law it has to follow due process. In default,
it can never provide what Brazil government seeks in numerous places in
the document. Of course they know it, but the shyness and reticence -
maybe still a NetMundial hangover - in inexplicable. I hope Brazil gov
clarifies its position in this regard, or anyone else who understands
their current thinking might do it.

This thing has to go to WSIS plus 10, whose negotiations start this
month. It is no use to bungle once again and wait too long till after
the WSIS plus 10 opportunity is also lost. One has to gather support
from key nations, including the EU... While some progress could perhaps
be forced at WSIS plus, it may not be so easy, for so long have various
actors been all over the place that putting the act together in this
short period can be extremely difficult.

In any case, US would not give way easily, especially since it has begun
believing for quite some time now, certainly over the last year, that it
has got itself into a good position and successfully divided the
opposition, into a hopeless mess. So while one must try to get what one
can at WSIS plus 10, the rest would need to be forced through developing
coalitions of digital economic and political power which alone can make
US come to the global negotiation table. Currently, it simply does not
have enough incentive to do it.

parminder 


On Sunday 07 June 2015 04:18 AM, Carlos A. Afonso wrote:
> For the ones who are following the IANA transition process: attached
> please find the comments posted by the government of Brazil on June 03,
> 2015, in response to the call for public comments on the
> CCWG-Accountability Initial Draft Proposal.
>
> I generally agree with the comments.
>
> fraternal regards
>
> --c.a.
>
>
> ____________________________________________________________
> You received this message as a subscriber on the list:
>      bestbits at lists.bestbits.net.
> To unsubscribe or change your settings, visit:
>      http://lists.bestbits.net/wws/info/bestbits

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From Guru at ITforChange.net  Sun Jun  7 13:13:09 2015
From: Guru at ITforChange.net (Guru)
Date: Sun, 07 Jun 2015 22:43:09 +0530
Subject: [governance] Who rules cyberspace?
Message-ID: <55747BA5.30606@ITforChange.net>

An op-ed by Parminder in Hindu, a leading Indian daily highlighting 
structural geo-political and geo-economics issues of IG, and the need 
for new alignments that can disrupt the increasingly more powerful and 
more uni-polar networked-digital complex centred in the US.

regards,
Guru

http://www.thehindu.com/todays-paper/tp-opinion/who-rules-cyberspace/article7287716.ece
Who rules cyberspace?
Parminder Jeet Singh

A new architecture of social power and control is getting built with its 
core in the U.S.India should work through the BRICS group to develop an 
alternative to this Internet hegemony

The Internet evokes a deep dilemma of whether ‘to govern or not’. Few 
things work as well as the Internet does: it’s always on, always 
obliging, and consists of endless possibilities, routinely conjuring 
wonders that we have not dreamt of. On the other hand, it is difficult 
not to be troubled by how the Internet is everywhere, but without any 
clear means of accountability and political reaction to how much it is 
changing around us. But without sufficient clarity regarding the nature 
of the problems and the required solutions, mere general political 
scepticism cannot hold a candle to the populist 
governmental-hands-off-the-Internet sentiment. The latter is expectedly 
strongest among the richer classes, who trust the devices of the market 
to get the Internet to do their bidding. Other than routine knee-jerk 
reactions over people freely expressing themselves on the Internet, 
which could threaten various kinds of power elites, while also sometimes 
causing genuine security and cultural concerns, there exists no serious 
political conceptions around the Internet in India today, much less its 
appropriate governance in public interest.

This state of affairs is quite detrimental to society as the Internet is 
becoming closely associated with social power and control in almost all 
areas. It has become like a global neural system running through and 
transforming all social sectors. Whoever has control over this neural 
network begins to wield unprecedented power — economic, political, 
social and cultural. Two elements of this emerging system are the 
connectivity architecture and the continuous bits of information 
generated by each and every micro activity of our increasingly digitised 
existence — what is generally known as Big Data. Even a superficial scan 
of how the triple phenomenon of digitisation, networking and 
datafication is occurring in every area will suggest the nature of 
consolidation of power in the hands of anyone who can control these two 
elements.

Every sector is impacted

Take the agriculture sector for example. Monsanto is now increasingly a 
Big Data company, as it holds almost field-wise micro information on 
climate, soil type, neighbourhood agri-patterns, and so on. Such data 
will form the backbone of even its traditional agri-offerings. It is 
easy to understand how data control-based lock-ins are going to be even 
more powerful and monopolistic than the traditional dependencies in this 
sector. Recently, John Deere, the world’s largest agricultural machinery 
maker, told the U.S. Copyright Office that farmers don’t own their 
tractors. Because computer code runs through modern tractors, farmers 
receive “an implied license for the life of the vehicle to operate the 
vehicle”. There is a pattern of end-to-end informational controls.

Similar developments are occurring in every other sector. Policymaking 
and governance are becoming dangerously dependent on Big Data, even as 
the public sector is all but giving up its traditional responsibilities 
for public statistics. The state is increasingly dependent on data 
collected and controlled by a few global corporations. Data companies 
such as Google are entering verticals like automobile and health in a 
manner that is threatening the traditional players in these sectors. 
Doctors subscribing to medical information networks carrying patient 
data, disease demographics, pharma information, and so on could soon 
become but appendages of the network. The network they think right now 
is a mere support may become the primary agent in the relationship. Such 
is the power of the network, vis-a-vis its peripheral users. Network and 
data providers in the education sector sell their services in the name 
of personalised offerings for every student, and every context. Schools 
with resources may find them alluring, but then they merely add to the 
power of the monopolistic networks, at the expense of their peripheral 
users. As their power consolidates, so do the terms of engagements 
mutate in the favour of the network controllers.

Here we have deliberately used examples of power shifts across whole 
sectors induced by digital networks. On the individual-use front, it is 
perhaps even easier to see the kind of social power exercised by those 
who can at will alter the algorithms of Facebook and Google, which 
increasingly provide us the logic and pattern of our social 
relationships and of means of accessing information and opinion making.

All this should set us thinking about who really controls the digital 
connectivity patterns and Big Data. In this regard, one can speak of a 
global unipolar networked-digital complex, with its elements of 
political and commercial power, both overwhelmingly concentrated in the 
U.S..

We are therefore witness to a phenomenon which is of extreme social 
importance, spanning all sectors of society. And the powerful levers of 
control of this phenomenon almost entirely lie in an eco-political 
domain over which the Indian society or state has no control, and very 
limited influence. This should be a public policy nightmare. However, 
you would not suspect it if you were watching the political discourse in 
India, not only inside the government but also outside. One comes across 
periodic discussions on freedom of expression issues, while the state, 
and some civil society actors, have begun to show heightened 
security-related anxieties. But one hears nothing about the overall new 
architecture of social power and control that is getting built, with its 
core in the U.S. It implicates very significant long-term economic, 
political, social and cultural issues that should greatly concern a 
country like India. Even freedom of expression and security are 
significantly related to this new power architecture.

Governments are traditionally slow on the take with regard to such 
rapidly moving phenomena, however socially important they might be. 
Civil society engagement in this area is dominated by middle class 
interests, whereby markets tend to be considered as essentially benign. 
Their major struggle is against the excesses of the state, the Internet 
no doubt being a significant new arena for such excesses. This has 
resulted in serious blind-spots regarding the larger architectural 
issues about the global Internet, with far-reaching economic, social and 
cultural implications. It is urgently required to undertake a systematic 
examination of these issues, situating them in the geo-political and 
geo-economic logics that overwhelmingly drive them. Appropriate domestic 
and foreign policies have to be developed within such a larger 
understanding.

India’s geopolitical options

Even for a country of India’s stature, it is not easy to play the 
geo-political game on its own, and certainly not in an area viewed by 
the dominant actors as among the most crucial for establishing global 
political and economic domination. No quarters will be given here, as 
has been clear from the pronounced non-activity in the limited UN-based 
global forums dealing with Internet governance issues. This, therefore, 
is not a field for the faint-hearted; it requires strong real politik 
approaches.

The only option left for India is to go with the strong nations that are 
similarly placed with respect to U.S.’s digital hegemony. Although this 
is one area where the EU countries are almost as much the victims as 
other countries, it is unlikely that they will break their geo-political 
alliance with the U.S. any time soon. They would either keep suffering 
silently, or seek solutions at the bilateral level with the U.S., and 
through strengthening EU level regulation. Just last month, the economic 
ministers of Germany and France sought a “general regulatory framework 
for ‘essential digital platforms’” at the EU level.

India should work through the BRICS group (Brazil, Russia, India, China 
and South Africa) to develop an alternative to the U.S.-based global 
unipolar networked-digital complex. This may be the only viable path 
right now. It could be difficult for BRICS to work together on issues 
involving civil and political rights, for which reason the cooperation 
could focus on economic issues. The global architecture of the Internet 
today is mostly determined by its geo-economic underpinnings.

Going beyond the typical one-off treatment of Internet and big data 
issues, BRICS must begun to see them in a larger geo-systemic framework. 
The last BRICS summit gave a resounding response to the global financial 
hegemonies by setting up a New Development Bank, and an alternative 
reserve currency system. The next BRICS summit in Ufa, Russia, in July 
2015 should come up with a similar systemic response to the U.S.-centred 
Internet. This can be achieved by pulling together a strong framework 
for BRICS cooperation on digital economy. That would be the biggest game 
changer with respect to what is now a complete stalemate over global 
governance of the Internet.

(Parminder Jeet Singh works with the Bengaluru-based NGO, IT for Change. 
He has been an advisor to the Chair of the United Nations Internet 
Governance Forum. Email:parminder at itforchange.net)





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From arunmohan.s at gmail.com  Mon Jun  8 01:50:37 2015
From: arunmohan.s at gmail.com (Arun Mohan Sukumar)
Date: Mon, 8 Jun 2015 11:20:37 +0530
Subject: [governance] ICANN Accountability draft proposal posted for
 public comments
In-Reply-To: <CAHyAo0FAnVvoTCOCCiBmFHPCGwP5y4=XhFUfLJg5vyMHTSq4Gw@mail.gmail.com>
References: <CAHyAo0FAnVvoTCOCCiBmFHPCGwP5y4=XhFUfLJg5vyMHTSq4Gw@mail.gmail.com>
Message-ID: <00103E24-0ED1-468C-8AAA-99C1E77FA84E@gmail.com>

Hi Siva,

Just missed you outside the Argentinian embassy! Could I ask you for leads on a Spanish translator? How did you manage it?

Best
Arun

Sent from my iPhone

@arunmsukumar
Senior Fellow, Centre for Communication Governance
National Law University, Delhi
http://amsukumar.tumblr.com 
Ph:+91-9871943272

> On 05-May-2015, at 5:50 pm, Sivasubramanian M <isolatedn at gmail.com> wrote:
> 
> Hello
> 
> Public Comments open on the CCWG Accountability draft proposal
> 
> ​https://www.icann.org/public-comments/ccwg-accountability-draft-proposal-2015-05-04-en
> 
> 
> Sivasubramanian M
> 
> 
> ____________________________________________________________
> You received this message as a subscriber on the list:
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From isolatedn at gmail.com  Mon Jun  8 02:03:04 2015
From: isolatedn at gmail.com (Sivasubramanian M)
Date: Mon, 8 Jun 2015 11:33:04 +0530
Subject: [governance] ICANN Accountability draft proposal posted for
 public comments
In-Reply-To: <00103E24-0ED1-468C-8AAA-99C1E77FA84E@gmail.com>
References: <CAHyAo0FAnVvoTCOCCiBmFHPCGwP5y4=XhFUfLJg5vyMHTSq4Gw@mail.gmail.com>
	<00103E24-0ED1-468C-8AAA-99C1E77FA84E@gmail.com>
Message-ID: <CAHyAo0GXoaFKC0ZnQ_Se-iVeRN--9vL2+0rSG6kOqhse+t_Y=g@mail.gmail.com>

Dear Arun


Felt good meeting you outside the Embassy. If it suits you and Chinmayee,
would very much like to meet you at a time convenient.


Thank you
Sivasubramanian M
99524 03099

Sivasubramanian M <https://www.facebook.com/sivasubramanian.muthusamy>

On Mon, Jun 8, 2015 at 11:20 AM, Arun Mohan Sukumar <arunmohan.s at gmail.com>
wrote:

> Hi Siva,
>
> Just missed you outside the Argentinian embassy! Could I ask you for leads
> on a Spanish translator? How did you manage it?
>
> Best
> Arun
>
> Sent from my iPhone
>
> @arunmsukumar <http://www.twitter.com/arunmsukumar>
> Senior Fellow, Centre for Communication Governance
> <http://www.ccgdelhi.org/>
> National Law University, Delhi
> http://amsukumar.tumblr.com
> Ph:+91-9871943272
>
> On 05-May-2015, at 5:50 pm, Sivasubramanian M <isolatedn at gmail.com> wrote:
>
> Hello
>
> Public Comments open on the CCWG Accountability draft proposal
>
> ​
>
> https://www.icann.org/public-comments/ccwg-accountability-draft-proposal-2015-05-04-en
>
>
> Sivasubramanian M <https://www.facebook.com/sivasubramanian.muthusamy>
>
>
>  ____________________________________________________________
> You received this message as a subscriber on the list:
>     governance at lists.igcaucus.org
> To be removed from the list, visit:
>     http://www.igcaucus.org/unsubscribing
>
> For all other list information and functions, see:
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From LB at lucabelli.net  Mon Jun  8 09:05:00 2015
From: LB at lucabelli.net (LB at lucabelli.net)
Date: Mon, 08 Jun 2015 06:05:00 -0700
Subject: [governance] REMINDER: Conference on Net Neutrality Rulemaking
Message-ID: <20150608060500.2700328f4bbfc197480209526f2a1375.e80479374b.wbe@email07.europe.secureserver.net>

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From pranesh at cis-india.org  Mon Jun  8 10:57:31 2015
From: pranesh at cis-india.org (Pranesh Prakash)
Date: Mon, 08 Jun 2015 16:57:31 +0200
Subject: [governance] Civil society transparency
In-Reply-To: <5573DB86.5080001@itforchange.net>
References: <55617E51.5010901@itforchange.net> <41C19523561A4A5CA29EF6368B4F5AA5@Toshiba> <5573DB86.5080001@itforchange.net>
Message-ID: <5575AD5B.5020800@cis-india.org>

Dear Parminder,
I am at this point unclear what the precised difference between your 
position and Ian's is, for I don't find myself disagreeing much with 
either of you (or Anriette or Roberto).

On "conflict of interest":
This is not an idea from the corporate world.  It existed far before 
that, too.  A judge, for instance, has a conflict of interest if she is 
deciding a case that related to someone close to her.  A political 
figure may have a conflict of interest while making a decision that 
involves a relative.  "Conflict of interest" is an idea that belongs to 
the public sphere and the political sphere as well.  At any rate, this 
is splitting hairs.

On the transparency register:
I support the idea, but I have the following operational questions:
1. Will there be a body that vets the information provided?  If so, how 
will this be funded?
2. Will this be somewhat like the ICANN's CoI form, but with additional 
questions since this is not just about CoI?
3. Do you envisage there being any consequences of someone having been 
funded by a government or a corporation or a religious charity or a 
corporate-funded foundation, etc., on whether someone can be a CS 
representative?  If yes, what kinds of consequences do you envisage?

In essence, I understand the transparency motivations, but I'm very 
unclear what accountability mechanisms are envisaged to accompany it, if 
any.

(Also, while reading Jeremy's point about witch-hunts, keep what's 
happening with Ford Foundation in India in the back of your head.)

Regards,
Pranesh

parminder <parminder at itforchange.net> [2015-06-007 11:19:58 +0530]:
> Ian, thanks for taking this discussion forward.
>
> Firstly, on the matter of to whom the required transparency measures
> should be applicable. I have said this before, this is supposed to be
> voluntary, and individuals merely getting into discussions on civil
> society lists are not important in this regard. It is the civil society
> organisations as well as individuals who get selected as civil society
> reps in various forms, or otherwise play significant roles in civil
> society and multistakeholder spaces, that we mainly focus on. The major
> organisations involved in this area must be subject to basic
> transparency requirements whether or not they take a civil society rep
> position because they in any case very often play very important role in
> policy processes. As you would have seen, unfortunately, a lot of strong
> civil society action is currently taking place away from the key
> coalitions that you mention.
>
> (On the other hand, I dont see why any individual just coming into some
> IG discussion on civil society lists would be taking any IG related
> funding at all - I mean what would s/he take it for - for spending time
> on these lists!? (That btw would be most interesting - but then we know
> that some big governments have paid people intervening in the cyber -
> public sphere as a new form of public propaganda.) So, I fail to
> understand why is this discussion focussing on individuals merely
> participating in the list discussions - they can simply ignore the
> proposed voluntary register, or enter that they take no IG activities
> related funding from anyone, as one would expect to be true for most of
> them. But then well, if individuals do take clear IG related funding,
> say, as travel grants, occasional writings. and so on, I would think it
> is necessary to declare that - perhaps even morethan in case of
> organisations, who, unlike individuals, mostly - though not always -
> have other forms of additional NGO governance checks. But to repeat, my
> proposal has a greater primary focus on involved organisations as
> against individuals. )
>
> Next, about what kind of transparency measures are appropriate.
> 'Conflict of interest' is used more in corporate governance and we,
> civil society people, would best stick to higher norms of public life
> rather than go by corporate governance norms. The later are necessarily
> limited and have a different nature. For instance, conflict of interest
> will apply to someone who holds the shares of a company but then gets
> involved in a governance decision that impacts the bottomline of that
> company. Things really do not work like that in public life, where
> transparency and accountability have a very different - much higher but
> accordingly also diffuse  - meaning and implication. The 'public' part
> of 'public life' is very important - and as civil society players we are
> in public life, in fact in its rather powerful 'political life' part. In
> stating a conflict of interest a person takes a private decision about
> oneself and one's state of affair (of course, the decision can become
> public in case of accusations, some future crisis, and so on).
> Transparency of people in public life requires such judgements to made
> /by the public/, and /at all times/. That is of essence. Sorry, that one
> has to go into such basic canons of public life, which have a long
> history and much better enunciations than I can attempt here.
>
> It is or this reason that simple conflict of interest statement while it
> may serve the limited scope of requirements of corporate governance,
> does not satisfy the public requirements of public life, especially as
> involving those actors who are involved in public governance, as IG
> civil society certainly is.
>
> To make this discussion more concrete; youd agree that we should get
> into instituting a process only if it has any real meaning in terms of
> practical implications. So I ask you, lets say that an organisation or
> an individual were receiving funding from government of India or from
> Google - and is involved in the typical IG related activities; please
> provide me an instance of likely case in which that organisation/
> individual will self declare a conflict of interest. I cant think of
> many such possible instances - policy work is by its very nature diffuse
> and almost everyone is, by the very nature of it being public policy,
> impacted - some certainly more than the other, but private judgements of
> such impact would hardly be useful. It is not that IGF or an IG
> governance body is ever going to make a declaration specifically on govt
> of India or google, in which kind of case perhaps one may jump to state
> a funding conflict. In fact, one still may not, becuase typically any
> org will accept funding only in the name of promoting public interest
> and would not want to accept that pushing a public policy discussion or
> process in one way or the other actually constitutes a 'conflict of
> interest' - in that it would not want to admit that in accepting a
> funding it had accepted taking on 'an interest'. That is a fundamental
> difference in how a civil society org is constitutes, as against a
> lobbying body. For all these reasons, conflict of interest is not a
> concept suited for civil society transparency and accountability. Your
> proposal for "require(ing) candidates to register any conflicts of
> interest" would simply result in all candidates saying 'they have no
> conflict of interest that they can recognise' and thus would serve no
> purpose at all.
>
> Lastly, while you keep on saying this is the most we can do ( 'conflict
> of interest' declaration) you have not given any reason why transparency
> standards often applied in other areas of civil society work should not
> be applied in the IG space as well, and what exactly is wrong with a
> basic voluntary register of transparency simply declaring 'interests,
> objectives, and funding sources'. This even when I have been arguing
> that it is even more important for IG civil society than in other civil
> society areas, because the unique multistakeholder claim and approach in
> this area puts civil society in more significant, even powerful, policy
> positions than in other areas. Also, how basic documents on healthy
> development of a multistakeholder approach like the UN report on IGF
> improvements, NetMundial Statement, etc, all point to need for greater
> transparency. I once again exhort you to read Luca Belli's this
> excellent paper on multistakeholderism
> <http://policyreview.info/articles/analysis/heterostakeholder-cooperation-sustainable-internet-policymaking>
>    which argues why such basic transparency is essential to forwarding a
> multistakeholder approach.
>
> I cant see how IG civil society can keep pushing a multistakeholder
> approach to policy making, and seek a greater role for itself in the
> process, but then keep dragging its feet on accepting even basic
> transparency norms. The world is watching of course, and will ask
> questions. there is a cost to being in public life.
>
> parminder
>
>
> On Sunday 07 June 2015 03:32 AM, Ian Peter wrote:
>> Hi Parminder,
>>
>> Following from the discussion, here is what I think is possible and
>> realistic in this space.
>>
>> Firstly, I think the question of transparency and disclosure of
>> conflicts of interest is important.
>>
>> However, I don’t think people need to declare interests to involve
>> themselves in discussion here or in any of our open mailing lists, and
>> the real concerns start to arise only when people are seeking office
>> as civil society representatives.
>>
>> Here, most of the office bearing exists in the various coalitions –
>> APC, Best Bits, JNC, NCSG, IGC. I would urge each of these groups,
>> when holding elections, to require candidates to register any
>> conflicts of interest. I know Best Bits is moving to elections for its
>> Steering Committee again soon, perhaps it could formulate some sort of
>> basic disclosure requirement for its purposes? And I guess JNC must be
>> moving towards holding its first elections for SC replenishment soon?
>> And IGC could easily add such a requirement for its candidates for co
>> cordinator elections (presumably late this year).
>>
>> But these are requirements for individual groups, and the form of such
>> is for each group to determine. I think however that such a
>> requirement would be a good idea.
>>
>> As regards CSCG – our calls for candidates are for appointments to
>> outside bodies, and I agree that some form of disclosure of any
>> conflicts of interest would be a good idea. Currently it would appear
>> that our next task would be MAG replenishment (and a small one at
>> that), probably early next year. I will suggest to the members that we
>> should require some sort of basic disclosure statement. But that of
>> course is up to the members (APC, BB, JNC, NCSG, IGC) to determine.
>>
>> I’m not sure we can go much further. But if some work can be done on a
>> simple model of a form of disclosure, that would be good.
>>
>> Ian Peter
>>
>> *From:* parminder <mailto:parminder at itforchange.net>
>> *Sent:* Sunday, May 24, 2015 5:31 PM
>> *To:* Ian Peter <mailto:ian.peter at ianpeter.com> ;
>> governance at lists.igcaucus.org <mailto:governance at lists.igcaucus.org> ;
>> BestBitsList <mailto:bestbits at lists.bestbits.net> ;
>> mailto:forum at justnetcoalition.org ; A general information sharing
>> space for the APC Community. <mailto:apc.forum at lists.apc.org>
>> *Subject:* [governance] Civil society transparency
>>
>> Ian, and reps of civil society networks on the Civil Society
>> Coordination Group (CSCG) ,
>>
>> I propose that CSCG sets up a civil society transparency project,
>> somewhat on the lines of the EU Transparency Register, pl see
>> http://ec.europa.eu/transparencyregister/public/homePage.do .
>>
>> It should in fact go beyond the EU initiative which is a general one
>> for all lobbying groups, whereas we here are concerned with civil
>> society which should set the highest example of transparency and
>> accountability. The 'register' can have self filled information on
>> objectives of an organisation, principles followed by it, if any, its
>> funding, partners, and so on....
>>
>> This is at present just my proposal, but I hope one or more civil
>> society networks in the IG space can own it and push it... CSCG would
>> be well placed to run this project as a neutral space so that there is
>> no accusation of bias that any such initiative is being employed for
>> partisan purposes. In any case, a simple initiative for openness,
>> transparency and accountability can hardly be partisan.
>>
>> The register can have optional higher level features whereby a group/
>> org can declare its means of public accountability, whether and how
>> its internal governance is done, how matters can be taken by with
>> their oversight bodies, like board etc, and whether they have any
>> means whereby they respond to public question on their work, etc.
>>
>> For such genuine cases where such transparency can harm an
>> organisations work, or security, such organisations, and only such
>> organisations, can be exempted employing a clear process and set of
>> criteria.
>>
>> Remember, both the UN report on improvements to the IGF and the
>> NetMundial Statement highlight the issue of transparency. I also
>> recently read in these lists how we should make bridges with the
>> OpenGov movement which is almost wholly about this one thing. Time we
>> begin practising what we preach.
>>
>> I look forward to hear responses to this proposal..
>>
>> parminder
>>
>> ------------------------------------------------------------------------
>> ____________________________________________________________
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-- 
Pranesh Prakash
Policy Director, Centre for Internet and Society
http://cis-india.org | tel:+91 80 40926283
sip:pranesh at ostel.co | xmpp:pranesh at cis-india.org
twitter:https://twitter.com/pranesh_prakash

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From suresh at hserus.net  Mon Jun  8 11:14:17 2015
From: suresh at hserus.net (Suresh Ramasubramanian)
Date: Mon, 8 Jun 2015 20:44:17 +0530
Subject: [governance] Civil society transparency
In-Reply-To: <5575AD5B.5020800@cis-india.org>
References: <55617E51.5010901@itforchange.net> <41C19523561A4A5CA29EF6368B4F5AA5@Toshiba> <5573DB86.5080001@itforchange.net> <5575AD5B.5020800@cis-india.org>
Message-ID: <4B7446C1-A8C0-4EB1-AC5E-94256D93F6B2@hserus.net>


> On 08-Jun-2015, at 8:27 pm, Pranesh Prakash <pranesh at cis-india.org> wrote:
> 
> 1. Will there be a body that vets the information provided?  If so, how will this be funded?

Additionally - sed quis custodiet ipsos custodes?  And how do we stop this from becoming a “people’s court” of the pol pot variety?

A normal court operates under a framework of law, and there is a complex interplay of controls between the legislature, executive and judiciary.

Such a body that vets information - especially with the glaring number of trust issues present here - should avoid turning into a fox news / times now panel - “the civil society vetting body wants to know”, Arnab Goswami style?

Arnab is the Bill O’Reilly of Indian “news” channels, for those who have, mercifully, not seen him yet.  If you do want to see him .. https://www.youtube.com/watch?v=8YQ_HGvrHEU <https://www.youtube.com/watch?v=8YQ_HGvrHEU> 

—srs

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From parminder at itforchange.net  Mon Jun  8 13:38:31 2015
From: parminder at itforchange.net (parminder)
Date: Mon, 08 Jun 2015 23:08:31 +0530
Subject: [governance] [bestbits] Civil society transparency
In-Reply-To: <5575AD5B.5020800@cis-india.org>
References: <55617E51.5010901@itforchange.net> <41C19523561A4A5CA29EF6368B4F5AA5@Toshiba> <5573DB86.5080001@itforchange.net> <5575AD5B.5020800@cis-india.org>
Message-ID: <5575D317.8090208@itforchange.net>

Dear Pranesh

Thanks for your engagement.

On Monday 08 June 2015 08:27 PM, Pranesh Prakash wrote:
> Dear Parminder,
> I am at this point unclear what the precised difference between your
> position and Ian's is, for I don't find myself disagreeing much with
> either of you (or Anriette or Roberto).

I will be very happy to find no difference . And if you are not able to
see the difference try taking forward different approaches to actual
action, and then perhaps then you will. I am looking for some actual
action, and not just theoretical discussion . And so if you think the
two approaches lead to same practical impact - of something that can
actually be done - say in the next 3 months, I am so very glad - lets
get going with it (But I suspect not even Ian thinks so - whereby there
indeed are differences here.)

So let me again say what I am saying - I am seeking a transparency
register with declaration of interests/ objectives/ funding sources
something on the lines of EU transparency register with some possible
contextualisation to civil society situation. Now this is a concrete
thing. EU transparency register is here
<http://ec.europa.eu/transparencyregister/public/homePage.do> and here
<http://ec.europa.eu/transparencyregister/public/consultation/displaylobbyist.do;TRPUBLICID=GgDgV1GXv1n6H3LlKvQLkhnvCNRjTTH15rXTjmnZNvdmJNXZ6CZJ%212055959869?id=281621317714-62&isListLobbyistView=true>
is a page showing information submitted by one civil society
organisation - similar info is submitted by business associations . 

 I fully understand that the EU transparency register fulfils a specific
purpose, and here the purpose and motivations may be a little different
and accordingly adjustments can be made. The basic question is - are we
ready to agree to put in a place a transparency initiative or not... If
yes, I understand that the least would be to make a voluntary statement
of interests, objectives and funding sources .. I have seen no civil
society transparency initiative which is less than this, although there
are many much more complex which kind are not being advocated here. So,
we either agree to one such kind, and agree to begin working for it so
that it can be in place in 3-4 months, or we do not. Sorry, maybe I am
just being an activist, and escaping nuance. But that is how I see it.

But of course, I am happy to hear about alternatives and how we can
proceed with them. I am not wedded to any one idea or format - but it is
my present understanding that any such initiative has to have minimum of
the 3 elements that I mentioned. That is the minimum that any CS
transparency initiative I know has.
>
> On "conflict of interest":
> This is not an idea from the corporate world.  It existed far before
> that, too.  A judge, for instance, has a conflict of interest if she
> is deciding a case that related to someone close to her.  A political
> figure may have a conflict of interest while making a decision that
> involves a relative.  "Conflict of interest" is an idea that belongs
> to the public sphere and the political sphere as well.  At any rate,
> this is splitting hairs.

Agree, lets avoid going into this hair-splitting. Although what I meant
was that 'conflict of interest statement' as a transparency measure
belongs to the corporate world; in public life much greater, pro active
and default 360 degree transparency is ideally insisted upon. We know
that in India in our right to information work - and how increasingly
various kinds of actual disclosures are asked for, not just a self
judged conflict of interest statement. I havent heard of anyone asking
for and making 'conflict of interest' statements in the government for
instance - simply becuase the need and demands of transparency are much
much greater and deeper. That is what I meant by saying that this idea
as an adequate transparency measure comes from and belongs to the
corporate world.  I dont know of any civil society transparency
initiative based on conflict of interest declaration  - which is owing
to good reasons which I would not go into right now.
>
> On the transparency register:
> I support the idea, but I have the following operational questions:
> 1. Will there be a body that vets the information provided?

That is not proposed in the idea I forwarded. I just proposed a register
where groups voluntary fill in information - and if they do not, or fill
inadequately, it for the public to see and make their impressions about
it. It is possible to periodically publish the list of those who have
made the declarations - and I understand that it puts pressure on any
civil society org / actor which is big enough, exercising influence and
power around but not making the basic declarations. It just works by
public opinion. So, no, no one would be vetting the information as far
as what I proposed goes.
 
>   If so, how will this be funded?
Since no vetting is involved, there is limited resource requirement, for
which we can try and raise funds.

> 2. Will this be somewhat like the ICANN's CoI form, but with
> additional questions since this is not just about CoI?

As mentioned, I do not find conflict of interest declaration at all
adequate - and that is not the tradition in civil society transparency
initiatives . Civil society engagement is broad spectrum in public
interest, and nominally everyone only receives funds to do public
interest, ..... I have discussed this in earlier posts too, CoI is not
an appropriate concept here - a basic statement of interests, objectives
and funding sources is.

> 3. Do you envisage there being any consequences of someone having been
> funded by a government or a corporation or a religious charity or a
> corporate-funded foundation, etc., on whether someone can be a CS
> representative?  If yes, what kinds of consequences do you envisage?

I see no consequences other than of public opinion, which all of
politically active civil society must incessantly subject ourselves to,
in a fully transparent manner, even if it sometimes hurts - which times
I would say would be the greatest character-building ones. However, if
say some feminists decide to make a hue and cry to see some candidate
for a civil society position being majorly funded by groups that are
against reproductive rights, and in fact corresponding language exists
in the objective statements of the org to which the candidate belong,
who am I to stop them from doing so. After all, transparency of
information means that such information would be politically employed by
some people in some circumstances - otherwise the whole thing is
meaningless.

>
> In essence, I understand the transparency motivations, but I'm very
> unclear what accountability mechanisms are envisaged to accompany it,
> if any.

It is only about transparency - no accountability measures are
envisaged. Becky earlier posted information (on the BB list) on some
initiatives that go much beyond, into accountability seeking, but that
is not my current proposal at all.
>
> (Also, while reading Jeremy's point about witch-hunts, keep what's
> happening with Ford Foundation in India in the back of your head.)

What is happening with Ford Foundation in India has nothing to do what
is being discussed here. As for as I know the Foundation promotes NGO
transparency ....

best, parminder
>
> Regards,
> Pranesh
>
> parminder <parminder at itforchange.net> [2015-06-007 11:19:58 +0530]:
>> Ian, thanks for taking this discussion forward.
>>
>> Firstly, on the matter of to whom the required transparency measures
>> should be applicable. I have said this before, this is supposed to be
>> voluntary, and individuals merely getting into discussions on civil
>> society lists are not important in this regard. It is the civil society
>> organisations as well as individuals who get selected as civil society
>> reps in various forms, or otherwise play significant roles in civil
>> society and multistakeholder spaces, that we mainly focus on. The major
>> organisations involved in this area must be subject to basic
>> transparency requirements whether or not they take a civil society rep
>> position because they in any case very often play very important role in
>> policy processes. As you would have seen, unfortunately, a lot of strong
>> civil society action is currently taking place away from the key
>> coalitions that you mention.
>>
>> (On the other hand, I dont see why any individual just coming into some
>> IG discussion on civil society lists would be taking any IG related
>> funding at all - I mean what would s/he take it for - for spending time
>> on these lists!? (That btw would be most interesting - but then we know
>> that some big governments have paid people intervening in the cyber -
>> public sphere as a new form of public propaganda.) So, I fail to
>> understand why is this discussion focussing on individuals merely
>> participating in the list discussions - they can simply ignore the
>> proposed voluntary register, or enter that they take no IG activities
>> related funding from anyone, as one would expect to be true for most of
>> them. But then well, if individuals do take clear IG related funding,
>> say, as travel grants, occasional writings. and so on, I would think it
>> is necessary to declare that - perhaps even morethan in case of
>> organisations, who, unlike individuals, mostly - though not always -
>> have other forms of additional NGO governance checks. But to repeat, my
>> proposal has a greater primary focus on involved organisations as
>> against individuals. )
>>
>> Next, about what kind of transparency measures are appropriate.
>> 'Conflict of interest' is used more in corporate governance and we,
>> civil society people, would best stick to higher norms of public life
>> rather than go by corporate governance norms. The later are necessarily
>> limited and have a different nature. For instance, conflict of interest
>> will apply to someone who holds the shares of a company but then gets
>> involved in a governance decision that impacts the bottomline of that
>> company. Things really do not work like that in public life, where
>> transparency and accountability have a very different - much higher but
>> accordingly also diffuse  - meaning and implication. The 'public' part
>> of 'public life' is very important - and as civil society players we are
>> in public life, in fact in its rather powerful 'political life' part. In
>> stating a conflict of interest a person takes a private decision about
>> oneself and one's state of affair (of course, the decision can become
>> public in case of accusations, some future crisis, and so on).
>> Transparency of people in public life requires such judgements to made
>> /by the public/, and /at all times/. That is of essence. Sorry, that one
>> has to go into such basic canons of public life, which have a long
>> history and much better enunciations than I can attempt here.
>>
>> It is or this reason that simple conflict of interest statement while it
>> may serve the limited scope of requirements of corporate governance,
>> does not satisfy the public requirements of public life, especially as
>> involving those actors who are involved in public governance, as IG
>> civil society certainly is.
>>
>> To make this discussion more concrete; youd agree that we should get
>> into instituting a process only if it has any real meaning in terms of
>> practical implications. So I ask you, lets say that an organisation or
>> an individual were receiving funding from government of India or from
>> Google - and is involved in the typical IG related activities; please
>> provide me an instance of likely case in which that organisation/
>> individual will self declare a conflict of interest. I cant think of
>> many such possible instances - policy work is by its very nature diffuse
>> and almost everyone is, by the very nature of it being public policy,
>> impacted - some certainly more than the other, but private judgements of
>> such impact would hardly be useful. It is not that IGF or an IG
>> governance body is ever going to make a declaration specifically on govt
>> of India or google, in which kind of case perhaps one may jump to state
>> a funding conflict. In fact, one still may not, becuase typically any
>> org will accept funding only in the name of promoting public interest
>> and would not want to accept that pushing a public policy discussion or
>> process in one way or the other actually constitutes a 'conflict of
>> interest' - in that it would not want to admit that in accepting a
>> funding it had accepted taking on 'an interest'. That is a fundamental
>> difference in how a civil society org is constitutes, as against a
>> lobbying body. For all these reasons, conflict of interest is not a
>> concept suited for civil society transparency and accountability. Your
>> proposal for "require(ing) candidates to register any conflicts of
>> interest" would simply result in all candidates saying 'they have no
>> conflict of interest that they can recognise' and thus would serve no
>> purpose at all.
>>
>> Lastly, while you keep on saying this is the most we can do ( 'conflict
>> of interest' declaration) you have not given any reason why transparency
>> standards often applied in other areas of civil society work should not
>> be applied in the IG space as well, and what exactly is wrong with a
>> basic voluntary register of transparency simply declaring 'interests,
>> objectives, and funding sources'. This even when I have been arguing
>> that it is even more important for IG civil society than in other civil
>> society areas, because the unique multistakeholder claim and approach in
>> this area puts civil society in more significant, even powerful, policy
>> positions than in other areas. Also, how basic documents on healthy
>> development of a multistakeholder approach like the UN report on IGF
>> improvements, NetMundial Statement, etc, all point to need for greater
>> transparency. I once again exhort you to read Luca Belli's this
>> excellent paper on multistakeholderism
>> <http://policyreview.info/articles/analysis/heterostakeholder-cooperation-sustainable-internet-policymaking>
>>
>>    which argues why such basic transparency is essential to forwarding a
>> multistakeholder approach.
>>
>> I cant see how IG civil society can keep pushing a multistakeholder
>> approach to policy making, and seek a greater role for itself in the
>> process, but then keep dragging its feet on accepting even basic
>> transparency norms. The world is watching of course, and will ask
>> questions. there is a cost to being in public life.
>>
>> parminder
>>
>>
>> On Sunday 07 June 2015 03:32 AM, Ian Peter wrote:
>>> Hi Parminder,
>>>
>>> Following from the discussion, here is what I think is possible and
>>> realistic in this space.
>>>
>>> Firstly, I think the question of transparency and disclosure of
>>> conflicts of interest is important.
>>>
>>> However, I don’t think people need to declare interests to involve
>>> themselves in discussion here or in any of our open mailing lists, and
>>> the real concerns start to arise only when people are seeking office
>>> as civil society representatives.
>>>
>>> Here, most of the office bearing exists in the various coalitions –
>>> APC, Best Bits, JNC, NCSG, IGC. I would urge each of these groups,
>>> when holding elections, to require candidates to register any
>>> conflicts of interest. I know Best Bits is moving to elections for its
>>> Steering Committee again soon, perhaps it could formulate some sort of
>>> basic disclosure requirement for its purposes? And I guess JNC must be
>>> moving towards holding its first elections for SC replenishment soon?
>>> And IGC could easily add such a requirement for its candidates for co
>>> cordinator elections (presumably late this year).
>>>
>>> But these are requirements for individual groups, and the form of such
>>> is for each group to determine. I think however that such a
>>> requirement would be a good idea.
>>>
>>> As regards CSCG – our calls for candidates are for appointments to
>>> outside bodies, and I agree that some form of disclosure of any
>>> conflicts of interest would be a good idea. Currently it would appear
>>> that our next task would be MAG replenishment (and a small one at
>>> that), probably early next year. I will suggest to the members that we
>>> should require some sort of basic disclosure statement. But that of
>>> course is up to the members (APC, BB, JNC, NCSG, IGC) to determine.
>>>
>>> I’m not sure we can go much further. But if some work can be done on a
>>> simple model of a form of disclosure, that would be good.
>>>
>>> Ian Peter
>>>
>>> *From:* parminder <mailto:parminder at itforchange.net>
>>> *Sent:* Sunday, May 24, 2015 5:31 PM
>>> *To:* Ian Peter <mailto:ian.peter at ianpeter.com> ;
>>> governance at lists.igcaucus.org <mailto:governance at lists.igcaucus.org> ;
>>> BestBitsList <mailto:bestbits at lists.bestbits.net> ;
>>> mailto:forum at justnetcoalition.org ; A general information sharing
>>> space for the APC Community. <mailto:apc.forum at lists.apc.org>
>>> *Subject:* [governance] Civil society transparency
>>>
>>> Ian, and reps of civil society networks on the Civil Society
>>> Coordination Group (CSCG) ,
>>>
>>> I propose that CSCG sets up a civil society transparency project,
>>> somewhat on the lines of the EU Transparency Register, pl see
>>> http://ec.europa.eu/transparencyregister/public/homePage.do .
>>>
>>> It should in fact go beyond the EU initiative which is a general one
>>> for all lobbying groups, whereas we here are concerned with civil
>>> society which should set the highest example of transparency and
>>> accountability. The 'register' can have self filled information on
>>> objectives of an organisation, principles followed by it, if any, its
>>> funding, partners, and so on....
>>>
>>> This is at present just my proposal, but I hope one or more civil
>>> society networks in the IG space can own it and push it... CSCG would
>>> be well placed to run this project as a neutral space so that there is
>>> no accusation of bias that any such initiative is being employed for
>>> partisan purposes. In any case, a simple initiative for openness,
>>> transparency and accountability can hardly be partisan.
>>>
>>> The register can have optional higher level features whereby a group/
>>> org can declare its means of public accountability, whether and how
>>> its internal governance is done, how matters can be taken by with
>>> their oversight bodies, like board etc, and whether they have any
>>> means whereby they respond to public question on their work, etc.
>>>
>>> For such genuine cases where such transparency can harm an
>>> organisations work, or security, such organisations, and only such
>>> organisations, can be exempted employing a clear process and set of
>>> criteria.
>>>
>>> Remember, both the UN report on improvements to the IGF and the
>>> NetMundial Statement highlight the issue of transparency. I also
>>> recently read in these lists how we should make bridges with the
>>> OpenGov movement which is almost wholly about this one thing. Time we
>>> begin practising what we preach.
>>>
>>> I look forward to hear responses to this proposal..
>>>
>>> parminder
>>>
>>> ------------------------------------------------------------------------
>>>
>>> ____________________________________________________________
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>>>
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>>
>>
>>
>>
>> ____________________________________________________________
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>
>
>
> ____________________________________________________________
> You received this message as a subscriber on the list:
>      bestbits at lists.bestbits.net.
> To unsubscribe or change your settings, visit:
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From salanieta.tamanikaiwaimaro at gmail.com  Mon Jun  8 17:39:23 2015
From: salanieta.tamanikaiwaimaro at gmail.com (Salanieta T. Tamanikaiwaimaro)
Date: Tue, 9 Jun 2015 09:39:23 +1200
Subject: [governance] Parallels Between Our Oceans and Internet Governance
 #LawOfTheSea #InternetGovernance #Oceans #WorldOceansDay
 #GlobalSubmarineCables
Message-ID: <CAJwbTiBGvA6wVr-6UUsWLN6JnD_Wm68R5urbPkS7GoqSoLMVPg@mail.gmail.com>

Dear All,

Yesterday was June 8 in most parts of the Pacific and globally we celebrate
World Oceans Day. The Pacific Commissioner for Oceans, Dame Meg Taylor has
also issued an invitation for those willing to join the coastal cleanup is
open to all interested community members, from 8-10am Thursday 11 June,
near the FIRCA building, Nasese, Suva, Fiji. To register please email
opoc at forumsec.org.

Since it is still June 8 in the Northern Hemisphere, I thought I would
share with you a little piece I wrote about the parallels of the Oceans and
Internet Governance and you can read the Article here:
*http://www.circleid.com/posts/20150608_parallels_between_our_oceans_and_internet_governance_worldoceanday/
<http://www.circleid.com/posts/20150608_parallels_between_our_oceans_and_internet_governance_worldoceanday/>*
Feel free to share the article or send me your thoughts.

Kind Regards,
Sala

P.S The views expressed in the article *are solely mine* and do not reflect
the views of any of my affiliations.
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From froomkin at law.miami.edu  Mon Jun  8 18:48:01 2015
From: froomkin at law.miami.edu (Michael Froomkin - U.Miami School of Law)
Date: Mon, 8 Jun 2015 18:48:01 -0400
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <557378D2.6030503@cafonso.ca>
References: <557378D2.6030503@cafonso.ca>
Message-ID: <alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu>

Perhaps I'm misreading something, but I read this document to make the 
following assertions:

1. All restrictions on ICANN's location must be removed.

2. ICANN does not have to leave the US but must be located in a place 
where the governing law has certain characteristics, including not having 
the possibiliity that courts overrule ICANN (or at least the IRP).

(And, as it happens, the US is not such a place....)


3. ICANN doesn't have to change its form, but it needs a form where 
governments are comfortable.

(And, as it happens, the corporate form is not such a form....)


What am I missing?


On Sat, 6 Jun 2015, Carlos A. Afonso wrote:

> For the ones who are following the IANA transition process: attached
> please find the comments posted by the government of Brazil on June 03,
> 2015, in response to the call for public comments on the
> CCWG-Accountability Initial Draft Proposal.
>
> I generally agree with the comments.
>
> fraternal regards
>
> --c.a.
>

-- 
A. Michael Froomkin, http://law.tm
Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
                         -->It's warm here.<--
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From ca at cafonso.ca  Mon Jun  8 19:57:29 2015
From: ca at cafonso.ca (Carlos A. Afonso)
Date: Mon, 08 Jun 2015 20:57:29 -0300
Subject: [governance] IANA transition - R.Bissio's comments on
 CCWG-Accountability Draft
Message-ID: <55762BE9.7000209@cafonso.ca>

For the ones who are following the IANA transition process: attached
please find the comments posted by Roberto Bissio, one of the advisors
to the CCWG-Accountability, regarding the draft proposal.

The list and short bio of the advisors can be found here:

https://community.icann.org/display/acctcrosscomm/Advisors

fraternal regards

--c.a.

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From joly at punkcast.com  Tue Jun  9 03:14:20 2015
From: joly at punkcast.com (Joly MacFie)
Date: Tue, 9 Jun 2015 03:14:20 -0400
Subject: [governance] =?UTF-8?Q?WEBCAST_TODAY_INETColombo_2015_=E2=80=93_m?=
 =?UTF-8?Q?arking_20_years_of_Internet_in_Sri_Lanka?=
Message-ID: <CAM9VJk37jx0wyHLYzWx=EggtwD5HN8XPmSp4MtE+cN6Lc3O0kA@mail.gmail.com>

This is well underway but the archive is already forming at
https://livestream.com/internetsociety/inetcolombo2015

Our relay of the local webcast started off a little rough as I tried to
keep up while multiple remote hubs at local schools joined the source zoom,
I got it settled by about the third session. The retrospective theme has
thus far provided some very interesting stuff on the history of Asian
Internet development, not only in Sri Lanka, but also Korea and Thailand.

Raul Echeberria and Satish Babu are up now talking about Internet Governance

 joly posted: "Today Tuesday June 9 2015, marking 20 years of the Internet
in Sri Lanka, INET Colombo 2015 will celebrate this milestone, looking back
on how the Internet came into being in Sri Lanka, investigating how it has
affected the society and envisioning the fut"


[image: INET Colombo]
<https://livestream.com/internetsociety/inetcolombo2015>Today *Tuesday June
9 2015*, marking 20 years of the Internet in Sri Lanka, *INET Colombo 2015
<http://www.internetsociety.org/inet-colombo/>* will celebrate this
milestone, looking back on how the Internet came into being in Sri Lanka,
investigating how it has affected the society and envisioning the future
promises. The event brings together bring together over 300 participants
from the Government agencies, Internet service providers, mobile operators,
academic institution, banks, ICT entrepreneurs, commercial companies and
general public. The* live webcast <http://bit.ly/isoctv>* is being relayed
through and archived at the *Internet Society Livestream Channel
<https://livestream.com/internetsociety/inetcolombo2015>*.

*What: INET Colombo 2015 <http://www.internetsociety.org/inet-colombo/>*
* Where: The Kingsbury Hotel, Colombo, Sri Lanka*
* When: Tuesday June 9 2015 9am-5pm IST | 03:30-11:30 UTC | 23:30-08:30 EDT*
* Agenda: http://www.internetsociety.org/inet-colombo/sessions
<http://www.internetsociety.org/inet-colombo/sessions>*
* Webcast (local): http://bit.ly/isoctv <http://bit.ly/isoctv>*
* Webcast (global): https://livestream.com/internetsociety/inetcolombo2015
<https://livestream.com/internetsociety/inetcolombo2015>*
* Twitter: #inetcolombo2015 <http://twitter.com/hashtag/inetcolombo2015>*

Comment <http://isoc-ny.org/p2/7822#respond>   See all comments
<http://isoc-ny.org/p2/7822#comments>





*Permalink*
http://isoc-ny.org/p2/7822





-- 
---------------------------------------------------------------
Joly MacFie  218 565 9365 Skype:punkcast
WWWhatsup NYC - http://wwwhatsup.com
 http://pinstand.com - http://punkcast.com
 VP (Admin) - ISOC-NY - http://isoc-ny.org
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From kichango at gmail.com  Tue Jun  9 07:11:38 2015
From: kichango at gmail.com (Mawaki Chango)
Date: Tue, 9 Jun 2015 11:11:38 +0000
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu>
References: <557378D2.6030503@cafonso.ca>
	<alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu>
Message-ID: <CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com>

It's good to see a law scholar involved in this discussion. I'll leave it
to the Brazilian party to ultimate tell whether your reading is correct or
not. In the meantime I'd volunteer the following comments.

On Jun 8, 2015 10:46 PM, "Michael Froomkin - U.Miami School of Law" <
froomkin at law.miami.edu> wrote:
>
> Perhaps I'm misreading something, but I read this document to make the
following assertions:
>
> 1. All restrictions on ICANN's location must be removed.
>

And the question reopened for deliberation by all stakeholders, including
governments among others. Only the outcome of such deliberation will be
fully legitimate within the framework of the post-2015 ICANN.

> 2. ICANN does not have to leave the US but must be located in a place
where the governing law has certain characteristics, including not having
the possibiliity that courts overrule ICANN (or at least the IRP).
>
> (And, as it happens, the US is not such a place....)
>

Not only avoiding courts overruling relevant outcomes of the Internet
global community processes, but also examining and resolving the possible
interferences/conflicts that might arise for government representatives
being subject to a foreign country law simply in the process of attending
to their regular duties (if they were to be fully engaged with ICANN).

Quote:
"From the Brazilian perspective the existing structure clearly imposes
limits to the participation of governmental representatives, as it is
unlikely that a representative of a foreign government will be
authorized (by its own government) to formally accept a position in a
body pertaining to a U.S. corporation."

This may be what you're getting at with your point 3 below, but I'm not
sure whether the problem is only the fact that governments have to deal
with a corporate form/law or whether it is altogether the fact that it is a
single country law without any form of deliberate endorsement by the other
governments (who also have law making power in their respective country
just as the US government).

Assuming your reading is correct, and if necessary complemented by my
remarks above, I'd be interested in hearing from you about any issues you
may see with the BR gov comments.
Thanks,

Mawaki

>
> 3. ICANN doesn't have to change its form, but it needs a form where
governments are comfortable.
>
> (And, as it happens, the corporate form is not such a form....)
>
>
> What am I missing?
>
>
>
> On Sat, 6 Jun 2015, Carlos A. Afonso wrote:
>
>> For the ones who are following the IANA transition process: attached
>> please find the comments posted by the government of Brazil on June 03,
>> 2015, in response to the call for public comments on the
>> CCWG-Accountability Initial Draft Proposal.
>>
>> I generally agree with the comments.
>>
>> fraternal regards
>>
>> --c.a.
>>
>
> --
> A. Michael Froomkin, http://law.tm
> Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
> Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
> Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
>                         -->It's warm here.<--
> ____________________________________________________________
>
> You received this message as a subscriber on the list:
>
>      governance at lists.igcaucus.org
>
> To be removed from the list, visit:
>
>      http://www.igcaucus.org/unsubscribing
>
>
>
> For all other list information and functions, see:
>
>      http://lists.igcaucus.org/info/governance
>
> To edit your profile and to find the IGC's charter, see:
>
>      http://www.igcaucus.org/
>
>
>
> Translate this email: http://translate.google.com/translate_t
>
>


























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From froomkin at law.miami.edu  Tue Jun  9 08:56:16 2015
From: froomkin at law.miami.edu (Michael Froomkin - U.Miami School of Law)
Date: Tue, 9 Jun 2015 08:56:16 -0400
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com>
References: <557378D2.6030503@cafonso.ca> <alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu> <CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com>
Message-ID: <alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu>


I think that bodies which do not need to fear supervision by legitimate 
courts end up like FIFA. FIFA had a legal status in Switzerland that 
basically insulated it the way that the Brazilian document seems to 
suggest would be what they want for ICANN.  (It's also the legal status 
ICANN has at times suggested it would like.)

The lesson of history seems unusually clear here.

On Tue, 9 Jun 2015, Mawaki Chango wrote:

> 
> It's good to see a law scholar involved in this discussion. I'll leave it to the Brazilian party to
> ultimate tell whether your reading is correct or not. In the meantime I'd volunteer the following
> comments.
> 
> On Jun 8, 2015 10:46 PM, "Michael Froomkin - U.Miami School of Law" <froomkin at law.miami.edu> wrote:
> >
> > Perhaps I'm misreading something, but I read this document to make the following assertions:
> >
> > 1. All restrictions on ICANN's location must be removed.
> >
> 
> And the question reopened for deliberation by all stakeholders, including governments among others.
> Only the outcome of such deliberation will be fully legitimate within the framework of the post-2015
> ICANN.
> 
> > 2. ICANN does not have to leave the US but must be located in a place where the governing law has
> certain characteristics, including not having the possibiliity that courts overrule ICANN (or at
> least the IRP).
> >
> > (And, as it happens, the US is not such a place....)
> >
> 
> Not only avoiding courts overruling relevant outcomes of the Internet global community processes,
> but also examining and resolving the possible interferences/conflicts that might arise for
> government representatives being subject to a foreign country law simply in the process of attending
> to their regular duties (if they were to be fully engaged with ICANN).
> 
> Quote:
> "From the Brazilian perspective the existing structure clearly imposes limits to the participation
?? ?of governmental representatives, as it is unlikely that a representative of a foreign government wi
> ll be authorized (by its own government) to formally accept a position in a body pertaining to a U.
> S. corporation."
> 
> This may be what you're getting at with your point 3 below, but I'm not sure whether the problem is
> only the fact that governments have to deal with a corporate form/law or whether it is altogether
> the fact that it is a single country law without any form of deliberate endorsement by the other
> governments (who also have law making power in their respective country just as the US government).
> 
> Assuming your reading is correct, and if necessary complemented by my remarks above, I'd be
> interested in hearing from you about any issues you may see with the BR gov comments.
> Thanks,
> 
> Mawaki
> 
> >
> > 3. ICANN doesn't have to change its form, but it needs a form where governments are comfortable.
> >
> > (And, as it happens, the corporate form is not such a form....)
> >
> >
> > What am I missing?
> >
> >
> >
> > On Sat, 6 Jun 2015, Carlos A. Afonso wrote:
> >
> >> For the ones who are following the IANA transition process: attached
> >> please find the comments posted by the government of Brazil on June 03,
> >> 2015, in response to the call for public comments on the
> >> CCWG-Accountability Initial Draft Proposal.
> >>
> >> I generally agree with the comments.
> >>
> >> fraternal regards
> >>
> >> --c.a.
> >>
> >
> > --
> > A. Michael Froomkin, http://law.tm
> > Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
> > Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
> > Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
> > U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> >                         -->It's warm here.<--
> > ____________________________________________________________
> >
> > You received this message as a subscriber on the list:
> >
> >      governance at lists.igcaucus.org
> >
> > To be removed from the list, visit:
> >
> >      http://www.igcaucus.org/unsubscribing
> >
> >
> >
> > For all other list information and functions, see:
> >
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> >
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> >
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> >
> >
> >
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> >
> >                                                                                                  
>                                                                                                    
>                                                                                                    
>                                                                                                    
>                                                                                                    
>                                                                                                    
>                                                                                                    
>                                                                                                    
>                                                                                                    
>                                                                                                    
>                                                                                                    
>                                                                                                    
>                                                                                                    
>                                                                                                    
>                                                                                                    
>                                                                                                    
>                                                                                                    
>                                                                                                    
>                                                                                                    
>                                                                                                    
>                                                  
> > ____________________________________________________________
> > You received this message as a subscriber on the list:
> >      governance at lists.igcaucus.org
> > To be removed from the list, visit:
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> >
> > For all other list information and functions, see:
> >      http://lists.igcaucus.org/info/governance
> > To edit your profile and to find the IGC's charter, see:
> >      http://www.igcaucus.org/
> >
> > Translate this email: http://translate.google.com/translate_t
> >
> 
> 
>

-- 
A. Michael Froomkin, http://law.tm
Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
                         -->It's warm here.<--
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From parminder at itforchange.net  Tue Jun  9 09:41:21 2015
From: parminder at itforchange.net (parminder)
Date: Tue, 09 Jun 2015 19:11:21 +0530
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu>
References: <557378D2.6030503@cafonso.ca> <alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu> <CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com> <alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu>
Message-ID: <5576ED01.9010606@itforchange.net>



On Tuesday 09 June 2015 06:26 PM, Michael Froomkin - U.Miami School of
Law wrote:
>
> I think that bodies which do not need to fear supervision by
> legitimate courts end up like FIFA. FIFA had a legal status in
> Switzerland that basically insulated it the way that the Brazilian
> document seems to suggest would be what they want for ICANN.  (It's
> also the legal status ICANN has at times suggested it would like.)
>
> The lesson of history seems unusually clear here.

Agree that ICANN cannot be left jurisdictionally un-supervised - that
may be even more dangerous than the present situation. However, the
right supervision or oversight is of international jurisdiction and law,
not that of the US . This is what Brazil has to make upfront as the
implication of what it is really seeking, and its shyness and reticence
to say so is what I noted as surprising in an earlier email in this
thread. Not putting out clearly what exactly it wants would lead to
misconceptions about its position, which IMHO can be seen from how
Michael reads it.  I am sure this is not how Brazil meant it - to free
ICANN from all kinds of jurisdictional oversight whatsoever - but then
Brazil needs to say clearly what is it that it wants, and how can it can
obtained. Brazil, please come out of your NetMundial hangover and take
political responsibility for what you say and seek!

parminder


>
> On Tue, 9 Jun 2015, Mawaki Chango wrote:
>
>>
>> It's good to see a law scholar involved in this discussion. I'll
>> leave it to the Brazilian party to
>> ultimate tell whether your reading is correct or not. In the meantime
>> I'd volunteer the following
>> comments.
>>
>> On Jun 8, 2015 10:46 PM, "Michael Froomkin - U.Miami School of Law"
>> <froomkin at law.miami.edu> wrote:
>> >
>> > Perhaps I'm misreading something, but I read this document to make
>> the following assertions:
>> >
>> > 1. All restrictions on ICANN's location must be removed.
>> >
>>
>> And the question reopened for deliberation by all stakeholders,
>> including governments among others.
>> Only the outcome of such deliberation will be fully legitimate within
>> the framework of the post-2015
>> ICANN.
>>
>> > 2. ICANN does not have to leave the US but must be located in a
>> place where the governing law has
>> certain characteristics, including not having the possibiliity that
>> courts overrule ICANN (or at
>> least the IRP).
>> >
>> > (And, as it happens, the US is not such a place....)
>> >
>>
>> Not only avoiding courts overruling relevant outcomes of the Internet
>> global community processes,
>> but also examining and resolving the possible interferences/conflicts
>> that might arise for
>> government representatives being subject to a foreign country law
>> simply in the process of attending
>> to their regular duties (if they were to be fully engaged with ICANN).
>>
>> Quote:
>> "From the Brazilian perspective the existing structure clearly imposes limits to the participation
>>
> ??
> ?of governmental representatives, as it is unlikely that a representative of a foreign government wi
>> ll be authorized (by its own government) to formally accept a position in a body pertaining to a U.
>>
>> S. corporation."
>>
>> This may be what you're getting at with your point 3 below, but I'm
>> not sure whether the problem is
>> only the fact that governments have to deal with a corporate form/law
>> or whether it is altogether
>> the fact that it is a single country law without any form of
>> deliberate endorsement by the other
>> governments (who also have law making power in their respective
>> country just as the US government).
>>
>> Assuming your reading is correct, and if necessary complemented by my
>> remarks above, I'd be
>> interested in hearing from you about any issues you may see with the
>> BR gov comments.
>> Thanks,
>>
>> Mawaki
>>
>> >
>> > 3. ICANN doesn't have to change its form, but it needs a form where
>> governments are comfortable.
>> >
>> > (And, as it happens, the corporate form is not such a form....)
>> >
>> >
>> > What am I missing?
>> >
>> >
>> >
>> > On Sat, 6 Jun 2015, Carlos A. Afonso wrote:
>> >
>> >> For the ones who are following the IANA transition process: attached
>> >> please find the comments posted by the government of Brazil on
>> June 03,
>> >> 2015, in response to the call for public comments on the
>> >> CCWG-Accountability Initial Draft Proposal.
>> >>
>> >> I generally agree with the comments.
>> >>
>> >> fraternal regards
>> >>
>> >> --c.a.
>> >>
>> >
>> > --
>> > A. Michael Froomkin, http://law.tm
>> > Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
>> > Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
>> > Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
>> > U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
>> >                         -->It's warm here.<--
>> > ____________________________________________________________
>> >
>> > You received this message as a subscriber on the list:
>> >
>> >      governance at lists.igcaucus.org
>> >
>> > To be removed from the list, visit:
>> >
>> >      http://www.igcaucus.org/unsubscribing
>> >
>> >
>> >
>> > For all other list information and functions, see:
>> >
>> >      http://lists.igcaucus.org/info/governance
>> >
>> > To edit your profile and to find the IGC's charter, see:
>> >
>> >      http://www.igcaucus.org/
>> >
>> >
>> >
>> > Translate this email: http://translate.google.com/translate_t
>> >
>> >                                                                    
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                  
>> > ____________________________________________________________
>> > You received this message as a subscriber on the list:
>> >      governance at lists.igcaucus.org
>> > To be removed from the list, visit:
>> >      http://www.igcaucus.org/unsubscribing
>> >
>> > For all other list information and functions, see:
>> >      http://lists.igcaucus.org/info/governance
>> > To edit your profile and to find the IGC's charter, see:
>> >      http://www.igcaucus.org/
>> >
>> > Translate this email: http://translate.google.com/translate_t
>> >
>>
>>
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>
>
>
> ____________________________________________________________
> You received this message as a subscriber on the list:
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From wolfgang.kleinwaechter at medienkomm.uni-halle.de  Tue Jun  9 09:49:22 2015
From: wolfgang.kleinwaechter at medienkomm.uni-halle.de (=?iso-8859-1?Q?=22Kleinw=E4chter=2C_Wolfgang=22?=)
Date: Tue, 09 Jun 2015 15:49:22 +0200
Subject: AW: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
References: <557378D2.6030503@cafonso.ca>
 <alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu>
 <CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com>
 <alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu>
 <5576ED01.9010606@itforchange.net>
Message-ID:  <2DA93620FC07494C926D60C8E3C2F1A801642F6D@server1.medienkomm.uni-halle.de>

Hi Parminder,

can you specify what do you understand under "international jurisdiction"? Do you want to create an "International (Internet) Court"? Do you want to have ICANN under the International Court of Justice in The Hague? International Courts are created by intergovernmental treaties. Here is a list of "International Courts":
http://en.wikipedia.org/wiki/International_court.

Wolfgang



  


-----Ursprüngliche Nachricht-----
Von: governance-request at lists.igcaucus.org im Auftrag von parminder
Gesendet: Di 09.06.2015 15:41
An: governance at lists.igcaucus.org; Michael Froomkin - U.Miami School of Law; Mawaki Chango
Betreff: Re: [governance] IANA transition - BR Gov comments on the CCWG-Accountability Draft Proposal
 


On Tuesday 09 June 2015 06:26 PM, Michael Froomkin - U.Miami School of
Law wrote:
>
> I think that bodies which do not need to fear supervision by
> legitimate courts end up like FIFA. FIFA had a legal status in
> Switzerland that basically insulated it the way that the Brazilian
> document seems to suggest would be what they want for ICANN.  (It's
> also the legal status ICANN has at times suggested it would like.)
>
> The lesson of history seems unusually clear here.

Agree that ICANN cannot be left jurisdictionally un-supervised - that
may be even more dangerous than the present situation. However, the
right supervision or oversight is of international jurisdiction and law,
not that of the US . This is what Brazil has to make upfront as the
implication of what it is really seeking, and its shyness and reticence
to say so is what I noted as surprising in an earlier email in this
thread. Not putting out clearly what exactly it wants would lead to
misconceptions about its position, which IMHO can be seen from how
Michael reads it.  I am sure this is not how Brazil meant it - to free
ICANN from all kinds of jurisdictional oversight whatsoever - but then
Brazil needs to say clearly what is it that it wants, and how can it can
obtained. Brazil, please come out of your NetMundial hangover and take
political responsibility for what you say and seek!

parminder


>
> On Tue, 9 Jun 2015, Mawaki Chango wrote:
>
>>
>> It's good to see a law scholar involved in this discussion. I'll
>> leave it to the Brazilian party to
>> ultimate tell whether your reading is correct or not. In the meantime
>> I'd volunteer the following
>> comments.
>>
>> On Jun 8, 2015 10:46 PM, "Michael Froomkin - U.Miami School of Law"
>> <froomkin at law.miami.edu> wrote:
>> >
>> > Perhaps I'm misreading something, but I read this document to make
>> the following assertions:
>> >
>> > 1. All restrictions on ICANN's location must be removed.
>> >
>>
>> And the question reopened for deliberation by all stakeholders,
>> including governments among others.
>> Only the outcome of such deliberation will be fully legitimate within
>> the framework of the post-2015
>> ICANN.
>>
>> > 2. ICANN does not have to leave the US but must be located in a
>> place where the governing law has
>> certain characteristics, including not having the possibiliity that
>> courts overrule ICANN (or at
>> least the IRP).
>> >
>> > (And, as it happens, the US is not such a place....)
>> >
>>
>> Not only avoiding courts overruling relevant outcomes of the Internet
>> global community processes,
>> but also examining and resolving the possible interferences/conflicts
>> that might arise for
>> government representatives being subject to a foreign country law
>> simply in the process of attending
>> to their regular duties (if they were to be fully engaged with ICANN).
>>
>> Quote:
>> "From the Brazilian perspective the existing structure clearly imposes limits to the participation
>>
> ??
> ?of governmental representatives, as it is unlikely that a representative of a foreign government wi
>> ll be authorized (by its own government) to formally accept a position in a body pertaining to a U.
>>
>> S. corporation."
>>
>> This may be what you're getting at with your point 3 below, but I'm
>> not sure whether the problem is
>> only the fact that governments have to deal with a corporate form/law
>> or whether it is altogether
>> the fact that it is a single country law without any form of
>> deliberate endorsement by the other
>> governments (who also have law making power in their respective
>> country just as the US government).
>>
>> Assuming your reading is correct, and if necessary complemented by my
>> remarks above, I'd be
>> interested in hearing from you about any issues you may see with the
>> BR gov comments.
>> Thanks,
>>
>> Mawaki
>>
>> >
>> > 3. ICANN doesn't have to change its form, but it needs a form where
>> governments are comfortable.
>> >
>> > (And, as it happens, the corporate form is not such a form....)
>> >
>> >
>> > What am I missing?
>> >
>> >
>> >
>> > On Sat, 6 Jun 2015, Carlos A. Afonso wrote:
>> >
>> >> For the ones who are following the IANA transition process: attached
>> >> please find the comments posted by the government of Brazil on
>> June 03,
>> >> 2015, in response to the call for public comments on the
>> >> CCWG-Accountability Initial Draft Proposal.
>> >>
>> >> I generally agree with the comments.
>> >>
>> >> fraternal regards
>> >>
>> >> --c.a.
>> >>
>> >
>> > --
>> > A. Michael Froomkin, http://law.tm
>> > Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
>> > Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
>> > Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
>> > U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
>> >                         -->It's warm here.<--
>> > ____________________________________________________________
>> >
>> > You received this message as a subscriber on the list:
>> >
>> >      governance at lists.igcaucus.org
>> >
>> > To be removed from the list, visit:
>> >
>> >      http://www.igcaucus.org/unsubscribing
>> >
>> >
>> >
>> > For all other list information and functions, see:
>> >
>> >      http://lists.igcaucus.org/info/governance
>> >
>> > To edit your profile and to find the IGC's charter, see:
>> >
>> >      http://www.igcaucus.org/
>> >
>> >
>> >
>> > Translate this email: http://translate.google.com/translate_t
>> >
>> >                                                                    
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                                      
>>                              
>>                                                  
>> > ____________________________________________________________
>> > You received this message as a subscriber on the list:
>> >      governance at lists.igcaucus.org
>> > To be removed from the list, visit:
>> >      http://www.igcaucus.org/unsubscribing
>> >
>> > For all other list information and functions, see:
>> >      http://lists.igcaucus.org/info/governance
>> > To edit your profile and to find the IGC's charter, see:
>> >      http://www.igcaucus.org/
>> >
>> > Translate this email: http://translate.google.com/translate_t
>> >
>>
>>
>>
>
>
>
> ____________________________________________________________
> You received this message as a subscriber on the list:
>      governance at lists.igcaucus.org
> To be removed from the list, visit:
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>      http://www.igcaucus.org/
>
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>
>
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From froomkin at law.miami.edu  Tue Jun  9 10:01:45 2015
From: froomkin at law.miami.edu (Michael Froomkin - U.Miami School of Law)
Date: Tue, 9 Jun 2015 10:01:45 -0400
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <5576ED01.9010606@itforchange.net>
References: <557378D2.6030503@cafonso.ca> <alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu> <CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com> <alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu>
 <5576ED01.9010606@itforchange.net>
Message-ID: <alpine.LRH.2.00.1506090955160.12194@post.law.miami.edu>

I don't know what it means to say that ICANN should be subject to 
"international jurisdiction and law".  For the relevant issues, that 
sounds like a pretty empty set.

As regards most of the sort of things one might expect to worry about - 
e.g. fidelity to articles of incorporation - international law is 
basically silent.  And there is no relevant jurisdiction either.  So I 
remain stuck in the position that there must be a state anchor whose 
courts are given the job.  It does not of course need to be the US, 
although I would note that the US courts are by international standards 
not shy and actually fairly good at this sort of thing.

I do think, however, that it should NOT be Switzerland, as its courts are 
historically over-deferential to international bodies - perhaps as part of 
state policy to be an attractive location for those high-spending 
international meetings.

I'd be real happy with Canada, though.

On Tue, 9 Jun 2015, parminder wrote:

> 
> 
> On Tuesday 09 June 2015 06:26 PM, Michael Froomkin - U.Miami School of Law wrote:
>
>       I think that bodies which do not need to fear supervision by legitimate courts end up
>       like FIFA. FIFA had a legal status in Switzerland that basically insulated it the way
>       that the Brazilian document seems to suggest would be what they want for ICANN.  (It's
>       also the legal status ICANN has at times suggested it would like.)
>
>       The lesson of history seems unusually clear here.
> 
> 
> Agree that ICANN cannot be left jurisdictionally un-supervised - that may be even more dangerous
> than the present situation. However, the right supervision or oversight is of international
> jurisdiction and law, not that of the US . This is what Brazil has to make upfront as the
> implication of what it is really seeking, and its shyness and reticence to say so is what I noted as
> surprising in an earlier email in this thread. Not putting out clearly what exactly it wants would
> lead to misconceptions about its position, which IMHO can be seen from how Michael reads it.  I am
> sure this is not how Brazil meant it - to free ICANN from all kinds of jurisdictional oversight
> whatsoever - but then Brazil needs to say clearly what is it that it wants, and how can it can
> obtained. Brazil, please come out of your NetMundial hangover and take political responsibility for
> what you say and seek!
> 
> parminder
> 
> 
>
>       On Tue, 9 Jun 2015, Mawaki Chango wrote:
> 
>
>             It's good to see a law scholar involved in this discussion. I'll leave it to
>             the Brazilian party to
>             ultimate tell whether your reading is correct or not. In the meantime I'd
>             volunteer the following
>             comments.
>
>             On Jun 8, 2015 10:46 PM, "Michael Froomkin - U.Miami School of Law"
>             <froomkin at law.miami.edu> wrote:
>             >
>             > Perhaps I'm misreading something, but I read this document to make the
>             following assertions:
>             >
>             > 1. All restrictions on ICANN's location must be removed.
>             >
>
>             And the question reopened for deliberation by all stakeholders, including
>             governments among others.
>             Only the outcome of such deliberation will be fully legitimate within the
>             framework of the post-2015
>             ICANN.
>
>             > 2. ICANN does not have to leave the US but must be located in a place
>             where the governing law has
>             certain characteristics, including not having the possibiliity that courts
>             overrule ICANN (or at
>             least the IRP).
>             >
>             > (And, as it happens, the US is not such a place....)
>             >
>
>             Not only avoiding courts overruling relevant outcomes of the Internet global
>             community processes,
>             but also examining and resolving the possible interferences/conflicts that
>             might arise for
>             government representatives being subject to a foreign country law simply in
>             the process of attending
>             to their regular duties (if they were to be fully engaged with ICANN).
>
>             Quote:
>             "From the Brazilian perspective the existing structure clearly imposes limits to the participation
>
>       ???of governmental representatives, as it is unlikely that a representative of a foreign government w
>       i
> ll be authorized (by its own government) to formally accept a position in a body pertaining to a U.
>
>             S. corporation."
>
>             This may be what you're getting at with your point 3 below, but I'm not sure
>             whether the problem is
>             only the fact that governments have to deal with a corporate form/law or
>             whether it is altogether
>             the fact that it is a single country law without any form of deliberate
>             endorsement by the other
>             governments (who also have law making power in their respective country just
>             as the US government).
>
>             Assuming your reading is correct, and if necessary complemented by my
>             remarks above, I'd be
>             interested in hearing from you about any issues you may see with the BR gov
>             comments.
>             Thanks,
>
>             Mawaki
>
>             >
>             > 3. ICANN doesn't have to change its form, but it needs a form where
>             governments are comfortable.
>             >
>             > (And, as it happens, the corporate form is not such a form....)
>             >
>             >
>             > What am I missing?
>             >
>             >
>             >
>             > On Sat, 6 Jun 2015, Carlos A. Afonso wrote:
>             >
>             >> For the ones who are following the IANA transition process: attached
>             >> please find the comments posted by the government of Brazil on June 03,
>             >> 2015, in response to the call for public comments on the
>             >> CCWG-Accountability Initial Draft Proposal.
>             >>
>             >> I generally agree with the comments.
>             >>
>             >> fraternal regards
>             >>
>             >> --c.a.
>             >>
>             >
>             > --
>             > A. Michael Froomkin, http://law.tm
>             > Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
>             > Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
>             > Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
>             > U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
>             >                         -->It's warm here.<--
>             > ____________________________________________________________
>             >
>             > You received this message as a subscriber on the list:
>             >
>             >      governance at lists.igcaucus.org
>             >
>             > To be removed from the list, visit:
>             >
>             >      http://www.igcaucus.org/unsubscribing
>             >
>             >
>             >
>             > For all other list information and functions, see:
>             >
>             >      http://lists.igcaucus.org/info/governance
>             >
>             > To edit your profile and to find the IGC's charter, see:
>             >
>             >      http://www.igcaucus.org/
>             >
>             >
>             >
>             > Translate this email: http://translate.google.com/translate_t
>             >
>             >                                                                          
>                                    
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-- 
A. Michael Froomkin, http://law.tm
Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
                         -->It's warm here.<--
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From matthias.kettemann at gmail.com  Tue Jun  9 10:09:40 2015
From: matthias.kettemann at gmail.com (Matthias C. Kettemann)
Date: Tue, 9 Jun 2015 16:09:40 +0200
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <2DA93620FC07494C926D60C8E3C2F1A801642F6D@server1.medienkomm.uni-halle.de>
References: <557378D2.6030503@cafonso.ca>
	<alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu>
	<CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com>
	<alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu>
	<5576ED01.9010606@itforchange.net>
	<2DA93620FC07494C926D60C8E3C2F1A801642F6D@server1.medienkomm.uni-halle.de>
Message-ID: <CALjW9_=P77YShy9FqdveqPTOWsHpPUnu8E9a7FUuHVZ8xRCeeQ@mail.gmail.com>

Dear all,

we should really be careful in using legal terminology. "International
jurisdiction" usually means that in light of an international set of facts
the courts of a certain country will be most suited to hear the case (see
e.g. here
<http://ec.europa.eu/justice/glossary/international-jurisdiction_en.htm>).
Conflicts of jurisdiciton (and conflicts of law) are a daily occurence in
online settings. International courts, however, are a different matter
entirely. They are few and far between and, in their present design, are
not in a position to ensure accountability. For that we need more permanent
oversight structures. I'm not convinced that only a national legal anchor
can do the trick. International law, however, does not yet provide for
accountability structures for the 'management' and administration of the
stability, security etc. of the global Internet.

Kind regards

Matthias


On Tue, Jun 9, 2015 at 3:49 PM, "Kleinwächter, Wolfgang" <
wolfgang.kleinwaechter at medienkomm.uni-halle.de> wrote:

> Hi Parminder,
>
> can you specify what do you understand under "international jurisdiction"?
> Do you want to create an "International (Internet) Court"? Do you want to
> have ICANN under the International Court of Justice in The Hague?
> International Courts are created by intergovernmental treaties. Here is a
> list of "International Courts":
> http://en.wikipedia.org/wiki/International_court.
>
> Wolfgang
>
>
>
>
>
>
> -----Ursprüngliche Nachricht-----
> Von: governance-request at lists.igcaucus.org im Auftrag von parminder
> Gesendet: Di 09.06.2015 15:41
> An: governance at lists.igcaucus.org; Michael Froomkin - U.Miami School of
> Law; Mawaki Chango
> Betreff: Re: [governance] IANA transition - BR Gov comments on the
> CCWG-Accountability Draft Proposal
>
>
>
> On Tuesday 09 June 2015 06:26 PM, Michael Froomkin - U.Miami School of
> Law wrote:
> >
> > I think that bodies which do not need to fear supervision by
> > legitimate courts end up like FIFA. FIFA had a legal status in
> > Switzerland that basically insulated it the way that the Brazilian
> > document seems to suggest would be what they want for ICANN.  (It's
> > also the legal status ICANN has at times suggested it would like.)
> >
> > The lesson of history seems unusually clear here.
>
> Agree that ICANN cannot be left jurisdictionally un-supervised - that
> may be even more dangerous than the present situation. However, the
> right supervision or oversight is of international jurisdiction and law,
> not that of the US . This is what Brazil has to make upfront as the
> implication of what it is really seeking, and its shyness and reticence
> to say so is what I noted as surprising in an earlier email in this
> thread. Not putting out clearly what exactly it wants would lead to
> misconceptions about its position, which IMHO can be seen from how
> Michael reads it.  I am sure this is not how Brazil meant it - to free
> ICANN from all kinds of jurisdictional oversight whatsoever - but then
> Brazil needs to say clearly what is it that it wants, and how can it can
> obtained. Brazil, please come out of your NetMundial hangover and take
> political responsibility for what you say and seek!
>
> parminder
>
>
> >
> > On Tue, 9 Jun 2015, Mawaki Chango wrote:
> >
> >>
> >> It's good to see a law scholar involved in this discussion. I'll
> >> leave it to the Brazilian party to
> >> ultimate tell whether your reading is correct or not. In the meantime
> >> I'd volunteer the following
> >> comments.
> >>
> >> On Jun 8, 2015 10:46 PM, "Michael Froomkin - U.Miami School of Law"
> >> <froomkin at law.miami.edu> wrote:
> >> >
> >> > Perhaps I'm misreading something, but I read this document to make
> >> the following assertions:
> >> >
> >> > 1. All restrictions on ICANN's location must be removed.
> >> >
> >>
> >> And the question reopened for deliberation by all stakeholders,
> >> including governments among others.
> >> Only the outcome of such deliberation will be fully legitimate within
> >> the framework of the post-2015
> >> ICANN.
> >>
> >> > 2. ICANN does not have to leave the US but must be located in a
> >> place where the governing law has
> >> certain characteristics, including not having the possibiliity that
> >> courts overrule ICANN (or at
> >> least the IRP).
> >> >
> >> > (And, as it happens, the US is not such a place....)
> >> >
> >>
> >> Not only avoiding courts overruling relevant outcomes of the Internet
> >> global community processes,
> >> but also examining and resolving the possible interferences/conflicts
> >> that might arise for
> >> government representatives being subject to a foreign country law
> >> simply in the process of attending
> >> to their regular duties (if they were to be fully engaged with ICANN).
> >>
> >> Quote:
> >> "From the Brazilian perspective the existing structure clearly imposes
> limits to the participation
> >>
> > ??
> > ?of governmental representatives, as it is unlikely that a
> representative of a foreign government wi
> >> ll be authorized (by its own government) to formally accept a position
> in a body pertaining to a U.
> >>
> >> S. corporation."
> >>
> >> This may be what you're getting at with your point 3 below, but I'm
> >> not sure whether the problem is
> >> only the fact that governments have to deal with a corporate form/law
> >> or whether it is altogether
> >> the fact that it is a single country law without any form of
> >> deliberate endorsement by the other
> >> governments (who also have law making power in their respective
> >> country just as the US government).
> >>
> >> Assuming your reading is correct, and if necessary complemented by my
> >> remarks above, I'd be
> >> interested in hearing from you about any issues you may see with the
> >> BR gov comments.
> >> Thanks,
> >>
> >> Mawaki
> >>
> >> >
> >> > 3. ICANN doesn't have to change its form, but it needs a form where
> >> governments are comfortable.
> >> >
> >> > (And, as it happens, the corporate form is not such a form....)
> >> >
> >> >
> >> > What am I missing?
> >> >
> >> >
> >> >
> >> > On Sat, 6 Jun 2015, Carlos A. Afonso wrote:
> >> >
> >> >> For the ones who are following the IANA transition process: attached
> >> >> please find the comments posted by the government of Brazil on
> >> June 03,
> >> >> 2015, in response to the call for public comments on the
> >> >> CCWG-Accountability Initial Draft Proposal.
> >> >>
> >> >> I generally agree with the comments.
> >> >>
> >> >> fraternal regards
> >> >>
> >> >> --c.a.
> >> >>
> >> >
> >> > --
> >> > A. Michael Froomkin, http://law.tm
> >> > Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
> >> > Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
> >> > Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
> >> > U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> >> >                         -->It's warm here.<--
> >> > ____________________________________________________________
> >> >
> >> > You received this message as a subscriber on the list:
> >> >
> >> >      governance at lists.igcaucus.org
> >> >
> >> > To be removed from the list, visit:
> >> >
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> >> >
> >> >
> >> >
> >> > For all other list information and functions, see:
> >> >
> >> >      http://lists.igcaucus.org/info/governance
> >> >
> >> > To edit your profile and to find the IGC's charter, see:
> >> >
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> >> >
> >> >
> >> >
> >> > Translate this email: http://translate.google.com/translate_t
> >> >
> >> >
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >> > ____________________________________________________________
> >> > You received this message as a subscriber on the list:
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> >>
> >>
> >
> >
> >
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>


-- 

Dr. Matthias C. Kettemann, LL.M. (Harvard)
Post-Doc Fellow | Cluster of Excellence „
<http://www.normativeorders.net/de/organisation/mitarbeiter-a-z/person/442>Normative
Orders
<http://www.normativeorders.net/de/organisation/mitarbeiter-a-z/person/442>”
<http://www.normativeorders.net/de/organisation/mitarbeiter-a-z/person/442>,
University of Frankfurt am Main
Lecturer | Institute of International Law andInternational Relations
<http://voelkerrecht.uni-graz.at/en/>, University of Graz
<http://trainingszentrum-menschenrechte.uni-graz.at/en/infos-fuer-studierende/>

Goethe-Universität Frankfurt am Main
Exzellenzcluster „Normative Ordnungen“
Max-Horkheimer-Straße 2
60629 Frankfurt am Main / Germany

E | matthias.kettemann at gmail.com
Blog <http://internationallawandtheinternet.blogspot.com/> | SSRN
<http://ssrn.com/author=1957909> | Google Scholar
<http://scholar.google.ch/citations?user=8jRGt2QAAAAJ> | Twitter
<http://twitter.com/#%21/MCKettemann> | Facebook
<http://www.facebook.com/matthias.kettemann> | Google+
<https://plus.google.com/u/0/116310540881122884114/posts>

Recent publications:
The Common Interest in International Law (2014, co-editor)
<http://www.intersentia.co.uk/searchDetail.aspx?bookId=103066&authors=Wolfgang>
European Yearbook on Human Rights 2014 (2014, co-editor)
<http://www.nwv.at/recht/verfassungsrecht/1077_european_yearbook_on_human_rights_2014/>
Freedom of Expression and the Internet (2014, co-author)
<https://book.coe.int/eur/en/human-rights-and-democracy/5810-freedom-of-expression-and-the-internet.html>
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From parminder at itforchange.net  Tue Jun  9 10:48:37 2015
From: parminder at itforchange.net (parminder)
Date: Tue, 09 Jun 2015 20:18:37 +0530
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <CALjW9_=P77YShy9FqdveqPTOWsHpPUnu8E9a7FUuHVZ8xRCeeQ@mail.gmail.com>
References: <557378D2.6030503@cafonso.ca>	<alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu>	<CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com>	<alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu>	<5576ED01.9010606@itforchange.net>	<2DA93620FC07494C926D60C8E3C2F1A801642F6D@server1.medienkomm.uni-halle.de> <CALjW9_=P77YShy9FqdveqPTOWsHpPUnu8E9a7FUuHVZ8xRCeeQ@mail.gmail.com>
Message-ID: <5576FCC5.7030309@itforchange.net>



On Tuesday 09 June 2015 07:39 PM, Matthias C. Kettemann wrote:
> Dear all,
>
> we should really be careful in using legal terminology. "International
> jurisdiction" usually means that in light of an international set of
> facts the courts of a certain country will be most suited to hear the
> case (see e.g. here
> <http://ec.europa.eu/justice/glossary/international-jurisdiction_en.htm>).

That is one definition of the term, looking at it from a domestic point
of view. Here <International%20jurisdiction> is another way to look at
it, coming from a global point of view - and of course this current
discussion comes from a global point of view.

> Conflicts of jurisdiciton (and conflicts of law) are a daily occurence
> in online settings. International courts, however, are a different
> matter entirely. They are few and far between and, in their present
> design, are not in a position to ensure accountability. For that we
> need more permanent oversight structures. I'm not convinced that only
> a national legal anchor can do the trick.

That is the point. So then what international option do we have? If we
are to live a common digital future, with an adequately global Internet,
we have to find the necessary legal and political ways to do it, even if
they do not exist today. I am much more convinced than others here that
there is enough existing that can be evolved in the right direction -
but to do that the political will has to first be stated and worked with.

If international law and jurisdiction can be begun to be evolved in such
a complex and contested area like international crime, it should
certainly be so much easier to do with regard to management of basic
techno-logical infrastructure of the Internet, where there is, at least
at present, so less to dispute, and the positive advantage so huge.

Please note this sentence from the submission of Roberto Bissio, a top
global civil society leader, made to the CCWG process - he is an
official adviser to the process. (This submission was earlier forwarded
by Carlos to these elists, but I am enclosing it again.)

"The International Criminal Court was negotiated and ratified in as much
time as the discussion of the governance of ICANN is already taking."

Does this say something?

And do we not know what kind of international innovations are daily
invented, like in the area of IP enforcement, and trade dispute
settlement, and now also 'investor protection' for global corporates
from domestic policies/ law and even courts, when it is in the interest
of the most powerful countries. Why do we then shy away from
institutional innovations when genuine public interest is involved. It
is a case of greater internationalisation where it suits them, and full
scepticism about international law and jurisdiction where is does not.
That is not ok.

parminder



> International law, however, does not yet provide for accountability
> structures for the 'management' and administration of the stability,
> security etc. of the global Internet.
>
> Kind regards
>
> Matthias
>
>
> On Tue, Jun 9, 2015 at 3:49 PM, "Kleinwächter, Wolfgang"
> <wolfgang.kleinwaechter at medienkomm.uni-halle.de
> <mailto:wolfgang.kleinwaechter at medienkomm.uni-halle.de>> wrote:
>
>     Hi Parminder,
>
>     can you specify what do you understand under "international
>     jurisdiction"? Do you want to create an "International (Internet)
>     Court"? Do you want to have ICANN under the International Court of
>     Justice in The Hague? International Courts are created by
>     intergovernmental treaties. Here is a list of "International Courts":
>     http://en.wikipedia.org/wiki/International_court.
>
>     Wolfgang
>
>
>
>
>
>
>     -----Ursprüngliche Nachricht-----
>     Von: governance-request at lists.igcaucus.org
>     <mailto:governance-request at lists.igcaucus.org> im Auftrag von
>     parminder
>     Gesendet: Di 09.06.2015 15 <tel:09.06.2015%2015>:41
>     An: governance at lists.igcaucus.org
>     <mailto:governance at lists.igcaucus.org>; Michael Froomkin - U.Miami
>     School of Law; Mawaki Chango
>     Betreff: Re: [governance] IANA transition - BR Gov comments on the
>     CCWG-Accountability Draft Proposal
>
>
>
>     On Tuesday 09 June 2015 06:26 PM, Michael Froomkin - U.Miami School of
>     Law wrote:
>     >
>     > I think that bodies which do not need to fear supervision by
>     > legitimate courts end up like FIFA. FIFA had a legal status in
>     > Switzerland that basically insulated it the way that the Brazilian
>     > document seems to suggest would be what they want for ICANN.  (It's
>     > also the legal status ICANN has at times suggested it would like.)
>     >
>     > The lesson of history seems unusually clear here.
>
>     Agree that ICANN cannot be left jurisdictionally un-supervised - that
>     may be even more dangerous than the present situation. However, the
>     right supervision or oversight is of international jurisdiction
>     and law,
>     not that of the US . This is what Brazil has to make upfront as the
>     implication of what it is really seeking, and its shyness and
>     reticence
>     to say so is what I noted as surprising in an earlier email in this
>     thread. Not putting out clearly what exactly it wants would lead to
>     misconceptions about its position, which IMHO can be seen from how
>     Michael reads it.  I am sure this is not how Brazil meant it - to free
>     ICANN from all kinds of jurisdictional oversight whatsoever - but then
>     Brazil needs to say clearly what is it that it wants, and how can
>     it can
>     obtained. Brazil, please come out of your NetMundial hangover and take
>     political responsibility for what you say and seek!
>
>     parminder
>
>
>     >
>     > On Tue, 9 Jun 2015, Mawaki Chango wrote:
>     >
>     >>
>     >> It's good to see a law scholar involved in this discussion. I'll
>     >> leave it to the Brazilian party to
>     >> ultimate tell whether your reading is correct or not. In the
>     meantime
>     >> I'd volunteer the following
>     >> comments.
>     >>
>     >> On Jun 8, 2015 10:46 PM, "Michael Froomkin - U.Miami School of Law"
>     >> <froomkin at law.miami.edu <mailto:froomkin at law.miami.edu>> wrote:
>     >> >
>     >> > Perhaps I'm misreading something, but I read this document to
>     make
>     >> the following assertions:
>     >> >
>     >> > 1. All restrictions on ICANN's location must be removed.
>     >> >
>     >>
>     >> And the question reopened for deliberation by all stakeholders,
>     >> including governments among others.
>     >> Only the outcome of such deliberation will be fully legitimate
>     within
>     >> the framework of the post-2015
>     >> ICANN.
>     >>
>     >> > 2. ICANN does not have to leave the US but must be located in a
>     >> place where the governing law has
>     >> certain characteristics, including not having the possibiliity that
>     >> courts overrule ICANN (or at
>     >> least the IRP).
>     >> >
>     >> > (And, as it happens, the US is not such a place....)
>     >> >
>     >>
>     >> Not only avoiding courts overruling relevant outcomes of the
>     Internet
>     >> global community processes,
>     >> but also examining and resolving the possible
>     interferences/conflicts
>     >> that might arise for
>     >> government representatives being subject to a foreign country law
>     >> simply in the process of attending
>     >> to their regular duties (if they were to be fully engaged with
>     ICANN).
>     >>
>     >> Quote:
>     >> "From the Brazilian perspective the existing structure clearly
>     imposes limits to the participation
>     >>
>     > ??
>     > ?of governmental representatives, as it is unlikely that a
>     representative of a foreign government wi
>     >> ll be authorized (by its own government) to formally accept a
>     position in a body pertaining to a U.
>     >>
>     >> S. corporation."
>     >>
>     >> This may be what you're getting at with your point 3 below, but I'm
>     >> not sure whether the problem is
>     >> only the fact that governments have to deal with a corporate
>     form/law
>     >> or whether it is altogether
>     >> the fact that it is a single country law without any form of
>     >> deliberate endorsement by the other
>     >> governments (who also have law making power in their respective
>     >> country just as the US government).
>     >>
>     >> Assuming your reading is correct, and if necessary complemented
>     by my
>     >> remarks above, I'd be
>     >> interested in hearing from you about any issues you may see
>     with the
>     >> BR gov comments.
>     >> Thanks,
>     >>
>     >> Mawaki
>     >>
>     >> >
>     >> > 3. ICANN doesn't have to change its form, but it needs a form
>     where
>     >> governments are comfortable.
>     >> >
>     >> > (And, as it happens, the corporate form is not such a form....)
>     >> >
>     >> >
>     >> > What am I missing?
>     >> >
>     >> >
>     >> >
>     >> > On Sat, 6 Jun 2015, Carlos A. Afonso wrote:
>     >> >
>     >> >> For the ones who are following the IANA transition process:
>     attached
>     >> >> please find the comments posted by the government of Brazil on
>     >> June 03,
>     >> >> 2015, in response to the call for public comments on the
>     >> >> CCWG-Accountability Initial Draft Proposal.
>     >> >>
>     >> >> I generally agree with the comments.
>     >> >>
>     >> >> fraternal regards
>     >> >>
>     >> >> --c.a.
>     >> >>
>     >> >
>     >> > --
>     >> > A. Michael Froomkin, http://law.tm
>     >> > Laurie Silvers & Mitchell Rubenstein Distinguished Professor
>     of Law
>     >> > Editor, Jotwell: The Journal of Things We Like (Lots), 
>     jotwell.com <http://jotwell.com>
>     >> > Program Chair, We Robot 2016 | +1 (305) 284-4285
>     <tel:%2B1%20%28305%29%20284-4285> |  froomkin at law.tm
>     <mailto:froomkin at law.tm>
>     >> > U. Miami School of Law, P.O. Box 248087, Coral Gables, FL
>     33124 USA
>     >> >                         -->It's warm here.<--
>     >> > ____________________________________________________________
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> <http://www.normativeorders.net/de/organisation/mitarbeiter-a-z/person/442>,
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From parminder at itforchange.net  Tue Jun  9 11:13:28 2015
From: parminder at itforchange.net (parminder)
Date: Tue, 09 Jun 2015 20:43:28 +0530
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <alpine.LRH.2.00.1506090955160.12194@post.law.miami.edu>
References: <557378D2.6030503@cafonso.ca> <alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu> <CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com> <alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu> <5576ED01.9010606@itforchange.net> <alpine.LRH.2.00.1506090955160.12194@post.law.miami.edu>
Message-ID: <55770298.20609@itforchange.net>

Are you saying that it is not possible for ICANN to undertake the
functions that it needs to undertake while being an international
institution incorporated under international law, and free from any
countries jurisdiction /i//n terms of its basic governance functions/? I
just want to be clear.

If so, that would be an interesting assertion. Now, I am sure this is
not true. However, I am not an international legal expert and not able
to right now build and present the whole scenario for you on how it can
be done. I am sure there are a number of international organisations
that do different kind of complex activities and have found ways to do
it under international law and jurisdiction. And if some new directions
and evolutions are needed that can also be worked out (please see my
last email on this count).

BTW it is a sad statement on the geo political economy of knowledge
production in this area that there is not one full fledged scenario
developed by anyone on how ICANN can undertakes its activities under
international law/ jurisdiction - which I am pretty sure it can. Many
parties, including governments have called for it, and yes I agree
someone should come up with a full politico-legal and institutional
description of how it can and should be done - with all the details in
place. And that is the sad part of it, of how things stand at the global
level, had now lopsided is resource distribution, all kinds of resources.

Not to shy away from responsibility - I am happy to collaborate with
anyone if someone can out time into it.

And no, it cannot be solved by any other country jurisdiction. Apart
from it being still being wrong in principle, how would US accept that
another jurisdiction is better than its own and accede to such a change.
Accepting the patently justified fact that an international
infrastructure should be governed internationally, on the other hand, is
much easier .

parminder

On Tuesday 09 June 2015 07:31 PM, Michael Froomkin - U.Miami School of
Law wrote:
> I don't know what it means to say that ICANN should be subject to
> "international jurisdiction and law".  For the relevant issues, that
> sounds like a pretty empty set.
>
> As regards most of the sort of things one might expect to worry about
> - e.g. fidelity to articles of incorporation - international law is
> basically silent.  And there is no relevant jurisdiction either.  So I
> remain stuck in the position that there must be a state anchor whose
> courts are given the job.  It does not of course need to be the US,
> although I would note that the US courts are by international
> standards not shy and actually fairly good at this sort of thing.
>
> I do think, however, that it should NOT be Switzerland, as its courts
> are historically over-deferential to international bodies - perhaps as
> part of state policy to be an attractive location for those
> high-spending international meetings.
>
> I'd be real happy with Canada, though.
>
> On Tue, 9 Jun 2015, parminder wrote:
>
>>
>>
>> On Tuesday 09 June 2015 06:26 PM, Michael Froomkin - U.Miami School
>> of Law wrote:
>>
>>       I think that bodies which do not need to fear supervision by
>> legitimate courts end up
>>       like FIFA. FIFA had a legal status in Switzerland that
>> basically insulated it the way
>>       that the Brazilian document seems to suggest would be what they
>> want for ICANN.  (It's
>>       also the legal status ICANN has at times suggested it would like.)
>>
>>       The lesson of history seems unusually clear here.
>>
>>
>> Agree that ICANN cannot be left jurisdictionally un-supervised - that
>> may be even more dangerous
>> than the present situation. However, the right supervision or
>> oversight is of international
>> jurisdiction and law, not that of the US . This is what Brazil has to
>> make upfront as the
>> implication of what it is really seeking, and its shyness and
>> reticence to say so is what I noted as
>> surprising in an earlier email in this thread. Not putting out
>> clearly what exactly it wants would
>> lead to misconceptions about its position, which IMHO can be seen
>> from how Michael reads it.  I am
>> sure this is not how Brazil meant it - to free ICANN from all kinds
>> of jurisdictional oversight
>> whatsoever - but then Brazil needs to say clearly what is it that it
>> wants, and how can it can
>> obtained. Brazil, please come out of your NetMundial hangover and
>> take political responsibility for
>> what you say and seek!
>>
>> parminder
>>
>>
>>
>>       On Tue, 9 Jun 2015, Mawaki Chango wrote:
>>
>>
>>             It's good to see a law scholar involved in this
>> discussion. I'll leave it to
>>             the Brazilian party to
>>             ultimate tell whether your reading is correct or not. In
>> the meantime I'd
>>             volunteer the following
>>             comments.
>>
>>             On Jun 8, 2015 10:46 PM, "Michael Froomkin - U.Miami
>> School of Law"
>>             <froomkin at law.miami.edu> wrote:
>>             >
>>             > Perhaps I'm misreading something, but I read this
>> document to make the
>>             following assertions:
>>             >
>>             > 1. All restrictions on ICANN's location must be removed.
>>             >
>>
>>             And the question reopened for deliberation by all
>> stakeholders, including
>>             governments among others.
>>             Only the outcome of such deliberation will be fully
>> legitimate within the
>>             framework of the post-2015
>>             ICANN.
>>
>>             > 2. ICANN does not have to leave the US but must be
>> located in a place
>>             where the governing law has
>>             certain characteristics, including not having the
>> possibiliity that courts
>>             overrule ICANN (or at
>>             least the IRP).
>>             >
>>             > (And, as it happens, the US is not such a place....)
>>             >
>>
>>             Not only avoiding courts overruling relevant outcomes of
>> the Internet global
>>             community processes,
>>             but also examining and resolving the possible
>> interferences/conflicts that
>>             might arise for
>>             government representatives being subject to a foreign
>> country law simply in
>>             the process of attending
>>             to their regular duties (if they were to be fully engaged
>> with ICANN).
>>
>>             Quote:
>>            
>> "From the Brazilian perspective the existing structure clearly imposes limits to the participation
>>
>>      
>> ???of governmental representatives, as it is unlikely that a representative of a foreign government w
>>       i
>> ll be authorized (by its own government) to formally accept a position in a body pertaining to a U.
>>
>>
>>             S. corporation."
>>
>>             This may be what you're getting at with your point 3
>> below, but I'm not sure
>>             whether the problem is
>>             only the fact that governments have to deal with a
>> corporate form/law or
>>             whether it is altogether
>>             the fact that it is a single country law without any form
>> of deliberate
>>             endorsement by the other
>>             governments (who also have law making power in their
>> respective country just
>>             as the US government).
>>
>>             Assuming your reading is correct, and if necessary
>> complemented by my
>>             remarks above, I'd be
>>             interested in hearing from you about any issues you may
>> see with the BR gov
>>             comments.
>>             Thanks,
>>
>>             Mawaki
>>
>>             >
>>             > 3. ICANN doesn't have to change its form, but it needs
>> a form where
>>             governments are comfortable.
>>             >
>>             > (And, as it happens, the corporate form is not such a
>> form....)
>>             >
>>             >
>>             > What am I missing?
>>             >
>>             >
>>             >
>>             > On Sat, 6 Jun 2015, Carlos A. Afonso wrote:
>>             >
>>             >> For the ones who are following the IANA transition
>> process: attached
>>             >> please find the comments posted by the government of
>> Brazil on June 03,
>>             >> 2015, in response to the call for public comments on the
>>             >> CCWG-Accountability Initial Draft Proposal.
>>             >>
>>             >> I generally agree with the comments.
>>             >>
>>             >> fraternal regards
>>             >>
>>             >> --c.a.
>>             >>
>>             >
>>             > --
>>             > A. Michael Froomkin, http://law.tm
>>             > Laurie Silvers & Mitchell Rubenstein Distinguished
>> Professor of Law
>>             > Editor, Jotwell: The Journal of Things We Like (Lots), 
>> jotwell.com
>>             > Program Chair, We Robot 2016 | +1 (305) 284-4285 | 
>> froomkin at law.tm
>>             > U. Miami School of Law, P.O. Box 248087, Coral Gables,
>> FL 33124 USA
>>             >                         -->It's warm here.<--
>>             >
>> ____________________________________________________________
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>>             >                                                        
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>>             >
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From bdelachapelle at gmail.com  Tue Jun  9 11:21:08 2015
From: bdelachapelle at gmail.com (Bertrand de La Chapelle)
Date: Tue, 9 Jun 2015 17:21:08 +0200
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <5576FCC5.7030309@itforchange.net>
References: <557378D2.6030503@cafonso.ca> <alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu>
 <CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com>
 <alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu> <5576ED01.9010606@itforchange.net>
 <2DA93620FC07494C926D60C8E3C2F1A801642F6D@server1.medienkomm.uni-halle.de>
 <CALjW9_=P77YShy9FqdveqPTOWsHpPUnu8E9a7FUuHVZ8xRCeeQ@mail.gmail.com> <5576FCC5.7030309@itforchange.net>
Message-ID: <CAGF_KH8JKx1NrPU40zqXJBbZLjUVFsO=1ZFucL=EE_0PxDW2LA@mail.gmail.com>

Parminder,

The link does not seem to work in your paragraph below. Can you :

*That is one definition of the term, looking at it from a domestic point of
view. Here <http://international%20jurisdiction/> is another way to look at
it, coming from a global point of view - and of course this current
discussion comes from a global point of view. *


As for setting ICANN "under international law", unless I am mistaken (and I
may very well overlook other ways), I see basically three ways:

   1. the traditional one for the creation of international organizations,
   ie: an intergovernmental treaty
   2. providing ICANN in whatever jurisdiction it may be incorporated (US
   or other), with privileges and immunities that would make its decisions non
   susceptible of recourse in front of the local courts
   3. invent a new type of international organization, founded by a
   diversity of stakeholders (and not only governments), with appropriate
   independence and guarantees


Are you advocating in favor of option 1)?

Would you be amenable to option 2), if there are sufficient accountability
mechanisms (including the enhanced IRP proposed by the CCWG)?

Do you have suggestions regarding option 3)? We would all be happy to
identify a new approach.

Best

Bertrand




"*Le plus beau métier des hommes, c'est d'unir les hommes*", Antoine de
Saint Exupéry
("*There is no greater mission for humans than uniting humans*")BERTRAND DE
LA CHAPELLEInternet & Jurisdiction Project | Directoremail
bdelachapelle at internetjurisdiction.netemail bdelachapelle at gmail.comtwitter
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<https://twitter.com/bdelachapelle>mobile +33 (0)6 11 88 33 32
www.internetjurisdiction.net[image: A GLOBAL MULTI-STAKEHOLDER DIALOGUE
PROCESS]

On Tue, Jun 9, 2015 at 4:48 PM, parminder <parminder at itforchange.net> wrote:

>
>
> On Tuesday 09 June 2015 07:39 PM, Matthias C. Kettemann wrote:
>
> Dear all,
>
> we should really be careful in using legal terminology. "International
> jurisdiction" usually means that in light of an international set of facts
> the courts of a certain country will be most suited to hear the case (see
> e.g. here
> <http://ec.europa.eu/justice/glossary/international-jurisdiction_en.htm>).
>
>
> That is one definition of the term, looking at it from a domestic point of
> view. Here <http://International%20jurisdiction> is another way to look
> at it, coming from a global point of view - and of course this current
> discussion comes from a global point of view.
>
>   Conflicts of jurisdiciton (and conflicts of law) are a daily occurence
> in online settings. International courts, however, are a different matter
> entirely. They are few and far between and, in their present design, are
> not in a position to ensure accountability. For that we need more permanent
> oversight structures. I'm not convinced that only a national legal anchor
> can do the trick.
>
>
> That is the point. So then what international option do we have? If we are
> to live a common digital future, with an adequately global Internet, we
> have to find the necessary legal and political ways to do it, even if they
> do not exist today. I am much more convinced than others here that there is
> enough existing that can be evolved in the right direction - but to do that
> the political will has to first be stated and worked with.
>
> If international law and jurisdiction can be begun to be evolved in such a
> complex and contested area like international crime, it should certainly be
> so much easier to do with regard to management of basic techno-logical
> infrastructure of the Internet, where there is, at least at present, so
> less to dispute, and the positive advantage so huge.
>
> Please note this sentence from the submission of Roberto Bissio, a top
> global civil society leader, made to the CCWG process - he is an official
> adviser to the process. (This submission was earlier forwarded by Carlos to
> these elists, but I am enclosing it again.)
>
> "The International Criminal Court was negotiated and ratified in as much
> time as the discussion of the governance of ICANN is already taking."
>
> Does this say something?
>
> And do we not know what kind of international innovations are daily
> invented, like in the area of IP enforcement, and trade dispute settlement,
> and now also 'investor protection' for global corporates from domestic
> policies/ law and even courts, when it is in the interest of the most
> powerful countries. Why do we then shy away from institutional innovations
> when genuine public interest is involved. It is a case of greater
> internationalisation where it suits them, and full scepticism about
> international law and jurisdiction where is does not. That is not ok.
>
> parminder
>
>
>
>  International law, however, does not yet provide for accountability
> structures for the 'management' and administration of the stability,
> security etc. of the global Internet.
>
>  Kind regards
>
> Matthias
>
>
> On Tue, Jun 9, 2015 at 3:49 PM, "Kleinwächter, Wolfgang" <
> wolfgang.kleinwaechter at medienkomm.uni-halle.de> wrote:
>
>> Hi Parminder,
>>
>> can you specify what do you understand under "international
>> jurisdiction"? Do you want to create an "International (Internet) Court"?
>> Do you want to have ICANN under the International Court of Justice in The
>> Hague? International Courts are created by intergovernmental treaties. Here
>> is a list of "International Courts":
>> http://en.wikipedia.org/wiki/International_court.
>>
>> Wolfgang
>>
>>
>>
>>
>>
>>
>> -----Ursprüngliche Nachricht-----
>> Von: governance-request at lists.igcaucus.org im Auftrag von parminder
>> Gesendet: Di 09.06.2015 15 <09.06.2015%2015>:41
>> An: governance at lists.igcaucus.org; Michael Froomkin - U.Miami School of
>> Law; Mawaki Chango
>> Betreff: Re: [governance] IANA transition - BR Gov comments on the
>> CCWG-Accountability Draft Proposal
>>
>>
>>
>> On Tuesday 09 June 2015 06:26 PM, Michael Froomkin - U.Miami School of
>> Law wrote:
>> >
>> > I think that bodies which do not need to fear supervision by
>> > legitimate courts end up like FIFA. FIFA had a legal status in
>> > Switzerland that basically insulated it the way that the Brazilian
>> > document seems to suggest would be what they want for ICANN.  (It's
>> > also the legal status ICANN has at times suggested it would like.)
>> >
>> > The lesson of history seems unusually clear here.
>>
>> Agree that ICANN cannot be left jurisdictionally un-supervised - that
>> may be even more dangerous than the present situation. However, the
>> right supervision or oversight is of international jurisdiction and law,
>> not that of the US . This is what Brazil has to make upfront as the
>> implication of what it is really seeking, and its shyness and reticence
>> to say so is what I noted as surprising in an earlier email in this
>> thread. Not putting out clearly what exactly it wants would lead to
>> misconceptions about its position, which IMHO can be seen from how
>> Michael reads it.  I am sure this is not how Brazil meant it - to free
>> ICANN from all kinds of jurisdictional oversight whatsoever - but then
>> Brazil needs to say clearly what is it that it wants, and how can it can
>> obtained. Brazil, please come out of your NetMundial hangover and take
>> political responsibility for what you say and seek!
>>
>> parminder
>>
>>
>> >
>> > On Tue, 9 Jun 2015, Mawaki Chango wrote:
>> >
>> >>
>> >> It's good to see a law scholar involved in this discussion. I'll
>> >> leave it to the Brazilian party to
>> >> ultimate tell whether your reading is correct or not. In the meantime
>> >> I'd volunteer the following
>> >> comments.
>> >>
>> >> On Jun 8, 2015 10:46 PM, "Michael Froomkin - U.Miami School of Law"
>> >> <froomkin at law.miami.edu> wrote:
>> >> >
>> >> > Perhaps I'm misreading something, but I read this document to make
>> >> the following assertions:
>> >> >
>> >> > 1. All restrictions on ICANN's location must be removed.
>> >> >
>> >>
>> >> And the question reopened for deliberation by all stakeholders,
>> >> including governments among others.
>> >> Only the outcome of such deliberation will be fully legitimate within
>> >> the framework of the post-2015
>> >> ICANN.
>> >>
>> >> > 2. ICANN does not have to leave the US but must be located in a
>> >> place where the governing law has
>> >> certain characteristics, including not having the possibiliity that
>> >> courts overrule ICANN (or at
>> >> least the IRP).
>> >> >
>> >> > (And, as it happens, the US is not such a place....)
>> >> >
>> >>
>> >> Not only avoiding courts overruling relevant outcomes of the Internet
>> >> global community processes,
>> >> but also examining and resolving the possible interferences/conflicts
>> >> that might arise for
>> >> government representatives being subject to a foreign country law
>> >> simply in the process of attending
>> >> to their regular duties (if they were to be fully engaged with ICANN).
>> >>
>> >> Quote:
>> >> "From the Brazilian perspective the existing structure clearly imposes
>> limits to the participation
>> >>
>> > ??
>> > ?of governmental representatives, as it is unlikely that a
>> representative of a foreign government wi
>> >> ll be authorized (by its own government) to formally accept a position
>> in a body pertaining to a U.
>> >>
>> >> S. corporation."
>> >>
>> >> This may be what you're getting at with your point 3 below, but I'm
>> >> not sure whether the problem is
>> >> only the fact that governments have to deal with a corporate form/law
>> >> or whether it is altogether
>> >> the fact that it is a single country law without any form of
>> >> deliberate endorsement by the other
>> >> governments (who also have law making power in their respective
>> >> country just as the US government).
>> >>
>> >> Assuming your reading is correct, and if necessary complemented by my
>> >> remarks above, I'd be
>> >> interested in hearing from you about any issues you may see with the
>> >> BR gov comments.
>> >> Thanks,
>> >>
>> >> Mawaki
>> >>
>> >> >
>> >> > 3. ICANN doesn't have to change its form, but it needs a form where
>> >> governments are comfortable.
>> >> >
>> >> > (And, as it happens, the corporate form is not such a form....)
>> >> >
>> >> >
>> >> > What am I missing?
>> >> >
>> >> >
>> >> >
>> >> > On Sat, 6 Jun 2015, Carlos A. Afonso wrote:
>> >> >
>> >> >> For the ones who are following the IANA transition process: attached
>> >> >> please find the comments posted by the government of Brazil on
>> >> June 03,
>> >> >> 2015, in response to the call for public comments on the
>> >> >> CCWG-Accountability Initial Draft Proposal.
>> >> >>
>> >> >> I generally agree with the comments.
>> >> >>
>> >> >> fraternal regards
>> >> >>
>> >> >> --c.a.
>> >> >>
>> >> >
>> >> > --
>> >> > A. Michael Froomkin, http://law.tm
>> >> > Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
>> >> > Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
>> >> > Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
>> >> > U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
>> >> >                         -->It's warm here.<--
>> >> > ____________________________________________________________
>> >> >
>> >> > You received this message as a subscriber on the list:
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>> >> >      governance at lists.igcaucus.org
>> >> >
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>> >> >
>> >> >
>> >> >
>> >> > For all other list information and functions, see:
>> >> >
>> >> >      http://lists.igcaucus.org/info/governance
>> >> >
>> >> > To edit your profile and to find the IGC's charter, see:
>> >> >
>> >> >      http://www.igcaucus.org/
>> >> >
>> >> >
>> >> >
>> >> > Translate this email: http://translate.google.com/translate_t
>> >> >
>> >> >
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >> > ____________________________________________________________
>> >> > You received this message as a subscriber on the list:
>> >> >      governance at lists.igcaucus.org
>> >> > To be removed from the list, visit:
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>> >> >
>> >> > For all other list information and functions, see:
>> >> >      http://lists.igcaucus.org/info/governance
>> >> > To edit your profile and to find the IGC's charter, see:
>> >> >      http://www.igcaucus.org/
>> >> >
>> >> > Translate this email: http://translate.google.com/translate_t
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>> >>
>> >>
>> >>
>> >
>> >
>> >
>> > ____________________________________________________________
>> > You received this message as a subscriber on the list:
>> >      governance at lists.igcaucus.org
>> > To be removed from the list, visit:
>> >      http://www.igcaucus.org/unsubscribing
>> >
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>> >      http://www.igcaucus.org/
>> >
>> > Translate this email: http://translate.google.com/translate_t
>> >
>> >
>> > ____________________________________________________________
>> > You received this message as a subscriber on the list:
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>> > To be removed from the list, visit:
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>>
>>
>> ____________________________________________________________
>> You received this message as a subscriber on the list:
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>>
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>>
>> Translate this email: http://translate.google.com/translate_t
>>
>>
>
>
> --
>
> Dr. Matthias C. Kettemann, LL.M. (Harvard)
> Post-Doc Fellow | Cluster of Excellence „
> <http://www.normativeorders.net/de/organisation/mitarbeiter-a-z/person/442>Normative
> Orders
> <http://www.normativeorders.net/de/organisation/mitarbeiter-a-z/person/442>
> ”
> <http://www.normativeorders.net/de/organisation/mitarbeiter-a-z/person/442>,
> University of Frankfurt am Main
> Lecturer | Institute of International Law andInternational Relations
> <http://voelkerrecht.uni-graz.at/en/>, University of Graz
>
> <http://trainingszentrum-menschenrechte.uni-graz.at/en/infos-fuer-studierende/>
>
> Goethe-Universität Frankfurt am Main
> Exzellenzcluster „Normative Ordnungen“
> Max-Horkheimer-Straße 2
> 60629 Frankfurt am Main / Germany
>
> E | matthias.kettemann at gmail.com
> Blog <http://internationallawandtheinternet.blogspot.com/> | SSRN
> <http://ssrn.com/author=1957909> | Google Scholar
> <http://scholar.google.ch/citations?user=8jRGt2QAAAAJ> | Twitter
> <http://twitter.com/#%21/MCKettemann> | Facebook
> <http://www.facebook.com/matthias.kettemann> | Google+
> <https://plus.google.com/u/0/116310540881122884114/posts>
>
> Recent publications:
> The Common Interest in International Law (2014, co-editor)
> <http://www.intersentia.co.uk/searchDetail.aspx?bookId=103066&authors=Wolfgang>
> European Yearbook on Human Rights 2014 (2014, co-editor)
> <http://www.nwv.at/recht/verfassungsrecht/1077_european_yearbook_on_human_rights_2014/>
> Freedom of Expression and the Internet (2014, co-author)
> <https://book.coe.int/eur/en/human-rights-and-democracy/5810-freedom-of-expression-and-the-internet.html>
>
>
>
>
> ____________________________________________________________
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From kichango at gmail.com  Tue Jun  9 11:30:58 2015
From: kichango at gmail.com (Mawaki Chango)
Date: Tue, 9 Jun 2015 15:30:58 +0000
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <03b601d0a2bf$eb5abcf0$c21036d0$@palage.com>
References: <557378D2.6030503@cafonso.ca>
	<alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu>
	<CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com>
	<alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu>
	<5576ED01.9010606@itforchange.net>
	<2DA93620FC07494C926D60C8E3C2F1A801642F6D@server1.medienkomm.uni-halle.de>
	<CALjW9_=P77YShy9FqdveqPTOWsHpPUnu8E9a7FUuHVZ8xRCeeQ@mail.gmail.com>
	<03b601d0a2bf$eb5abcf0$c21036d0$@palage.com>
Message-ID: <CACTo+v9WBfajsUdeQZ7nUS5frj7Q9bN5UJSamUwZPHFKxiJfvA@mail.gmail.com>

Just a question here...

Between one de facto national/country law such as US' and the FIFA scenario
(or a country where the courts might be too deferential to international
bodies), is there possibly room for some institutional creativity?

>From what BR gov is saying, simply replacing one country law with another
would not do the trick. If the community deliberation (involving also
governments) based on the systematic assessment of the jurisdiction
candidates short listed shows preference for US or Canada jurisdiction,
would it be possible at all then to put in place a protocol which any
governments may (and will be encouraged to) sign as a way of recognition of
the selected country law to govern ICANN matters?

That way, governments will still have a formal framework for their official
reps engaging in ICANN's activities (abiding by its valid decisions or
challenging them only in the recognized courts) without the need for an
international treaty?

Note that once the "legal status" question and the selection of law and
jurisdiction has been properly settled through a community due process, the
law and jurisdiction chosen will apply anyway. The protocol idea is for
governments who are willing to engage fully with ICANN and even assume
responsibility within the organization to have a formal ground and
framework to do so with regard to the governing law.

Make sense?

/Brought to you by Mawaki's droid agent
On Jun 9, 2015 2:23 PM, "Michael Palage" <mike at palage.com> wrote:

> Hello All,
>
>
>
> For those seeking clarification of “international” law/jurisdiction in the
> context of ICANN governance.  It would be helpful to reference the often
> overlooked provision in the ICANN Articles of Incorporation,
> https://www.icann.org/resources/pages/governance/articles-en  which state
> in relevant part that:
>
>
>
> 4. The Corporation shall operate for the benefit of the Internet community
> as a whole, carrying out its activities in conformity with relevant
> principles of international law and applicable international conventions
> and local law and, to the extent appropriate and consistent with these
> Articles and its Bylaws, through open and transparent processes that enable
> competition and open entry in Internet-related markets. To this effect, the
> Corporation shall cooperate as appropriate with relevant international
> organizations.
>
>
>
> This provision in the bylaws was in fact one of the issues that was
> briefed and discussed by the parties in the original IRP involving ICANN
> and ICM registry.
>
>
>
> Best regards,
>
>
>
> Michael Palage
>
>
>
> *From:* governance-request at lists.igcaucus.org [mailto:
> governance-request at lists.igcaucus.org] *On Behalf Of *Matthias C.
> Kettemann
> *Sent:* Tuesday, June 9, 2015 10:10 AM
> *To:* governance at lists.igcaucus.org; Kleinwächter, Wolfgang
> *Cc:* parminder; Michael Froomkin - U.Miami School of Law; Mawaki Chango
> *Subject:* Re: [governance] IANA transition - BR Gov comments on the
> CCWG-Accountability Draft Proposal
>
>
>
> Dear all,
>
> we should really be careful in using legal terminology. "International
> jurisdiction" usually means that in light of an international set of facts
> the courts of a certain country will be most suited to hear the case (see
> e.g. here
> <http://ec.europa.eu/justice/glossary/international-jurisdiction_en.htm>).
> Conflicts of jurisdiciton (and conflicts of law) are a daily occurence in
> online settings. International courts, however, are a different matter
> entirely. They are few and far between and, in their present design, are
> not in a position to ensure accountability. For that we need more permanent
> oversight structures. I'm not convinced that only a national legal anchor
> can do the trick. International law, however, does not yet provide for
> accountability structures for the 'management' and administration of the
> stability, security etc. of the global Internet.
>
> Kind regards
>
>
> Matthias
>
>
>
> On Tue, Jun 9, 2015 at 3:49 PM, "Kleinwächter, Wolfgang" <
> wolfgang.kleinwaechter at medienkomm.uni-halle.de> wrote:
>
> Hi Parminder,
>
> can you specify what do you understand under "international jurisdiction"?
> Do you want to create an "International (Internet) Court"? Do you want to
> have ICANN under the International Court of Justice in The Hague?
> International Courts are created by intergovernmental treaties. Here is a
> list of "International Courts":
> http://en.wikipedia.org/wiki/International_court.
>
> Wolfgang
>
>
>
>
>
>
> -----Ursprüngliche Nachricht-----
> Von: governance-request at lists.igcaucus.org im Auftrag von parminder
> Gesendet: Di 09.06.2015 15:41
> An: governance at lists.igcaucus.org; Michael Froomkin - U.Miami School of
> Law; Mawaki Chango
> Betreff: Re: [governance] IANA transition - BR Gov comments on the
> CCWG-Accountability Draft Proposal
>
>
>
>
> On Tuesday 09 June 2015 06:26 PM, Michael Froomkin - U.Miami School of
> Law wrote:
> >
> > I think that bodies which do not need to fear supervision by
> > legitimate courts end up like FIFA. FIFA had a legal status in
> > Switzerland that basically insulated it the way that the Brazilian
> > document seems to suggest would be what they want for ICANN.  (It's
> > also the legal status ICANN has at times suggested it would like.)
> >
> > The lesson of history seems unusually clear here.
>
> Agree that ICANN cannot be left jurisdictionally un-supervised - that
> may be even more dangerous than the present situation. However, the
> right supervision or oversight is of international jurisdiction and law,
> not that of the US . This is what Brazil has to make upfront as the
> implication of what it is really seeking, and its shyness and reticence
> to say so is what I noted as surprising in an earlier email in this
> thread. Not putting out clearly what exactly it wants would lead to
> misconceptions about its position, which IMHO can be seen from how
> Michael reads it.  I am sure this is not how Brazil meant it - to free
> ICANN from all kinds of jurisdictional oversight whatsoever - but then
> Brazil needs to say clearly what is it that it wants, and how can it can
> obtained. Brazil, please come out of your NetMundial hangover and take
> political responsibility for what you say and seek!
>
> parminder
>
>
> >
> > On Tue, 9 Jun 2015, Mawaki Chango wrote:
> >
> >>
> >> It's good to see a law scholar involved in this discussion. I'll
> >> leave it to the Brazilian party to
> >> ultimate tell whether your reading is correct or not. In the meantime
> >> I'd volunteer the following
> >> comments.
> >>
> >> On Jun 8, 2015 10:46 PM, "Michael Froomkin - U.Miami School of Law"
> >> <froomkin at law.miami.edu> wrote:
> >> >
> >> > Perhaps I'm misreading something, but I read this document to make
> >> the following assertions:
> >> >
> >> > 1. All restrictions on ICANN's location must be removed.
> >> >
> >>
> >> And the question reopened for deliberation by all stakeholders,
> >> including governments among others.
> >> Only the outcome of such deliberation will be fully legitimate within
> >> the framework of the post-2015
> >> ICANN.
> >>
> >> > 2. ICANN does not have to leave the US but must be located in a
> >> place where the governing law has
> >> certain characteristics, including not having the possibiliity that
> >> courts overrule ICANN (or at
> >> least the IRP).
> >> >
> >> > (And, as it happens, the US is not such a place....)
> >> >
> >>
> >> Not only avoiding courts overruling relevant outcomes of the Internet
> >> global community processes,
> >> but also examining and resolving the possible interferences/conflicts
> >> that might arise for
> >> government representatives being subject to a foreign country law
> >> simply in the process of attending
> >> to their regular duties (if they were to be fully engaged with ICANN).
> >>
> >> Quote:
> >> "From the Brazilian perspective the existing structure clearly imposes
> limits to the participation
> >>
> > ??
> > ?of governmental representatives, as it is unlikely that a
> representative of a foreign government wi
> >> ll be authorized (by its own government) to formally accept a position
> in a body pertaining to a U.
> >>
> >> S. corporation."
> >>
> >> This may be what you're getting at with your point 3 below, but I'm
> >> not sure whether the problem is
> >> only the fact that governments have to deal with a corporate form/law
> >> or whether it is altogether
> >> the fact that it is a single country law without any form of
> >> deliberate endorsement by the other
> >> governments (who also have law making power in their respective
> >> country just as the US government).
> >>
> >> Assuming your reading is correct, and if necessary complemented by my
> >> remarks above, I'd be
> >> interested in hearing from you about any issues you may see with the
> >> BR gov comments.
> >> Thanks,
> >>
> >> Mawaki
> >>
> >> >
> >> > 3. ICANN doesn't have to change its form, but it needs a form where
> >> governments are comfortable.
> >> >
> >> > (And, as it happens, the corporate form is not such a form....)
> >> >
> >> >
> >> > What am I missing?
> >> >
> >> >
> >> >
> >> > On Sat, 6 Jun 2015, Carlos A. Afonso wrote:
> >> >
> >> >> For the ones who are following the IANA transition process: attached
> >> >> please find the comments posted by the government of Brazil on
> >> June 03,
> >> >> 2015, in response to the call for public comments on the
> >> >> CCWG-Accountability Initial Draft Proposal.
> >> >>
> >> >> I generally agree with the comments.
> >> >>
> >> >> fraternal regards
> >> >>
> >> >> --c.a.
> >> >>
> >> >
> >> > --
> >> > A. Michael Froomkin, http://law.tm
> >> > Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
> >> > Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
> >> > Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
> >> > U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> >> >                         -->It's warm here.<--
> >> > ____________________________________________________________
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> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >> > ____________________________________________________________
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> Dr. Matthias C. Kettemann, LL.M. (Harvard)
> Post-Doc Fellow | Cluster of Excellence „
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> <http://www.normativeorders.net/de/organisation/mitarbeiter-a-z/person/442>,
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From kichango at gmail.com  Tue Jun  9 11:39:10 2015
From: kichango at gmail.com (Mawaki Chango)
Date: Tue, 9 Jun 2015 15:39:10 +0000
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <CACTo+v9WBfajsUdeQZ7nUS5frj7Q9bN5UJSamUwZPHFKxiJfvA@mail.gmail.com>
References: <557378D2.6030503@cafonso.ca>
	<alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu>
	<CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com>
	<alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu>
	<5576ED01.9010606@itforchange.net>
	<2DA93620FC07494C926D60C8E3C2F1A801642F6D@server1.medienkomm.uni-halle.de>
	<CALjW9_=P77YShy9FqdveqPTOWsHpPUnu8E9a7FUuHVZ8xRCeeQ@mail.gmail.com>
	<03b601d0a2bf$eb5abcf0$c21036d0$@palage.com>
	<CACTo+v9WBfajsUdeQZ7nUS5frj7Q9bN5UJSamUwZPHFKxiJfvA@mail.gmail.com>
Message-ID: <CACTo+v_b06cPFrwqXgFyVF-e7b+ZMEN=GRujVBa-09PTaE9brA@mail.gmail.com>

Of course what I was getting at in my previous email here, which is what it
is but I forgot to mention the word, is a _delegation_ protocol/framework.

mC.

On Jun 9, 2015 3:30 PM, "Mawaki Chango" <kichango at gmail.com> wrote:
>
> Just a question here...
>
> Between one de facto national/country law such as US' and the FIFA
scenario (or a country where the courts might be too deferential to
international bodies), is there possibly room for some institutional
creativity?
>
> From what BR gov is saying, simply replacing one country law with another
would not do the trick. If the community deliberation (involving also
governments) based on the systematic assessment of the jurisdiction
candidates short listed shows preference for US or Canada jurisdiction,
would it be possible at all then to put in place a protocol which any
governments may (and will be encouraged to) sign as a way of recognition of
the selected country law to govern ICANN matters?
>
> That way, governments will still have a formal framework for their
official reps engaging in ICANN's activities (abiding by its valid
decisions or challenging them only in the recognized courts) without the
need for an international treaty?
>
> Note that once the "legal status" question and the selection of law and
jurisdiction has been properly settled through a community due process, the
law and jurisdiction chosen will apply anyway. The protocol idea is for
governments who are willing to engage fully with ICANN and even assume
responsibility within the organization to have a formal ground and
framework to do so with regard to the governing law.
>
> Make sense?
>
> /Brought to you by Mawaki's droid agent
>
>
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From froomkin at law.miami.edu  Tue Jun  9 11:39:22 2015
From: froomkin at law.miami.edu (Michael Froomkin - U.Miami School of Law)
Date: Tue, 9 Jun 2015 11:39:22 -0400
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <55770298.20609@itforchange.net>
References: <557378D2.6030503@cafonso.ca> <alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu> <CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com> <alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu> <5576ED01.9010606@itforchange.net>
 <alpine.LRH.2.00.1506090955160.12194@post.law.miami.edu> <55770298.20609@itforchange.net>
Message-ID: <alpine.LRH.2.00.1506091131280.12194@post.law.miami.edu>

On Tue, 9 Jun 2015, parminder wrote:

> Are you saying that it is not possible for ICANN to undertake the functions that it needs to
> undertake while being an international institution incorporated under international law, and free
> from any countries jurisdiction in terms of its basic governance functions? I just want to be clear.

I don't know what an "an international institution incorporated under 
international law" is except bodies like FIFA (under Swiss law), or UN 
bodies, or sui generis treaty bodies.  It is certainly *possible* for 
ICANN to have any of those statuses and to "function"; as far as I can 
tell, however, it's just not possible to build in meaningful 
accountability in those structures.

There is no general international law of incorporation of which I am 
aware.  Corporate (formation) law is all national law.  That is the 
reality that must be confronted.  There is no place I can go to get an 
international corporate charter, and good thing too - why should I be able 
to exempt myself from national law?

> 
> If so, that would be an interesting assertion. Now, I am sure this is not true. However, I am not an
> international legal expert and not able to right now build and present the whole scenario for you on
> how it can be done. I am sure there are a number of international organisations that do different
> kind of complex activities and have found ways to do it under international law and jurisdiction.

But those are in the main treaty bodies.

> And if some new directions and evolutions are needed that can also be worked out (please see my last
> email on this count).
>

Here we just disagree. I see the task as monsterously hard, the work of 
a decade or more.

> BTW it is a sad statement on the geo political economy of knowledge production in this area that
> there is not one full fledged scenario developed by anyone on how ICANN can undertakes its
> activities under international law/ jurisdiction - which I am pretty sure it can. Many parties,
> including governments have called for it, and yes I agree someone should come up with a full
> politico-legal and institutional description of how it can and should be done - with all the details
> in place. And that is the sad part of it, of how things stand at the global level, had now lopsided
> is resource distribution, all kinds of resources.
>

Alas.

> Not to shy away from responsibility - I am happy to collaborate with anyone if someone can out time
> into it.
> 
> And no, it cannot be solved by any other country jurisdiction. Apart from it being still being wrong
> in principle, how would US accept that another jurisdiction is better than its own and accede to
> such a change. Accepting the patently justified fact that an international infrastructure should be
> governed internationally, on the other hand, is much easier .
>

I would not dismiss this so quickly.  I take a substantial fraction of the 
opposition to US residual control (for that is all we are talking about) 
to be tied to the US's status as defacto hegemon.  Moving ICANN to another 
state with a strong human rights record would answer that part of the 
critique.

In my view, a bespoke international structure is actually much harder -- 
it would need to be invented almost from scratch.  And it is bound to be 
flawed; national rules are the result of at least decades if not more of 
trial and error.

> parminder
> 
> On Tuesday 09 June 2015 07:31 PM, Michael Froomkin - U.Miami School of Law wrote:
>       I don't know what it means to say that ICANN should be subject to "international
>       jurisdiction and law".  For the relevant issues, that sounds like a pretty empty set.
>
>       As regards most of the sort of things one might expect to worry about - e.g. fidelity to
>       articles of incorporation - international law is basically silent.  And there is no
>       relevant jurisdiction either.  So I remain stuck in the position that there must be a
>       state anchor whose courts are given the job.  It does not of course need to be the US,
>       although I would note that the US courts are by international standards not shy and
>       actually fairly good at this sort of thing.
>
>       I do think, however, that it should NOT be Switzerland, as its courts are historically
>       over-deferential to international bodies - perhaps as part of state policy to be an
>       attractive location for those high-spending international meetings.
>
>       I'd be real happy with Canada, though.
>
>       On Tue, 9 Jun 2015, parminder wrote:
> 
> 
>
>             On Tuesday 09 June 2015 06:26 PM, Michael Froomkin - U.Miami School of Law
>             wrote:
>
>                   I think that bodies which do not need to fear supervision by
>             legitimate courts end up
>                   like FIFA. FIFA had a legal status in Switzerland that basically
>             insulated it the way
>                   that the Brazilian document seems to suggest would be what they want
>             for ICANN.  (It's
>                   also the legal status ICANN has at times suggested it would like.)
>
>                   The lesson of history seems unusually clear here.
> 
>
>             Agree that ICANN cannot be left jurisdictionally un-supervised - that may be
>             even more dangerous
>             than the present situation. However, the right supervision or oversight is
>             of international
>             jurisdiction and law, not that of the US . This is what Brazil has to make
>             upfront as the
>             implication of what it is really seeking, and its shyness and reticence to
>             say so is what I noted as
>             surprising in an earlier email in this thread. Not putting out clearly what
>             exactly it wants would
>             lead to misconceptions about its position, which IMHO can be seen from how
>             Michael reads it.  I am
>             sure this is not how Brazil meant it - to free ICANN from all kinds of
>             jurisdictional oversight
>             whatsoever - but then Brazil needs to say clearly what is it that it wants,
>             and how can it can
>             obtained. Brazil, please come out of your NetMundial hangover and take
>             political responsibility for
>             what you say and seek!
>
>             parminder
> 
> 
>
>                   On Tue, 9 Jun 2015, Mawaki Chango wrote:
> 
>
>                         It's good to see a law scholar involved in this discussion. I'll
>             leave it to
>                         the Brazilian party to
>                         ultimate tell whether your reading is correct or not. In the
>             meantime I'd
>                         volunteer the following
>                         comments.
>
>                         On Jun 8, 2015 10:46 PM, "Michael Froomkin - U.Miami School of
>             Law"
>                         <froomkin at law.miami.edu> wrote:
>                         >
>                         > Perhaps I'm misreading something, but I read this document to
>             make the
>                         following assertions:
>                         >
>                         > 1. All restrictions on ICANN's location must be removed.
>                         >
>
>                         And the question reopened for deliberation by all stakeholders,
>             including
>                         governments among others.
>                         Only the outcome of such deliberation will be fully legitimate
>             within the
>                         framework of the post-2015
>                         ICANN.
>
>                         > 2. ICANN does not have to leave the US but must be located in
>             a place
>                         where the governing law has
>                         certain characteristics, including not having the possibiliity
>             that courts
>                         overrule ICANN (or at
>                         least the IRP).
>                         >
>                         > (And, as it happens, the US is not such a place....)
>                         >
>
>                         Not only avoiding courts overruling relevant outcomes of the
>             Internet global
>                         community processes,
>                         but also examining and resolving the possible
>             interferences/conflicts that
>                         might arise for
>                         government representatives being subject to a foreign country
>             law simply in
>                         the process of attending
>                         to their regular duties (if they were to be fully engaged with
>             ICANN).
>
>                         Quote:
>                        
>             "From the Brazilian perspective the existing structure clearly imposes limits to the participation
>
>                  ???of governmental representatives, as it is unlikely that a representative of a foreign government
>              w
>                   i
> ll be authorized (by its own government) to formally accept a position in a body pertaining to a U.
> 
>
>                         S. corporation."
>
>                         This may be what you're getting at with your point 3 below, but
>             I'm not sure
>                         whether the problem is
>                         only the fact that governments have to deal with a corporate
>             form/law or
>                         whether it is altogether
>                         the fact that it is a single country law without any form of
>             deliberate
>                         endorsement by the other
>                         governments (who also have law making power in their respective
>             country just
>                         as the US government).
>
>                         Assuming your reading is correct, and if necessary complemented
>             by my
>                         remarks above, I'd be
>                         interested in hearing from you about any issues you may see with
>             the BR gov
>                         comments.
>                         Thanks,
>
>                         Mawaki
>
>                         >
>                         > 3. ICANN doesn't have to change its form, but it needs a form
>             where
>                         governments are comfortable.
>                         >
>                         > (And, as it happens, the corporate form is not such a
>             form....)
>                         >
>                         >
>                         > What am I missing?
>                         >
>                         >
>                         >
>                         > On Sat, 6 Jun 2015, Carlos A. Afonso wrote:
>                         >
>                         >> For the ones who are following the IANA transition process:
>             attached
>                         >> please find the comments posted by the government of Brazil
>             on June 03,
>                         >> 2015, in response to the call for public comments on the
>                         >> CCWG-Accountability Initial Draft Proposal.
>                         >>
>                         >> I generally agree with the comments.
>                         >>
>                         >> fraternal regards
>                         >>
>                         >> --c.a.
>                         >>
>                         >
>                         > --
>                         > A. Michael Froomkin, http://law.tm
>                         > Laurie Silvers & Mitchell Rubenstein Distinguished Professor
>             of Law
>                         > Editor, Jotwell: The Journal of Things We Like (Lots), 
>             jotwell.com
>                         > Program Chair, We Robot 2016 | +1 (305) 284-4285 | 
>             froomkin at law.tm
>                         > U. Miami School of Law, P.O. Box 248087, Coral Gables, FL
>             33124 USA
>                         >                         -->It's warm here.<--
>                         > ____________________________________________________________
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>                                                                                        
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From wolfgang.kleinwaechter at medienkomm.uni-halle.de  Tue Jun  9 12:13:06 2015
From: wolfgang.kleinwaechter at medienkomm.uni-halle.de (=?iso-8859-1?Q?=22Kleinw=E4chter=2C_Wolfgang=22?=)
Date: Tue, 09 Jun 2015 18:13:06 +0200
Subject: AW: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
References: <557378D2.6030503@cafonso.ca>
 <alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu>
 <CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com>
 <alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu>
 <5576ED01.9010606@itforchange.net>
 <2DA93620FC07494C926D60C8E3C2F1A801642F6D@server1.medienkomm.uni-halle.de>
 <CALjW9_=P77YShy9FqdveqPTOWsHpPUnu8E9a7FUuHVZ8xRCeeQ@mail.gmail.com>
 <5576FCC5.7030309@itforchange.net>
 <CAGF_KH8JKx1NrPU40zqXJBbZLjUVFsO=1ZFucL=EE_0PxDW2LA@mail.gmail.com>
Message-ID:  <2DA93620FC07494C926D60C8E3C2F1A801642F70@server1.medienkomm.uni-halle.de>

BTW, my reading of the Brazilian paper goes into Bertrand´s Option 3, inspired by NetMundial. 

In my eyes this is an interesting stumbling Forward step for the "Governance on the Internet". I have my doubts whether this will work for the "Governance of the (decentralized) Internet".

w
  



-----Ursprüngliche Nachricht-----
Von: Bertrand de La Chapelle [mailto:bdelachapelle at gmail.com]
Gesendet: Di 09.06.2015 17:21
An: governance at lists.igcaucus.org; parminder
Cc: Matthias C. Kettemann; Kleinwächter, Wolfgang; Michael Froomkin - U.Miami School of Law; Mawaki Chango
Betreff: Re: [governance] IANA transition - BR Gov comments on the CCWG-Accountability Draft Proposal
 
Parminder,

The link does not seem to work in your paragraph below. Can you :

*That is one definition of the term, looking at it from a domestic point of
view. Here <http://international%20jurisdiction/> is another way to look at
it, coming from a global point of view - and of course this current
discussion comes from a global point of view. *


As for setting ICANN "under international law", unless I am mistaken (and I
may very well overlook other ways), I see basically three ways:

   1. the traditional one for the creation of international organizations,
   ie: an intergovernmental treaty
   2. providing ICANN in whatever jurisdiction it may be incorporated (US
   or other), with privileges and immunities that would make its decisions non
   susceptible of recourse in front of the local courts
   3. invent a new type of international organization, founded by a
   diversity of stakeholders (and not only governments), with appropriate
   independence and guarantees


Are you advocating in favor of option 1)?

Would you be amenable to option 2), if there are sufficient accountability
mechanisms (including the enhanced IRP proposed by the CCWG)?

Do you have suggestions regarding option 3)? We would all be happy to
identify a new approach.

Best

Bertrand




"*Le plus beau métier des hommes, c'est d'unir les hommes*", Antoine de
Saint Exupéry
("*There is no greater mission for humans than uniting humans*")BERTRAND DE
LA CHAPELLEInternet & Jurisdiction Project | Directoremail
bdelachapelle at internetjurisdiction.netemail bdelachapelle at gmail.comtwitter
@IJurisdiction <https://twitter.com/IJurisdiction> | @bdelachapelle
<https://twitter.com/bdelachapelle>mobile +33 (0)6 11 88 33 32
www.internetjurisdiction.net[image: A GLOBAL MULTI-STAKEHOLDER DIALOGUE
PROCESS]

On Tue, Jun 9, 2015 at 4:48 PM, parminder <parminder at itforchange.net> wrote:

>
>
> On Tuesday 09 June 2015 07:39 PM, Matthias C. Kettemann wrote:
>
> Dear all,
>
> we should really be careful in using legal terminology. "International
> jurisdiction" usually means that in light of an international set of facts
> the courts of a certain country will be most suited to hear the case (see
> e.g. here
> <http://ec.europa.eu/justice/glossary/international-jurisdiction_en.htm>)..
>
>
> That is one definition of the term, looking at it from a domestic point of
> view. Here <http://International%20jurisdiction> is another way to look
> at it, coming from a global point of view - and of course this current
> discussion comes from a global point of view.
>
>   Conflicts of jurisdiciton (and conflicts of law) are a daily occurence
> in online settings. International courts, however, are a different matter
> entirely. They are few and far between and, in their present design, are
> not in a position to ensure accountability. For that we need more permanent
> oversight structures. I'm not convinced that only a national legal anchor
> can do the trick.
>
>
> That is the point. So then what international option do we have? If we are
> to live a common digital future, with an adequately global Internet, we
> have to find the necessary legal and political ways to do it, even if they
> do not exist today. I am much more convinced than others here that there is
> enough existing that can be evolved in the right direction - but to do that
> the political will has to first be stated and worked with.
>
> If international law and jurisdiction can be begun to be evolved in such a
> complex and contested area like international crime, it should certainly be
> so much easier to do with regard to management of basic techno-logical
> infrastructure of the Internet, where there is, at least at present, so
> less to dispute, and the positive advantage so huge.
>
> Please note this sentence from the submission of Roberto Bissio, a top
> global civil society leader, made to the CCWG process - he is an official
> adviser to the process. (This submission was earlier forwarded by Carlos to
> these elists, but I am enclosing it again.)
>
> "The International Criminal Court was negotiated and ratified in as much
> time as the discussion of the governance of ICANN is already taking."
>
> Does this say something?
>
> And do we not know what kind of international innovations are daily
> invented, like in the area of IP enforcement, and trade dispute settlement,
> and now also 'investor protection' for global corporates from domestic
> policies/ law and even courts, when it is in the interest of the most
> powerful countries. Why do we then shy away from institutional innovations
> when genuine public interest is involved. It is a case of greater
> internationalisation where it suits them, and full scepticism about
> international law and jurisdiction where is does not. That is not ok.
>
> parminder
>
>
>
>  International law, however, does not yet provide for accountability
> structures for the 'management' and administration of the stability,
> security etc. of the global Internet.
>
>  Kind regards
>
> Matthias
>
>
> On Tue, Jun 9, 2015 at 3:49 PM, "Kleinwächter, Wolfgang" <
> wolfgang.kleinwaechter at medienkomm.uni-halle.de> wrote:
>
>> Hi Parminder,
>>
>> can you specify what do you understand under "international
>> jurisdiction"? Do you want to create an "International (Internet) Court"?
>> Do you want to have ICANN under the International Court of Justice in The
>> Hague? International Courts are created by intergovernmental treaties. Here
>> is a list of "International Courts":
>> http://en.wikipedia.org/wiki/International_court.
>>
>> Wolfgang
>>
>>
>>
>>
>>
>>
>> -----Ursprüngliche Nachricht-----
>> Von: governance-request at lists.igcaucus.org im Auftrag von parminder
>> Gesendet: Di 09.06.2015 15 <09.06.2015%2015>:41
>> An: governance at lists.igcaucus.org; Michael Froomkin - U.Miami School of
>> Law; Mawaki Chango
>> Betreff: Re: [governance] IANA transition - BR Gov comments on the
>> CCWG-Accountability Draft Proposal
>>
>>
>>
>> On Tuesday 09 June 2015 06:26 PM, Michael Froomkin - U.Miami School of
>> Law wrote:
>> >
>> > I think that bodies which do not need to fear supervision by
>> > legitimate courts end up like FIFA. FIFA had a legal status in
>> > Switzerland that basically insulated it the way that the Brazilian
>> > document seems to suggest would be what they want for ICANN.  (It's
>> > also the legal status ICANN has at times suggested it would like.)
>> >
>> > The lesson of history seems unusually clear here.
>>
>> Agree that ICANN cannot be left jurisdictionally un-supervised - that
>> may be even more dangerous than the present situation. However, the
>> right supervision or oversight is of international jurisdiction and law,
>> not that of the US . This is what Brazil has to make upfront as the
>> implication of what it is really seeking, and its shyness and reticence
>> to say so is what I noted as surprising in an earlier email in this
>> thread. Not putting out clearly what exactly it wants would lead to
>> misconceptions about its position, which IMHO can be seen from how
>> Michael reads it.  I am sure this is not how Brazil meant it - to free
>> ICANN from all kinds of jurisdictional oversight whatsoever - but then
>> Brazil needs to say clearly what is it that it wants, and how can it can
>> obtained. Brazil, please come out of your NetMundial hangover and take
>> political responsibility for what you say and seek!
>>
>> parminder
>>
>>
>> >
>> > On Tue, 9 Jun 2015, Mawaki Chango wrote:
>> >
>> >>
>> >> It's good to see a law scholar involved in this discussion. I'll
>> >> leave it to the Brazilian party to
>> >> ultimate tell whether your reading is correct or not. In the meantime
>> >> I'd volunteer the following
>> >> comments.
>> >>
>> >> On Jun 8, 2015 10:46 PM, "Michael Froomkin - U.Miami School of Law"
>> >> <froomkin at law.miami.edu> wrote:
>> >> >
>> >> > Perhaps I'm misreading something, but I read this document to make
>> >> the following assertions:
>> >> >
>> >> > 1. All restrictions on ICANN's location must be removed.
>> >> >
>> >>
>> >> And the question reopened for deliberation by all stakeholders,
>> >> including governments among others.
>> >> Only the outcome of such deliberation will be fully legitimate within
>> >> the framework of the post-2015
>> >> ICANN.
>> >>
>> >> > 2. ICANN does not have to leave the US but must be located in a
>> >> place where the governing law has
>> >> certain characteristics, including not having the possibiliity that
>> >> courts overrule ICANN (or at
>> >> least the IRP).
>> >> >
>> >> > (And, as it happens, the US is not such a place....)
>> >> >
>> >>
>> >> Not only avoiding courts overruling relevant outcomes of the Internet
>> >> global community processes,
>> >> but also examining and resolving the possible interferences/conflicts
>> >> that might arise for
>> >> government representatives being subject to a foreign country law
>> >> simply in the process of attending
>> >> to their regular duties (if they were to be fully engaged with ICANN)..
>> >>
>> >> Quote:
>> >> "From the Brazilian perspective the existing structure clearly imposes
>> limits to the participation
>> >>
>> > ??
>> > ?of governmental representatives, as it is unlikely that a
>> representative of a foreign government wi
>> >> ll be authorized (by its own government) to formally accept a position
>> in a body pertaining to a U.
>> >>
>> >> S. corporation."
>> >>
>> >> This may be what you're getting at with your point 3 below, but I'm
>> >> not sure whether the problem is
>> >> only the fact that governments have to deal with a corporate form/law
>> >> or whether it is altogether
>> >> the fact that it is a single country law without any form of
>> >> deliberate endorsement by the other
>> >> governments (who also have law making power in their respective
>> >> country just as the US government).
>> >>
>> >> Assuming your reading is correct, and if necessary complemented by my
>> >> remarks above, I'd be
>> >> interested in hearing from you about any issues you may see with the
>> >> BR gov comments.
>> >> Thanks,
>> >>
>> >> Mawaki
>> >>
>> >> >
>> >> > 3. ICANN doesn't have to change its form, but it needs a form where
>> >> governments are comfortable.
>> >> >
>> >> > (And, as it happens, the corporate form is not such a form....)
>> >> >
>> >> >
>> >> > What am I missing?
>> >> >
>> >> >
>> >> >
>> >> > On Sat, 6 Jun 2015, Carlos A. Afonso wrote:
>> >> >
>> >> >> For the ones who are following the IANA transition process: attached
>> >> >> please find the comments posted by the government of Brazil on
>> >> June 03,
>> >> >> 2015, in response to the call for public comments on the
>> >> >> CCWG-Accountability Initial Draft Proposal.
>> >> >>
>> >> >> I generally agree with the comments.
>> >> >>
>> >> >> fraternal regards
>> >> >>
>> >> >> --c.a.
>> >> >>
>> >> >
>> >> > --
>> >> > A. Michael Froomkin, http://law.tm
>> >> > Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
>> >> > Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
>> >> > Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
>> >> > U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
>> >> >                         -->It's warm here.<--
>> >> > ____________________________________________________________
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>> >> >
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >>
>> >> > ____________________________________________________________
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>
> --
>
> Dr. Matthias C. Kettemann, LL.M. (Harvard)
> Post-Doc Fellow | Cluster of Excellence "
> <http://www.normativeorders.net/de/organisation/mitarbeiter-a-z/person/442>Normative
> Orders
> <http://www.normativeorders.net/de/organisation/mitarbeiter-a-z/person/442>
> "
> <http://www.normativeorders.net/de/organisation/mitarbeiter-a-z/person/442>,
> University of Frankfurt am Main
> Lecturer | Institute of International Law andInternational Relations
> <http://voelkerrecht.uni-graz.at/en/>, University of Graz
>
> <http://trainingszentrum-menschenrechte.uni-graz.at/en/infos-fuer-studierende/>
>
> Goethe-Universität Frankfurt am Main
> Exzellenzcluster "Normative Ordnungen"
> Max-Horkheimer-Straße 2
> 60629 Frankfurt am Main / Germany
>
> E | matthias.kettemann at gmail.com
> Blog <http://internationallawandtheinternet.blogspot.com/> | SSRN
> <http://ssrn.com/author=1957909> | Google Scholar
> <http://scholar.google.ch/citations?user=8jRGt2QAAAAJ> | Twitter
> <http://twitter.com/#%21/MCKettemann> | Facebook
> <http://www.facebook.com/matthias.kettemann> | Google+
> <https://plus.google.com/u/0/116310540881122884114/posts>
>
> Recent publications:
> The Common Interest in International Law (2014, co-editor)
> <http://www.intersentia.co.uk/searchDetail.aspx?bookId=103066&authors=Wolfgang>
> European Yearbook on Human Rights 2014 (2014, co-editor)
> <http://www.nwv.at/recht/verfassungsrecht/1077_european_yearbook_on_human_rights_2014/>
> Freedom of Expression and the Internet (2014, co-author)
> <https://book.coe.int/eur/en/human-rights-and-democracy/5810-freedom-of-expression-and-the-internet.html>
>
>
>
>
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From seth.p.johnson at gmail.com  Tue Jun  9 12:31:22 2015
From: seth.p.johnson at gmail.com (Seth Johnson)
Date: Tue, 9 Jun 2015 12:31:22 -0400
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <2DA93620FC07494C926D60C8E3C2F1A801642F6D@server1.medienkomm.uni-halle.de>
References: <557378D2.6030503@cafonso.ca> <alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu>
 <CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com>
 <alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu> <5576ED01.9010606@itforchange.net>
 <2DA93620FC07494C926D60C8E3C2F1A801642F6D@server1.medienkomm.uni-halle.de>
Message-ID: <CAJkfFBwi+wwkyvwuPbKPSqMiH=FJ+1380AiAE5QqAM-0vxwUfg@mail.gmail.com>

I think the right discussion finally arises when we stop saying it's
either international or the US.

The international arena doesn't work the way some might hope.  That
doesn't mean the US is the alternative.  It means understand what it
is that the international arena doesn't do, that we need.  And
recognizing that addressing those defects isn't necessarily about
international processes.  This is a discussion that needs to start and
recognize that it needs its own time (not even the UN understands
this).  Hopefully we can start the practical discussion only once we
see the problem defined -- and this is something that the current
circle of diplomats probably won't contribute so much as we the
peoples of the world, approaching a problem that requires a whole new
approach.


Seth

On Tue, Jun 9, 2015 at 9:49 AM, "Kleinwächter, Wolfgang"
<wolfgang.kleinwaechter at medienkomm.uni-halle.de> wrote:
> Hi Parminder,
>
> can you specify what do you understand under "international jurisdiction"? Do you want to create an "International (Internet) Court"? Do you want to have ICANN under the International Court of Justice in The Hague? International Courts are created by intergovernmental treaties. Here is a list of "International Courts":
> http://en.wikipedia.org/wiki/International_court.
>
> Wolfgang
>
>
>
>
>
>
> -----Ursprüngliche Nachricht-----
> Von: governance-request at lists.igcaucus.org im Auftrag von parminder
> Gesendet: Di 09.06.2015 15:41
> An: governance at lists.igcaucus.org; Michael Froomkin - U.Miami School of Law; Mawaki Chango
> Betreff: Re: [governance] IANA transition - BR Gov comments on the CCWG-Accountability Draft Proposal
>
>
>
> On Tuesday 09 June 2015 06:26 PM, Michael Froomkin - U.Miami School of
> Law wrote:
>>
>> I think that bodies which do not need to fear supervision by
>> legitimate courts end up like FIFA. FIFA had a legal status in
>> Switzerland that basically insulated it the way that the Brazilian
>> document seems to suggest would be what they want for ICANN.  (It's
>> also the legal status ICANN has at times suggested it would like.)
>>
>> The lesson of history seems unusually clear here.
>
> Agree that ICANN cannot be left jurisdictionally un-supervised - that
> may be even more dangerous than the present situation. However, the
> right supervision or oversight is of international jurisdiction and law,
> not that of the US . This is what Brazil has to make upfront as the
> implication of what it is really seeking, and its shyness and reticence
> to say so is what I noted as surprising in an earlier email in this
> thread. Not putting out clearly what exactly it wants would lead to
> misconceptions about its position, which IMHO can be seen from how
> Michael reads it.  I am sure this is not how Brazil meant it - to free
> ICANN from all kinds of jurisdictional oversight whatsoever - but then
> Brazil needs to say clearly what is it that it wants, and how can it can
> obtained. Brazil, please come out of your NetMundial hangover and take
> political responsibility for what you say and seek!
>
> parminder
>
>
>>
>> On Tue, 9 Jun 2015, Mawaki Chango wrote:
>>
>>>
>>> It's good to see a law scholar involved in this discussion. I'll
>>> leave it to the Brazilian party to
>>> ultimate tell whether your reading is correct or not. In the meantime
>>> I'd volunteer the following
>>> comments.
>>>
>>> On Jun 8, 2015 10:46 PM, "Michael Froomkin - U.Miami School of Law"
>>> <froomkin at law.miami.edu> wrote:
>>> >
>>> > Perhaps I'm misreading something, but I read this document to make
>>> the following assertions:
>>> >
>>> > 1. All restrictions on ICANN's location must be removed.
>>> >
>>>
>>> And the question reopened for deliberation by all stakeholders,
>>> including governments among others.
>>> Only the outcome of such deliberation will be fully legitimate within
>>> the framework of the post-2015
>>> ICANN.
>>>
>>> > 2. ICANN does not have to leave the US but must be located in a
>>> place where the governing law has
>>> certain characteristics, including not having the possibiliity that
>>> courts overrule ICANN (or at
>>> least the IRP).
>>> >
>>> > (And, as it happens, the US is not such a place....)
>>> >
>>>
>>> Not only avoiding courts overruling relevant outcomes of the Internet
>>> global community processes,
>>> but also examining and resolving the possible interferences/conflicts
>>> that might arise for
>>> government representatives being subject to a foreign country law
>>> simply in the process of attending
>>> to their regular duties (if they were to be fully engaged with ICANN).
>>>
>>> Quote:
>>> "From the Brazilian perspective the existing structure clearly imposes limits to the participation
>>>
>> ??
>> ?of governmental representatives, as it is unlikely that a representative of a foreign government wi
>>> ll be authorized (by its own government) to formally accept a position in a body pertaining to a U.
>>>
>>> S. corporation."
>>>
>>> This may be what you're getting at with your point 3 below, but I'm
>>> not sure whether the problem is
>>> only the fact that governments have to deal with a corporate form/law
>>> or whether it is altogether
>>> the fact that it is a single country law without any form of
>>> deliberate endorsement by the other
>>> governments (who also have law making power in their respective
>>> country just as the US government).
>>>
>>> Assuming your reading is correct, and if necessary complemented by my
>>> remarks above, I'd be
>>> interested in hearing from you about any issues you may see with the
>>> BR gov comments.
>>> Thanks,
>>>
>>> Mawaki
>>>
>>> >
>>> > 3. ICANN doesn't have to change its form, but it needs a form where
>>> governments are comfortable.
>>> >
>>> > (And, as it happens, the corporate form is not such a form....)
>>> >
>>> >
>>> > What am I missing?
>>> >
>>> >
>>> >
>>> > On Sat, 6 Jun 2015, Carlos A. Afonso wrote:
>>> >
>>> >> For the ones who are following the IANA transition process: attached
>>> >> please find the comments posted by the government of Brazil on
>>> June 03,
>>> >> 2015, in response to the call for public comments on the
>>> >> CCWG-Accountability Initial Draft Proposal.
>>> >>
>>> >> I generally agree with the comments.
>>> >>
>>> >> fraternal regards
>>> >>
>>> >> --c.a.
>>> >>
>>> >
>>> > --
>>> > A. Michael Froomkin, http://law.tm
>>> > Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
>>> > Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
>>> > Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
>>> > U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
>>> >                         -->It's warm here.<--
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>>
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From bzs at world.std.com  Tue Jun  9 17:46:28 2015
From: bzs at world.std.com (Barry Shein)
Date: Tue, 9 Jun 2015 17:46:28 -0400
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <alpine.LRH.2.00.1506091131280.12194@post.law.miami.edu>
References: <557378D2.6030503@cafonso.ca>
	<alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu>
	<CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com>
	<alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu>
	<5576ED01.9010606@itforchange.net>
	<alpine.LRH.2.00.1506090955160.12194@post.law.miami.edu>
	<55770298.20609@itforchange.net>
	<alpine.LRH.2.00.1506091131280.12194@post.law.miami.edu>
Message-ID: <21879.24244.871558.774766@world.std.com>


On June 9, 2015 at 11:39 froomkin at law.miami.edu (Michael Froomkin - U.Miami School of Law) wrote: [responding to Parminder]
 > Here we just disagree. I see the task as monsterously hard, the work of 
 > a decade or more.

I certainly agree with this.

 > In my view, a bespoke international structure is actually much harder -- 
 > it would need to be invented almost from scratch.  And it is bound to be 
 > flawed; national rules are the result of at least decades if not more of 
 > trial and error.

Also agree.

There isn't even any broad definition on basic terms such as
"multistakeholder" in any functional sense much beyond picking the
word apart.

I think Bertrand is on the right track with at least trying to
enumerate the possible structures and working from there.

Too much of this discussion seems to want to jump right into the
end-game as if there were only a few details remaining to be agreed.

Yet, as you point out, others are proposing internationalized
structures which don't even exist currently.

Besides accountability I'd like to see some sort of model of the unit
of enfranchisability as a definitional goal.

The United Nations' founding isn't hard to understand in this regard,
as one example. It's right in its name. The unit of enfranchisability
was and is the nation-state. And then they have procedures to
enfranchise or disenfranchise members.

It would be nice to see something analogous for this proposed
structure without the use of the term "stakeholder" because as far as
I can tell every individual on the planet, or at least every internet
user, is a proper stakeholder. I will assume that's what the term
means without further clarification. And any organized subsets
thereof. That doesn't clarify it much.

Perhaps we should start at the end and choose a name? It might be a
useful thought exercise.

It won't be "ICANN" because that's just a reference to "names and
numbers" which is a tiny part of what's at issue.

"Internet Governance" + noun (Organization, etc) is too verbal, that's
what the proposed organization would do in some broad sense.

United Multistakeholders?

Internet Multistakeholders?

Drop the "multi" in each case?

So slippery.

-- 
        -Barry Shein

The World              | bzs at TheWorld.com           | http://www.TheWorld.com
Purveyors to the Trade | Voice: 800-THE-WRLD        | Dial-Up: US, PR, Canada
Software Tool & Die    | Public Access Internet     | SINCE 1989     *oo*

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From wolfgang.kleinwaechter at medienkomm.uni-halle.de  Tue Jun  9 18:14:19 2015
From: wolfgang.kleinwaechter at medienkomm.uni-halle.de (=?iso-8859-1?Q?=22Kleinw=E4chter=2C_Wolfgang=22?=)
Date: Wed, 10 Jun 2015 00:14:19 +0200
Subject: AW: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
References: <557378D2.6030503@cafonso.ca>
 <alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu>
 <CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com>
 <alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu>
 <5576ED01.9010606@itforchange.net>
 <alpine.LRH.2.00.1506090955160.12194@post.law.miami.edu>
 <55770298.20609@itforchange.net>
 <alpine.LRH.2.00.1506091131280.12194@post.law.miami.edu>
 <21879.24244.871558.774766@world.std.com>
Message-ID:  <2DA93620FC07494C926D60C8E3C2F1A801642F75@server1.medienkomm.uni-halle.de>

Barry: 
United Multistakeholders? Internet Multistakeholders? Drop the "multi" in each case? So slippery.

Wolfagng:
In an article in 2002 I used the termonology "United Constituencies" in contrast to "United Nations" 


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From parminder at itforchange.net  Wed Jun 10 05:16:25 2015
From: parminder at itforchange.net (parminder)
Date: Wed, 10 Jun 2015 14:46:25 +0530
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <CAGF_KH8JKx1NrPU40zqXJBbZLjUVFsO=1ZFucL=EE_0PxDW2LA@mail.gmail.com>
References: <557378D2.6030503@cafonso.ca> <alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu> <CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com> <alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu> <5576ED01.9010606@itforchange.net> <2DA93620FC07494C926D60C8E3C2F1A801642F6D@server1.medienkomm.uni-halle.de> <CALjW9_=P77YShy9FqdveqPTOWsHpPUnu8E9a7FUuHVZ8xRCeeQ@mail.gmail.com> <5576FCC5.7030309@itforchange.net> <CAGF_KH8JKx1NrPU40zqXJBbZLjUVFsO=1ZFucL=EE_0PxDW2LA@mail.gmail.com>
Message-ID: <55780069.40404@itforchange.net>



On Tuesday 09 June 2015 08:51 PM, Bertrand de La Chapelle wrote:
> Parminder,
>
> The link does not seem to work in your paragraph below. Can you : 
> /
> /
>
>     /That is one definition of the term, looking at it from a domestic
>     point of view. Here <http://international%20jurisdiction/> is
>     another way to look at it, coming from a global point of view -
>     and of course this current discussion comes from a global point of
>     view. /
>

Sorry, it is
https://www.icrc.org/eng/war-and-law/international-criminal-jurisdiction/overview-international-criminal-jurisdiction.htm 

>
> As for setting ICANN "under international law", unless I am mistaken
> (and I may very well overlook other ways), I see basically three ways:

A good attempt, and we can work on it, but not sure 3 below can be done
without writing the necessary international law for it, which is only
possible through an inter governmental treaty (1 below), like in France
or India or any other country, whatever be the constitution of a body,
it has to be anchored in an existing or new law written by the
parliament. And if, still pursing the national level analogy, a new kind
of governance body has to be developed, with monopoly governance
functions and powers, like ICANN is, whatever be its constitution, most
likely a new national law will be required for it, through the only
route that law can be developed.

It is important to note here that I am making a distinction between the
constitution of any body, its various processes, its accountability
means and so on, and the law needed to anchor it or support it, or evne
bring it into being. This distinction I see being lost in some of the
discussions here. The former can be multistakeholder or whatever, but
there are some given ways in which laws can be developed. Unless of
course there is some proposal here to propose new ways of developing law
(which is what I fight unclear or incongruent in Brazil's comments). I
will like to know what is your and other people's position on this matter.

>  1. the traditional one for the creation of international
>     organizations, ie: an intergovernmental treaty
>
I cannot see how can a global governance body - with monopoly governance
functions of the importance that ICANN deals with, can be formed without
its anchoring in international law, which can only be written through an
intergovernmental treaty. And again, my direct question, is there a
proposal to take some new law making route here which is non
intergovernmental.

Even NTIA's condition (not that I consider my thinking bound by it) was
that they will not accept NTIA role to be replaced by an intergov
organisation solution..... I dont read it to means that whatever
organsation replaced NTIA role may not be formulated by international
law/ treaty which can only be arrived in an intergov way.  In fact, as
we well know, unless we are keen to forget basic political sceince
lessons, only law alone can reign the power of law makers - as so many
laws are written with precise objective to constrain the powers of
governments and their various bodies. In the same way,

So, yes, I think there is no way other than to seek an inter-gov treaty
- which in my view should

(1) Sanctify the present way of constituting and working of ICANN and
its associated bodies (with minimal accountability related improvements
that get agreed to by everyone) . Such a treaty then limits what limit
what (all) governments can and cannot do in the area of global
Internet's basic techno-logical policies and management.

(2) Put an oversight body over ICANN with minimal well defined
functions, that is constituted in trans-national but non governmental
fashion, but consists to representatives from groups that are outside
the typical ICANN community and notionally can be considered as a
loosely representing a broad spectrum of social sectors that use ICANN
services (which of course everyone does). We can take reps from well
defined global constituencies like media association, science
associations, disability groups, women orgs, education professionals,
health professionals, ethnic groups and so on. Almost all these sectors
have global representative bodies which more or less are universally
accepted. Yes, there certainly be some arbitrariness in this, but such
an arrangement serves the basic requirement of (1) trans-national global
representative which is not intergov system,  and (2) separation of
power and 'external accountability' vis a vic ICANN community. The main
function of the oversight body will be ensure compliance of ICANN
decisions with international law and its own bylaws and set of guiding
principles.

(3) Some kind of digital bench of the International court of justice or
some similar solution, to which the decisions of ICANN oversight body or
of ICANN itself can be taken, with due process, and under given
conditions. I dont agree to appeal process that are fashioned on
arbitration because while they serve the purpose of private law -
contractual isssues among various parties, all of which are relatively
empowered, they ill serve the purpose of pulbic law and justice, which
involves general public interest, those of the common person on the
street who can never successfully use IRP like processes, these are
simply not developed for such a purpose.

This proposal has been made by me quite a number of times on these lists
, and therefore there is nothing new in it . The comments of Roberto
Bissio, Adviser to CCWG , also contain some elements that are comparable
to the above proposal.
>
>  1. providing ICANN in whatever jurisdiction it may be incorporated
>     (US or other), with privileges and immunities that would make its
>     decisions non susceptible of recourse in front of the local courts
>
I am unable to see how any government or rather state will give a
blanket immunity to an organisation, unless in pursuance of an
international agreement (which would also provide alternative
accountability and means of recourse). In any case, an organisation like
ICANN does need some kind of external check on its powers. However, if
you have clear proposal about what and how exactly what you say can be
done, and will work, please share, if possible with examples and/ or
analogies.
>
>  1. invent a new type of international organization, founded by a
>     diversity of stakeholders (and not only governments), with
>     appropriate independence and guarantees
>
I have proposed one above (as also often earlier). What exactly is your
proposal and how will it work. And do you envisae such an 'invention'
beign done and sustainef without supporting international law. I cant
see how it is possible. But perhaps you can explain.

>
> Are you advocating in favor of option 1)?

I have made my position clear above... It is 1 plus 3 in a way.
>
> Would you be amenable to option 2), if there are sufficient
> accountability mechanisms (including the enhanced IRP proposed by the
> CCWG)?

As mentioned above, I cant understand how 2 works. Please help by
explaining. Further I have mentioned my preference for public interest/
law institutions like some kind of international court over private law/
interest ones, and also given my reasons.
>
> Do you have suggestions regarding option 3)? We would all be happy to
> identify a new approach.

Yes, I shard it. Look forward to your and other views.

parminder
>
> Best
>
> Bertrand
>
>
>  
>
>
> "/Le plus beau métier des hommes, c'est d'unir les hommes/", Antoine
> de Saint Exupéry
> ("/There is no greater mission for humans than uniting humans/")
>
> BERTRAND DE LA CHAPELLE
> Internet & Jurisdiction Project | Director
> email bdelachapelle at internetjurisdiction.net
> <mailto:bdelachapelle at internetjurisdiction.net>
> email bdelachapelle at gmail.com <mailto:bdelachapelle at gmail.com>
> twitter @IJurisdiction
> <https://twitter.com/IJurisdiction> | @bdelachapelle
> <https://twitter.com/bdelachapelle>
> mobile +33 (0)6 11 88 33 32
> www.internetjurisdiction.net <http://www.internetjurisdiction.net>
>
> A GLOBAL MULTI-STAKEHOLDER DIALOGUE PROCESS
>
>
> On Tue, Jun 9, 2015 at 4:48 PM, parminder <parminder at itforchange.net
> <mailto:parminder at itforchange.net>> wrote:
>
>
>
>     On Tuesday 09 June 2015 07:39 PM, Matthias C. Kettemann wrote:
>>     Dear all,
>>
>>     we should really be careful in using legal terminology.
>>     "International jurisdiction" usually means that in light of an
>>     international set of facts the courts of a certain country will
>>     be most suited to hear the case (see e.g. here
>>     <http://ec.europa.eu/justice/glossary/international-jurisdiction_en.htm>).
>
>     That is one definition of the term, looking at it from a domestic
>     point of view. Here <http://International%20jurisdiction> is
>     another way to look at it, coming from a global point of view -
>     and of course this current discussion comes from a global point of
>     view.
>
>>     Conflicts of jurisdiciton (and conflicts of law) are a daily
>>     occurence in online settings. International courts, however, are
>>     a different matter entirely. They are few and far between and, in
>>     their present design, are not in a position to ensure
>>     accountability. For that we need more permanent oversight
>>     structures. I'm not convinced that only a national legal anchor
>>     can do the trick.
>
>     That is the point. So then what international option do we have?
>     If we are to live a common digital future, with an adequately
>     global Internet, we have to find the necessary legal and political
>     ways to do it, even if they do not exist today. I am much more
>     convinced than others here that there is enough existing that can
>     be evolved in the right direction - but to do that the political
>     will has to first be stated and worked with.
>
>     If international law and jurisdiction can be begun to be evolved
>     in such a complex and contested area like international crime, it
>     should certainly be so much easier to do with regard to management
>     of basic techno-logical infrastructure of the Internet, where
>     there is, at least at present, so less to dispute, and the
>     positive advantage so huge.
>
>     Please note this sentence from the submission of Roberto Bissio, a
>     top global civil society leader, made to the CCWG process - he is
>     an official adviser to the process. (This submission was earlier
>     forwarded by Carlos to these elists, but I am enclosing it again.)
>
>     "The International Criminal Court was negotiated and ratified in
>     as much time as the discussion of the governance of ICANN is
>     already taking."
>
>     Does this say something?
>
>     And do we not know what kind of international innovations are
>     daily invented, like in the area of IP enforcement, and trade
>     dispute settlement, and now also 'investor protection' for global
>     corporates from domestic policies/ law and even courts, when it is
>     in the interest of the most powerful countries. Why do we then shy
>     away from institutional innovations when genuine public interest
>     is involved. It is a case of greater internationalisation where it
>     suits them, and full scepticism about international law and
>     jurisdiction where is does not. That is not ok.
>
>     parminder
>
>
>
>>     International law, however, does not yet provide for
>>     accountability structures for the 'management' and administration
>>     of the stability, security etc. of the global Internet.
>>
>>     Kind regards
>>
>>     Matthias
>>
>>
>>     On Tue, Jun 9, 2015 at 3:49 PM, "Kleinwächter, Wolfgang"
>>     <wolfgang.kleinwaechter at medienkomm.uni-halle.de
>>     <mailto:wolfgang.kleinwaechter at medienkomm.uni-halle.de>> wrote:
>>
>>         Hi Parminder,
>>
>>         can you specify what do you understand under "international
>>         jurisdiction"? Do you want to create an "International
>>         (Internet) Court"? Do you want to have ICANN under the
>>         International Court of Justice in The Hague? International
>>         Courts are created by intergovernmental treaties. Here is a
>>         list of "International Courts":
>>         http://en.wikipedia.org/wiki/International_court.
>>
>>         Wolfgang
>>
>>
>>
>>
>>
>>
>>         -----Ursprüngliche Nachricht-----
>>         Von: governance-request at lists.igcaucus.org
>>         <mailto:governance-request at lists.igcaucus.org> im Auftrag von
>>         parminder
>>         Gesendet: Di 09.06.2015 15 <tel:09.06.2015%2015>:41
>>         An: governance at lists.igcaucus.org
>>         <mailto:governance at lists.igcaucus.org>; Michael Froomkin -
>>         U.Miami School of Law; Mawaki Chango
>>         Betreff: Re: [governance] IANA transition - BR Gov comments
>>         on the CCWG-Accountability Draft Proposal
>>
>>
>>
>>         On Tuesday 09 June 2015 06:26 PM, Michael Froomkin - U.Miami
>>         School of
>>         Law wrote:
>>         >
>>         > I think that bodies which do not need to fear supervision by
>>         > legitimate courts end up like FIFA. FIFA had a legal status in
>>         > Switzerland that basically insulated it the way that the
>>         Brazilian
>>         > document seems to suggest would be what they want for
>>         ICANN.  (It's
>>         > also the legal status ICANN has at times suggested it would
>>         like.)
>>         >
>>         > The lesson of history seems unusually clear here.
>>
>>         Agree that ICANN cannot be left jurisdictionally
>>         un-supervised - that
>>         may be even more dangerous than the present situation.
>>         However, the
>>         right supervision or oversight is of international
>>         jurisdiction and law,
>>         not that of the US . This is what Brazil has to make upfront
>>         as the
>>         implication of what it is really seeking, and its shyness and
>>         reticence
>>         to say so is what I noted as surprising in an earlier email
>>         in this
>>         thread. Not putting out clearly what exactly it wants would
>>         lead to
>>         misconceptions about its position, which IMHO can be seen
>>         from how
>>         Michael reads it.  I am sure this is not how Brazil meant it
>>         - to free
>>         ICANN from all kinds of jurisdictional oversight whatsoever -
>>         but then
>>         Brazil needs to say clearly what is it that it wants, and how
>>         can it can
>>         obtained. Brazil, please come out of your NetMundial hangover
>>         and take
>>         political responsibility for what you say and seek!
>>
>>         parminder
>>
>>
>>         >
>>         > On Tue, 9 Jun 2015, Mawaki Chango wrote:
>>         >
>>         >>
>>         >> It's good to see a law scholar involved in this
>>         discussion. I'll
>>         >> leave it to the Brazilian party to
>>         >> ultimate tell whether your reading is correct or not. In
>>         the meantime
>>         >> I'd volunteer the following
>>         >> comments.
>>         >>
>>         >> On Jun 8, 2015 10:46 PM, "Michael Froomkin - U.Miami
>>         School of Law"
>>         >> <froomkin at law.miami.edu <mailto:froomkin at law.miami.edu>>
>>         wrote:
>>         >> >
>>         >> > Perhaps I'm misreading something, but I read this
>>         document to make
>>         >> the following assertions:
>>         >> >
>>         >> > 1. All restrictions on ICANN's location must be removed.
>>         >> >
>>         >>
>>         >> And the question reopened for deliberation by all
>>         stakeholders,
>>         >> including governments among others.
>>         >> Only the outcome of such deliberation will be fully
>>         legitimate within
>>         >> the framework of the post-2015
>>         >> ICANN.
>>         >>
>>         >> > 2. ICANN does not have to leave the US but must be
>>         located in a
>>         >> place where the governing law has
>>         >> certain characteristics, including not having the
>>         possibiliity that
>>         >> courts overrule ICANN (or at
>>         >> least the IRP).
>>         >> >
>>         >> > (And, as it happens, the US is not such a place....)
>>         >> >
>>         >>
>>         >> Not only avoiding courts overruling relevant outcomes of
>>         the Internet
>>         >> global community processes,
>>         >> but also examining and resolving the possible
>>         interferences/conflicts
>>         >> that might arise for
>>         >> government representatives being subject to a foreign
>>         country law
>>         >> simply in the process of attending
>>         >> to their regular duties (if they were to be fully engaged
>>         with ICANN).
>>         >>
>>         >> Quote:
>>         >> "From the Brazilian perspective the existing structure
>>         clearly imposes limits to the participation
>>         >>
>>         > ??
>>         > ?of governmental representatives, as it is unlikely that a
>>         representative of a foreign government wi
>>         >> ll be authorized (by its own government) to formally
>>         accept a position in a body pertaining to a U.
>>         >>
>>         >> S. corporation."
>>         >>
>>         >> This may be what you're getting at with your point 3
>>         below, but I'm
>>         >> not sure whether the problem is
>>         >> only the fact that governments have to deal with a
>>         corporate form/law
>>         >> or whether it is altogether
>>         >> the fact that it is a single country law without any form of
>>         >> deliberate endorsement by the other
>>         >> governments (who also have law making power in their
>>         respective
>>         >> country just as the US government).
>>         >>
>>         >> Assuming your reading is correct, and if necessary
>>         complemented by my
>>         >> remarks above, I'd be
>>         >> interested in hearing from you about any issues you may
>>         see with the
>>         >> BR gov comments.
>>         >> Thanks,
>>         >>
>>         >> Mawaki
>>         >>
>>         >> >
>>         >> > 3. ICANN doesn't have to change its form, but it needs a
>>         form where
>>         >> governments are comfortable.
>>         >> >
>>         >> > (And, as it happens, the corporate form is not such a
>>         form....)
>>         >> >
>>         >> >
>>         >> > What am I missing?
>>         >> >
>>         >> >
>>         >> >
>>         >> > On Sat, 6 Jun 2015, Carlos A. Afonso wrote:
>>         >> >
>>         >> >> For the ones who are following the IANA transition
>>         process: attached
>>         >> >> please find the comments posted by the government of
>>         Brazil on
>>         >> June 03,
>>         >> >> 2015, in response to the call for public comments on the
>>         >> >> CCWG-Accountability Initial Draft Proposal.
>>         >> >>
>>         >> >> I generally agree with the comments.
>>         >> >>
>>         >> >> fraternal regards
>>         >> >>
>>         >> >> --c.a.
>>         >> >>
>>         >> >
>>         >> > --
>>         >> > A. Michael Froomkin, http://law.tm
>>         >> > Laurie Silvers & Mitchell Rubenstein Distinguished
>>         Professor of Law
>>         >> > Editor, Jotwell: The Journal of Things We Like (Lots), 
>>         jotwell.com <http://jotwell.com>
>>         >> > Program Chair, We Robot 2016 | +1 (305) 284-4285
>>         <tel:%2B1%20%28305%29%20284-4285> |  froomkin at law.tm
>>         <mailto:froomkin at law.tm>
>>         >> > U. Miami School of Law, P.O. Box 248087, Coral Gables,
>>         FL 33124 USA
>>         >> >                         -->It's warm here.<--
>>         >> > ____________________________________________________________
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>>         >>
>>         >> > ____________________________________________________________
>>         >> > You received this message as a subscriber on the list:
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>>     -- 
>>
>>     Dr. Matthias C. Kettemann, LL.M. (Harvard)
>>     Post-Doc Fellow | Cluster of Excellence „
>>     <http://www.normativeorders.net/de/organisation/mitarbeiter-a-z/person/442>Normative
>>     Orders
>>     <http://www.normativeorders.net/de/organisation/mitarbeiter-a-z/person/442>”
>>     <http://www.normativeorders.net/de/organisation/mitarbeiter-a-z/person/442>,
>>     University of Frankfurt am Main
>>     Lecturer | Institute of International Law andInternational
>>     Relations <http://voelkerrecht.uni-graz.at/en/>, University of Graz
>>     <http://trainingszentrum-menschenrechte.uni-graz.at/en/infos-fuer-studierende/>
>>
>>     Goethe-Universität Frankfurt am Main
>>     Exzellenzcluster „Normative Ordnungen“
>>     Max-Horkheimer-Straße 2
>>     60629 Frankfurt am Main / Germany
>>
>>     E | matthias.kettemann at gmail.com
>>     <mailto:matthias.kettemann at gmail.com>
>>     Blog <http://internationallawandtheinternet.blogspot.com/> | SSRN
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>>     <https://plus.google.com/u/0/116310540881122884114/posts>
>>
>>     Recent publications:
>>     The Common Interest in International Law (2014, co-editor)
>>     <http://www.intersentia.co.uk/searchDetail.aspx?bookId=103066&authors=Wolfgang>
>>
>>     European Yearbook on Human Rights 2014 (2014, co-editor)
>>     <http://www.nwv.at/recht/verfassungsrecht/1077_european_yearbook_on_human_rights_2014/>
>>     Freedom of Expression and the Internet (2014, co-author)
>>     <https://book.coe.int/eur/en/human-rights-and-democracy/5810-freedom-of-expression-and-the-internet.html> 
>>                                                
>>
>
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From parminder at itforchange.net  Wed Jun 10 05:26:38 2015
From: parminder at itforchange.net (parminder)
Date: Wed, 10 Jun 2015 14:56:38 +0530
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <alpine.LRH.2.00.1506091131280.12194@post.law.miami.edu>
References: <557378D2.6030503@cafonso.ca> <alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu> <CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com> <alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu> <5576ED01.9010606@itforchange.net> <alpine.LRH.2.00.1506090955160.12194@post.law.miami.edu> <55770298.20609@itforchange.net> <alpine.LRH.2.00.1506091131280.12194@post.law.miami.edu>
Message-ID: <557802CE.4080505@itforchange.net>



On Tuesday 09 June 2015 09:09 PM, Michael Froomkin - U.Miami School of
Law wrote:
> On Tue, 9 Jun 2015, parminder wrote:
>
>> Are you saying that it is not possible for ICANN to undertake the
>> functions that it needs to
>> undertake while being an international institution incorporated under
>> international law, and free
>> from any countries jurisdiction in terms of its basic governance
>> functions? I just want to be clear.
>
> I don't know what an "an international institution incorporated under
> international law" is except bodies like FIFA (under Swiss law), or UN
> bodies, or sui generis treaty bodies.  It is certainly *possible* for
> ICANN to have any of those statuses and to "function"; as far as I can
> tell, however, it's just not possible to build in meaningful
> accountability in those structures.

There are of course problems and issues everywhere, but it can hardly be
said that UN and/or treaty bodies work without meaningful
accountability. Further, any new international treaty/ law establishing
a new body - an really international ICANN for instance - can write all
the accountability method it or we want to have written in it.
>
> There is no general international law of incorporation of which I am
> aware.  Corporate (formation) law is all national law.  That is the
> reality that must be confronted.  There is no place I can go to get an
> international corporate charter, and good thing too - why should I be
> able to exempt myself from national law?

This hits a fundamental issue - I see ICANN, in its ideal form, as a
governance body, since it does governance functions, and not as a
private corporation. So we need a new international treaty sanctifying
ICANN as a global governance body - with its basic forms largely
unchanged, with new accountability means (including judicial
accountability) and not ways to be able incorporate a private kind of an
entity outside national laws, which is admittedly both very difficult,
and rather undesirable.

parminder

>
>>
>> If so, that would be an interesting assertion. Now, I am sure this is
>> not true. However, I am not an
>> international legal expert and not able to right now build and
>> present the whole scenario for you on
>> how it can be done. I am sure there are a number of international
>> organisations that do different
>> kind of complex activities and have found ways to do it under
>> international law and jurisdiction.
>
> But those are in the main treaty bodies.
>
>> And if some new directions and evolutions are needed that can also be
>> worked out (please see my last
>> email on this count).
>>
>
> Here we just disagree. I see the task as monsterously hard, the work
> of a decade or more.
>
>> BTW it is a sad statement on the geo political economy of knowledge
>> production in this area that
>> there is not one full fledged scenario developed by anyone on how
>> ICANN can undertakes its
>> activities under international law/ jurisdiction - which I am pretty
>> sure it can. Many parties,
>> including governments have called for it, and yes I agree someone
>> should come up with a full
>> politico-legal and institutional description of how it can and should
>> be done - with all the details
>> in place. And that is the sad part of it, of how things stand at the
>> global level, had now lopsided
>> is resource distribution, all kinds of resources.
>>
>
> Alas.
>
>> Not to shy away from responsibility - I am happy to collaborate with
>> anyone if someone can out time
>> into it.
>>
>> And no, it cannot be solved by any other country jurisdiction. Apart
>> from it being still being wrong
>> in principle, how would US accept that another jurisdiction is better
>> than its own and accede to
>> such a change. Accepting the patently justified fact that an
>> international infrastructure should be
>> governed internationally, on the other hand, is much easier .
>>
>
> I would not dismiss this so quickly.  I take a substantial fraction of
> the opposition to US residual control (for that is all we are talking
> about) to be tied to the US's status as defacto hegemon.  Moving ICANN
> to another state with a strong human rights record would answer that
> part of the critique.
>
> In my view, a bespoke international structure is actually much harder
> -- it would need to be invented almost from scratch.  And it is bound
> to be flawed; national rules are the result of at least decades if not
> more of trial and error.
>
>> parminder
>>
>> On Tuesday 09 June 2015 07:31 PM, Michael Froomkin - U.Miami School
>> of Law wrote:
>>       I don't know what it means to say that ICANN should be subject
>> to "international
>>       jurisdiction and law".  For the relevant issues, that sounds
>> like a pretty empty set.
>>
>>       As regards most of the sort of things one might expect to worry
>> about - e.g. fidelity to
>>       articles of incorporation - international law is basically
>> silent.  And there is no
>>       relevant jurisdiction either.  So I remain stuck in the
>> position that there must be a
>>       state anchor whose courts are given the job.  It does not of
>> course need to be the US,
>>       although I would note that the US courts are by international
>> standards not shy and
>>       actually fairly good at this sort of thing.
>>
>>       I do think, however, that it should NOT be Switzerland, as its
>> courts are historically
>>       over-deferential to international bodies - perhaps as part of
>> state policy to be an
>>       attractive location for those high-spending international
>> meetings.
>>
>>       I'd be real happy with Canada, though.
>>
>>       On Tue, 9 Jun 2015, parminder wrote:
>>
>>
>>
>>             On Tuesday 09 June 2015 06:26 PM, Michael Froomkin -
>> U.Miami School of Law
>>             wrote:
>>
>>                   I think that bodies which do not need to fear
>> supervision by
>>             legitimate courts end up
>>                   like FIFA. FIFA had a legal status in Switzerland
>> that basically
>>             insulated it the way
>>                   that the Brazilian document seems to suggest would
>> be what they want
>>             for ICANN.  (It's
>>                   also the legal status ICANN has at times suggested
>> it would like.)
>>
>>                   The lesson of history seems unusually clear here.
>>
>>
>>             Agree that ICANN cannot be left jurisdictionally
>> un-supervised - that may be
>>             even more dangerous
>>             than the present situation. However, the right
>> supervision or oversight is
>>             of international
>>             jurisdiction and law, not that of the US . This is what
>> Brazil has to make
>>             upfront as the
>>             implication of what it is really seeking, and its shyness
>> and reticence to
>>             say so is what I noted as
>>             surprising in an earlier email in this thread. Not
>> putting out clearly what
>>             exactly it wants would
>>             lead to misconceptions about its position, which IMHO can
>> be seen from how
>>             Michael reads it.  I am
>>             sure this is not how Brazil meant it - to free ICANN from
>> all kinds of
>>             jurisdictional oversight
>>             whatsoever - but then Brazil needs to say clearly what is
>> it that it wants,
>>             and how can it can
>>             obtained. Brazil, please come out of your NetMundial
>> hangover and take
>>             political responsibility for
>>             what you say and seek!
>>
>>             parminder
>>
>>
>>
>>                   On Tue, 9 Jun 2015, Mawaki Chango wrote:
>>
>>
>>                         It's good to see a law scholar involved in
>> this discussion. I'll
>>             leave it to
>>                         the Brazilian party to
>>                         ultimate tell whether your reading is correct
>> or not. In the
>>             meantime I'd
>>                         volunteer the following
>>                         comments.
>>
>>                         On Jun 8, 2015 10:46 PM, "Michael Froomkin -
>> U.Miami School of
>>             Law"
>>                         <froomkin at law.miami.edu> wrote:
>>                         >
>>                         > Perhaps I'm misreading something, but I
>> read this document to
>>             make the
>>                         following assertions:
>>                         >
>>                         > 1. All restrictions on ICANN's location
>> must be removed.
>>                         >
>>
>>                         And the question reopened for deliberation by
>> all stakeholders,
>>             including
>>                         governments among others.
>>                         Only the outcome of such deliberation will be
>> fully legitimate
>>             within the
>>                         framework of the post-2015
>>                         ICANN.
>>
>>                         > 2. ICANN does not have to leave the US but
>> must be located in
>>             a place
>>                         where the governing law has
>>                         certain characteristics, including not having
>> the possibiliity
>>             that courts
>>                         overrule ICANN (or at
>>                         least the IRP).
>>                         >
>>                         > (And, as it happens, the US is not such a
>> place....)
>>                         >
>>
>>                         Not only avoiding courts overruling relevant
>> outcomes of the
>>             Internet global
>>                         community processes,
>>                         but also examining and resolving the possible
>>             interferences/conflicts that
>>                         might arise for
>>                         government representatives being subject to a
>> foreign country
>>             law simply in
>>                         the process of attending
>>                         to their regular duties (if they were to be
>> fully engaged with
>>             ICANN).
>>
>>                         Quote:
>>                        
>>            
>> "From the Brazilian perspective the existing structure clearly imposes limits to the participation
>>
>>            
>>      ???of governmental representatives, as it is unlikely that a representative of a foreign government
>>              w
>>                   i
>> ll be authorized (by its own government) to formally accept a position in a body pertaining to a U.
>>
>>
>>
>>                         S. corporation."
>>
>>                         This may be what you're getting at with your
>> point 3 below, but
>>             I'm not sure
>>                         whether the problem is
>>                         only the fact that governments have to deal
>> with a corporate
>>             form/law or
>>                         whether it is altogether
>>                         the fact that it is a single country law
>> without any form of
>>             deliberate
>>                         endorsement by the other
>>                         governments (who also have law making power
>> in their respective
>>             country just
>>                         as the US government).
>>
>>                         Assuming your reading is correct, and if
>> necessary complemented
>>             by my
>>                         remarks above, I'd be
>>                         interested in hearing from you about any
>> issues you may see with
>>             the BR gov
>>                         comments.
>>                         Thanks,
>>
>>                         Mawaki
>>
>>                         >
>>                         > 3. ICANN doesn't have to change its form,
>> but it needs a form
>>             where
>>                         governments are comfortable.
>>                         >
>>                         > (And, as it happens, the corporate form is
>> not such a
>>             form....)
>>                         >
>>                         >
>>                         > What am I missing?
>>                         >
>>                         >
>>                         >
>>                         > On Sat, 6 Jun 2015, Carlos A. Afonso wrote:
>>                         >
>>                         >> For the ones who are following the IANA
>> transition process:
>>             attached
>>                         >> please find the comments posted by the
>> government of Brazil
>>             on June 03,
>>                         >> 2015, in response to the call for public
>> comments on the
>>                         >> CCWG-Accountability Initial Draft Proposal.
>>                         >>
>>                         >> I generally agree with the comments.
>>                         >>
>>                         >> fraternal regards
>>                         >>
>>                         >> --c.a.
>>                         >>
>>                         >
>>                         > --
>>                         > A. Michael Froomkin, http://law.tm
>>                         > Laurie Silvers & Mitchell Rubenstein
>> Distinguished Professor
>>             of Law
>>                         > Editor, Jotwell: The Journal of Things We
>> Like (Lots), 
>>             jotwell.com
>>                         > Program Chair, We Robot 2016 | +1 (305)
>> 284-4285 | 
>>             froomkin at law.tm
>>                         > U. Miami School of Law, P.O. Box 248087,
>> Coral Gables, FL
>>             33124 USA
>>                         >                         -->It's warm here.<--
>>                         >
>> ____________________________________________________________
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>>                         >
>> ____________________________________________________________
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From udochukwu.njoku at unn.edu.ng  Wed Jun 10 06:43:28 2015
From: udochukwu.njoku at unn.edu.ng (Chris Prince Udochukwu Njoku)
Date: Wed, 10 Jun 2015 11:43:28 +0100
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <557802CE.4080505@itforchange.net>
References: <557378D2.6030503@cafonso.ca>
	<alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu>
	<CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com>
	<alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu>
	<5576ED01.9010606@itforchange.net>
	<alpine.LRH.2.00.1506090955160.12194@post.law.miami.edu>
	<55770298.20609@itforchange.net>
	<alpine.LRH.2.00.1506091131280.12194@post.law.miami.edu>
	<557802CE.4080505@itforchange.net>
Message-ID: <CAOz-jXSR0tQFx8RV4Rtw_O=RbsHSNnRwQbZCsYA-9QTXBV-cnQ@mail.gmail.com>

Parminder is emphasizing a true point. An organization which represents the
interests of many nations, though located in one nation (as it must be)
must not be subjected to laws that ought to be (and are) for national
organizations. This should be the definition of international jurisdiction
here. If the host nation's laws don't actually accommodate the
multinational stakeholding nature of the organization, it's a ripe clue to
the need for relocation to a place that is more friendly to the
organization's operations.
On Jun 10, 2015 11:27 AM, "parminder" <parminder at itforchange.net> wrote:

>
>
> On Tuesday 09 June 2015 09:09 PM, Michael Froomkin - U.Miami School of
> Law wrote:
> > On Tue, 9 Jun 2015, parminder wrote:
> >
> >> Are you saying that it is not possible for ICANN to undertake the
> >> functions that it needs to
> >> undertake while being an international institution incorporated under
> >> international law, and free
> >> from any countries jurisdiction in terms of its basic governance
> >> functions? I just want to be clear.
> >
> > I don't know what an "an international institution incorporated under
> > international law" is except bodies like FIFA (under Swiss law), or UN
> > bodies, or sui generis treaty bodies.  It is certainly *possible* for
> > ICANN to have any of those statuses and to "function"; as far as I can
> > tell, however, it's just not possible to build in meaningful
> > accountability in those structures.
>
> There are of course problems and issues everywhere, but it can hardly be
> said that UN and/or treaty bodies work without meaningful
> accountability. Further, any new international treaty/ law establishing
> a new body - an really international ICANN for instance - can write all
> the accountability method it or we want to have written in it.
> >
> > There is no general international law of incorporation of which I am
> > aware.  Corporate (formation) law is all national law.  That is the
> > reality that must be confronted.  There is no place I can go to get an
> > international corporate charter, and good thing too - why should I be
> > able to exempt myself from national law?
>
> This hits a fundamental issue - I see ICANN, in its ideal form, as a
> governance body, since it does governance functions, and not as a
> private corporation. So we need a new international treaty sanctifying
> ICANN as a global governance body - with its basic forms largely
> unchanged, with new accountability means (including judicial
> accountability) and not ways to be able incorporate a private kind of an
> entity outside national laws, which is admittedly both very difficult,
> and rather undesirable.
>
> parminder
>
> >
> >>
> >> If so, that would be an interesting assertion. Now, I am sure this is
> >> not true. However, I am not an
> >> international legal expert and not able to right now build and
> >> present the whole scenario for you on
> >> how it can be done. I am sure there are a number of international
> >> organisations that do different
> >> kind of complex activities and have found ways to do it under
> >> international law and jurisdiction.
> >
> > But those are in the main treaty bodies.
> >
> >> And if some new directions and evolutions are needed that can also be
> >> worked out (please see my last
> >> email on this count).
> >>
> >
> > Here we just disagree. I see the task as monsterously hard, the work
> > of a decade or more.
> >
> >> BTW it is a sad statement on the geo political economy of knowledge
> >> production in this area that
> >> there is not one full fledged scenario developed by anyone on how
> >> ICANN can undertakes its
> >> activities under international law/ jurisdiction - which I am pretty
> >> sure it can. Many parties,
> >> including governments have called for it, and yes I agree someone
> >> should come up with a full
> >> politico-legal and institutional description of how it can and should
> >> be done - with all the details
> >> in place. And that is the sad part of it, of how things stand at the
> >> global level, had now lopsided
> >> is resource distribution, all kinds of resources.
> >>
> >
> > Alas.
> >
> >> Not to shy away from responsibility - I am happy to collaborate with
> >> anyone if someone can out time
> >> into it.
> >>
> >> And no, it cannot be solved by any other country jurisdiction. Apart
> >> from it being still being wrong
> >> in principle, how would US accept that another jurisdiction is better
> >> than its own and accede to
> >> such a change. Accepting the patently justified fact that an
> >> international infrastructure should be
> >> governed internationally, on the other hand, is much easier .
> >>
> >
> > I would not dismiss this so quickly.  I take a substantial fraction of
> > the opposition to US residual control (for that is all we are talking
> > about) to be tied to the US's status as defacto hegemon.  Moving ICANN
> > to another state with a strong human rights record would answer that
> > part of the critique.
> >
> > In my view, a bespoke international structure is actually much harder
> > -- it would need to be invented almost from scratch.  And it is bound
> > to be flawed; national rules are the result of at least decades if not
> > more of trial and error.
> >
> >> parminder
> >>
> >> On Tuesday 09 June 2015 07:31 PM, Michael Froomkin - U.Miami School
> >> of Law wrote:
> >>       I don't know what it means to say that ICANN should be subject
> >> to "international
> >>       jurisdiction and law".  For the relevant issues, that sounds
> >> like a pretty empty set.
> >>
> >>       As regards most of the sort of things one might expect to worry
> >> about - e.g. fidelity to
> >>       articles of incorporation - international law is basically
> >> silent.  And there is no
> >>       relevant jurisdiction either.  So I remain stuck in the
> >> position that there must be a
> >>       state anchor whose courts are given the job.  It does not of
> >> course need to be the US,
> >>       although I would note that the US courts are by international
> >> standards not shy and
> >>       actually fairly good at this sort of thing.
> >>
> >>       I do think, however, that it should NOT be Switzerland, as its
> >> courts are historically
> >>       over-deferential to international bodies - perhaps as part of
> >> state policy to be an
> >>       attractive location for those high-spending international
> >> meetings.
> >>
> >>       I'd be real happy with Canada, though.
> >>
> >>       On Tue, 9 Jun 2015, parminder wrote:
> >>
> >>
> >>
> >>             On Tuesday 09 June 2015 06:26 PM, Michael Froomkin -
> >> U.Miami School of Law
> >>             wrote:
> >>
> >>                   I think that bodies which do not need to fear
> >> supervision by
> >>             legitimate courts end up
> >>                   like FIFA. FIFA had a legal status in Switzerland
> >> that basically
> >>             insulated it the way
> >>                   that the Brazilian document seems to suggest would
> >> be what they want
> >>             for ICANN.  (It's
> >>                   also the legal status ICANN has at times suggested
> >> it would like.)
> >>
> >>                   The lesson of history seems unusually clear here.
> >>
> >>
> >>             Agree that ICANN cannot be left jurisdictionally
> >> un-supervised - that may be
> >>             even more dangerous
> >>             than the present situation. However, the right
> >> supervision or oversight is
> >>             of international
> >>             jurisdiction and law, not that of the US . This is what
> >> Brazil has to make
> >>             upfront as the
> >>             implication of what it is really seeking, and its shyness
> >> and reticence to
> >>             say so is what I noted as
> >>             surprising in an earlier email in this thread. Not
> >> putting out clearly what
> >>             exactly it wants would
> >>             lead to misconceptions about its position, which IMHO can
> >> be seen from how
> >>             Michael reads it.  I am
> >>             sure this is not how Brazil meant it - to free ICANN from
> >> all kinds of
> >>             jurisdictional oversight
> >>             whatsoever - but then Brazil needs to say clearly what is
> >> it that it wants,
> >>             and how can it can
> >>             obtained. Brazil, please come out of your NetMundial
> >> hangover and take
> >>             political responsibility for
> >>             what you say and seek!
> >>
> >>             parminder
> >>
> >>
> >>
> >>                   On Tue, 9 Jun 2015, Mawaki Chango wrote:
> >>
> >>
> >>                         It's good to see a law scholar involved in
> >> this discussion. I'll
> >>             leave it to
> >>                         the Brazilian party to
> >>                         ultimate tell whether your reading is correct
> >> or not. In the
> >>             meantime I'd
> >>                         volunteer the following
> >>                         comments.
> >>
> >>                         On Jun 8, 2015 10:46 PM, "Michael Froomkin -
> >> U.Miami School of
> >>             Law"
> >>                         <froomkin at law.miami.edu> wrote:
> >>                         >
> >>                         > Perhaps I'm misreading something, but I
> >> read this document to
> >>             make the
> >>                         following assertions:
> >>                         >
> >>                         > 1. All restrictions on ICANN's location
> >> must be removed.
> >>                         >
> >>
> >>                         And the question reopened for deliberation by
> >> all stakeholders,
> >>             including
> >>                         governments among others.
> >>                         Only the outcome of such deliberation will be
> >> fully legitimate
> >>             within the
> >>                         framework of the post-2015
> >>                         ICANN.
> >>
> >>                         > 2. ICANN does not have to leave the US but
> >> must be located in
> >>             a place
> >>                         where the governing law has
> >>                         certain characteristics, including not having
> >> the possibiliity
> >>             that courts
> >>                         overrule ICANN (or at
> >>                         least the IRP).
> >>                         >
> >>                         > (And, as it happens, the US is not such a
> >> place....)
> >>                         >
> >>
> >>                         Not only avoiding courts overruling relevant
> >> outcomes of the
> >>             Internet global
> >>                         community processes,
> >>                         but also examining and resolving the possible
> >>             interferences/conflicts that
> >>                         might arise for
> >>                         government representatives being subject to a
> >> foreign country
> >>             law simply in
> >>                         the process of attending
> >>                         to their regular duties (if they were to be
> >> fully engaged with
> >>             ICANN).
> >>
> >>                         Quote:
> >>
> >>
> >> "From the Brazilian perspective the existing structure clearly imposes
> limits to the participation
> >>
> >>
> >>      ???of governmental representatives, as it is unlikely that a
> representative of a foreign government
> >>              w
> >>                   i
> >> ll be authorized (by its own government) to formally accept a position
> in a body pertaining to a U.
> >>
> >>
> >>
> >>                         S. corporation."
> >>
> >>                         This may be what you're getting at with your
> >> point 3 below, but
> >>             I'm not sure
> >>                         whether the problem is
> >>                         only the fact that governments have to deal
> >> with a corporate
> >>             form/law or
> >>                         whether it is altogether
> >>                         the fact that it is a single country law
> >> without any form of
> >>             deliberate
> >>                         endorsement by the other
> >>                         governments (who also have law making power
> >> in their respective
> >>             country just
> >>                         as the US government).
> >>
> >>                         Assuming your reading is correct, and if
> >> necessary complemented
> >>             by my
> >>                         remarks above, I'd be
> >>                         interested in hearing from you about any
> >> issues you may see with
> >>             the BR gov
> >>                         comments.
> >>                         Thanks,
> >>
> >>                         Mawaki
> >>
> >>                         >
> >>                         > 3. ICANN doesn't have to change its form,
> >> but it needs a form
> >>             where
> >>                         governments are comfortable.
> >>                         >
> >>                         > (And, as it happens, the corporate form is
> >> not such a
> >>             form....)
> >>                         >
> >>                         >
> >>                         > What am I missing?
> >>                         >
> >>                         >
> >>                         >
> >>                         > On Sat, 6 Jun 2015, Carlos A. Afonso wrote:
> >>                         >
> >>                         >> For the ones who are following the IANA
> >> transition process:
> >>             attached
> >>                         >> please find the comments posted by the
> >> government of Brazil
> >>             on June 03,
> >>                         >> 2015, in response to the call for public
> >> comments on the
> >>                         >> CCWG-Accountability Initial Draft Proposal.
> >>                         >>
> >>                         >> I generally agree with the comments.
> >>                         >>
> >>                         >> fraternal regards
> >>                         >>
> >>                         >> --c.a.
> >>                         >>
> >>                         >
> >>                         > --
> >>                         > A. Michael Froomkin, http://law.tm
> >>                         > Laurie Silvers & Mitchell Rubenstein
> >> Distinguished Professor
> >>             of Law
> >>                         > Editor, Jotwell: The Journal of Things We
> >> Like (Lots),
> >>             jotwell.com
> >>                         > Program Chair, We Robot 2016 | +1 (305)
> >> 284-4285 |
> >>             froomkin at law.tm
> >>                         > U. Miami School of Law, P.O. Box 248087,
> >> Coral Gables, FL
> >>             33124 USA
> >>                         >                         -->It's warm here.<--
> >>                         >
> >> ____________________________________________________________
> >>                         >
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> >>                         >
> >>                         >
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
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> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>                         >
> >> ____________________________________________________________
> >>                         > You received this message as a subscriber
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From toml at communisphere.com  Wed Jun 10 10:09:53 2015
From: toml at communisphere.com (Thomas Lowenhaupt)
Date: Wed, 10 Jun 2015 10:09:53 -0400
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <CAOz-jXSR0tQFx8RV4Rtw_O=RbsHSNnRwQbZCsYA-9QTXBV-cnQ@mail.gmail.com>
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Message-ID: <55784531.7090700@communisphere.com>

Chris,

Are you suggesting that the entity reside in a nation that would give it 
a negotiated form of diplomatic immunity?

Tom Lowenhaupt

On 6/10/2015 6:43 AM, Chris Prince Udochukwu Njoku wrote:
>
> Parminder is emphasizing a true point. An organization which 
> represents the interests of many nations, though located in one nation 
> (as it must be) must not be subjected to laws that ought to be (and 
> are) for national organizations. This should be the definition of 
> international jurisdiction here. If the host nation's laws don't 
> actually accommodate the multinational stakeholding nature of the 
> organization, it's a ripe clue to the need for relocation to a place 
> that is more friendly to the organization's operations.
>
> On Jun 10, 2015 11:27 AM, "parminder" <parminder at itforchange.net 
> <mailto:parminder at itforchange.net>> wrote:
>
>
>
>     On Tuesday 09 June 2015 09:09 PM, Michael Froomkin - U.Miami School of
>     Law wrote:
>     > On Tue, 9 Jun 2015, parminder wrote:
>     >
>     >> Are you saying that it is not possible for ICANN to undertake the
>     >> functions that it needs to
>     >> undertake while being an international institution incorporated
>     under
>     >> international law, and free
>     >> from any countries jurisdiction in terms of its basic governance
>     >> functions? I just want to be clear.
>     >
>     > I don't know what an "an international institution incorporated
>     under
>     > international law" is except bodies like FIFA (under Swiss law),
>     or UN
>     > bodies, or sui generis treaty bodies.  It is certainly
>     *possible* for
>     > ICANN to have any of those statuses and to "function"; as far as
>     I can
>     > tell, however, it's just not possible to build in meaningful
>     > accountability in those structures.
>
>     There are of course problems and issues everywhere, but it can
>     hardly be
>     said that UN and/or treaty bodies work without meaningful
>     accountability. Further, any new international treaty/ law
>     establishing
>     a new body - an really international ICANN for instance - can
>     write all
>     the accountability method it or we want to have written in it.
>     >
>     > There is no general international law of incorporation of which I am
>     > aware.  Corporate (formation) law is all national law. That is the
>     > reality that must be confronted.  There is no place I can go to
>     get an
>     > international corporate charter, and good thing too - why should
>     I be
>     > able to exempt myself from national law?
>
>     This hits a fundamental issue - I see ICANN, in its ideal form, as a
>     governance body, since it does governance functions, and not as a
>     private corporation. So we need a new international treaty sanctifying
>     ICANN as a global governance body - with its basic forms largely
>     unchanged, with new accountability means (including judicial
>     accountability) and not ways to be able incorporate a private kind
>     of an
>     entity outside national laws, which is admittedly both very difficult,
>     and rather undesirable.
>
>     parminder
>
>     >
>     >>
>     >> If so, that would be an interesting assertion. Now, I am sure
>     this is
>     >> not true. However, I am not an
>     >> international legal expert and not able to right now build and
>     >> present the whole scenario for you on
>     >> how it can be done. I am sure there are a number of international
>     >> organisations that do different
>     >> kind of complex activities and have found ways to do it under
>     >> international law and jurisdiction.
>     >
>     > But those are in the main treaty bodies.
>     >
>     >> And if some new directions and evolutions are needed that can
>     also be
>     >> worked out (please see my last
>     >> email on this count).
>     >>
>     >
>     > Here we just disagree. I see the task as monsterously hard, the work
>     > of a decade or more.
>     >
>     >> BTW it is a sad statement on the geo political economy of knowledge
>     >> production in this area that
>     >> there is not one full fledged scenario developed by anyone on how
>     >> ICANN can undertakes its
>     >> activities under international law/ jurisdiction - which I am
>     pretty
>     >> sure it can. Many parties,
>     >> including governments have called for it, and yes I agree someone
>     >> should come up with a full
>     >> politico-legal and institutional description of how it can and
>     should
>     >> be done - with all the details
>     >> in place. And that is the sad part of it, of how things stand
>     at the
>     >> global level, had now lopsided
>     >> is resource distribution, all kinds of resources.
>     >>
>     >
>     > Alas.
>     >
>     >> Not to shy away from responsibility - I am happy to collaborate
>     with
>     >> anyone if someone can out time
>     >> into it.
>     >>
>     >> And no, it cannot be solved by any other country jurisdiction.
>     Apart
>     >> from it being still being wrong
>     >> in principle, how would US accept that another jurisdiction is
>     better
>     >> than its own and accede to
>     >> such a change. Accepting the patently justified fact that an
>     >> international infrastructure should be
>     >> governed internationally, on the other hand, is much easier .
>     >>
>     >
>     > I would not dismiss this so quickly.  I take a substantial
>     fraction of
>     > the opposition to US residual control (for that is all we are
>     talking
>     > about) to be tied to the US's status as defacto hegemon. Moving
>     ICANN
>     > to another state with a strong human rights record would answer that
>     > part of the critique.
>     >
>     > In my view, a bespoke international structure is actually much
>     harder
>     > -- it would need to be invented almost from scratch.  And it is
>     bound
>     > to be flawed; national rules are the result of at least decades
>     if not
>     > more of trial and error.
>     >
>     >> parminder
>     >>
>     >> On Tuesday 09 June 2015 07:31 PM, Michael Froomkin - U.Miami School
>     >> of Law wrote:
>     >>       I don't know what it means to say that ICANN should be
>     subject
>     >> to "international
>     >>       jurisdiction and law".  For the relevant issues, that sounds
>     >> like a pretty empty set.
>     >>
>     >>       As regards most of the sort of things one might expect to
>     worry
>     >> about - e.g. fidelity to
>     >>       articles of incorporation - international law is basically
>     >> silent.  And there is no
>     >>       relevant jurisdiction either.  So I remain stuck in the
>     >> position that there must be a
>     >>       state anchor whose courts are given the job. It does not of
>     >> course need to be the US,
>     >>       although I would note that the US courts are by international
>     >> standards not shy and
>     >>       actually fairly good at this sort of thing.
>     >>
>     >>       I do think, however, that it should NOT be Switzerland,
>     as its
>     >> courts are historically
>     >>       over-deferential to international bodies - perhaps as part of
>     >> state policy to be an
>     >>       attractive location for those high-spending international
>     >> meetings.
>     >>
>     >>       I'd be real happy with Canada, though.
>     >>
>     >>       On Tue, 9 Jun 2015, parminder wrote:
>     >>
>     >>
>     >>
>     >>             On Tuesday 09 June 2015 06:26 PM, Michael Froomkin -
>     >> U.Miami School of Law
>     >>             wrote:
>     >>
>     >>                   I think that bodies which do not need to fear
>     >> supervision by
>     >>             legitimate courts end up
>     >>                   like FIFA. FIFA had a legal status in Switzerland
>     >> that basically
>     >>             insulated it the way
>     >>                   that the Brazilian document seems to suggest
>     would
>     >> be what they want
>     >>             for ICANN.  (It's
>     >>                   also the legal status ICANN has at times
>     suggested
>     >> it would like.)
>     >>
>     >>                   The lesson of history seems unusually clear here.
>     >>
>     >>
>     >>             Agree that ICANN cannot be left jurisdictionally
>     >> un-supervised - that may be
>     >>             even more dangerous
>     >>             than the present situation. However, the right
>     >> supervision or oversight is
>     >>             of international
>     >>             jurisdiction and law, not that of the US . This is what
>     >> Brazil has to make
>     >>             upfront as the
>     >>             implication of what it is really seeking, and its
>     shyness
>     >> and reticence to
>     >>             say so is what I noted as
>     >>             surprising in an earlier email in this thread. Not
>     >> putting out clearly what
>     >>             exactly it wants would
>     >>             lead to misconceptions about its position, which
>     IMHO can
>     >> be seen from how
>     >>             Michael reads it.  I am
>     >>             sure this is not how Brazil meant it - to free
>     ICANN from
>     >> all kinds of
>     >>             jurisdictional oversight
>     >>             whatsoever - but then Brazil needs to say clearly
>     what is
>     >> it that it wants,
>     >>             and how can it can
>     >>             obtained. Brazil, please come out of your NetMundial
>     >> hangover and take
>     >>             political responsibility for
>     >>             what you say and seek!
>     >>
>     >>             parminder
>     >>
>     >>
>     >>
>     >>                   On Tue, 9 Jun 2015, Mawaki Chango wrote:
>     >>
>     >>
>     >>                         It's good to see a law scholar involved in
>     >> this discussion. I'll
>     >>             leave it to
>     >>                         the Brazilian party to
>     >>                         ultimate tell whether your reading is
>     correct
>     >> or not. In the
>     >>             meantime I'd
>     >>                         volunteer the following
>     >>                         comments.
>     >>
>     >>                         On Jun 8, 2015 10:46 PM, "Michael
>     Froomkin -
>     >> U.Miami School of
>     >>             Law"
>     >>                         <froomkin at law.miami.edu
>     <mailto:froomkin at law.miami.edu>> wrote:
>     >>                         >
>     >>                         > Perhaps I'm misreading something, but I
>     >> read this document to
>     >>             make the
>     >>                         following assertions:
>     >>                         >
>     >>                         > 1. All restrictions on ICANN's location
>     >> must be removed.
>     >>                         >
>     >>
>     >>                         And the question reopened for
>     deliberation by
>     >> all stakeholders,
>     >>             including
>     >>                         governments among others.
>     >>                         Only the outcome of such deliberation
>     will be
>     >> fully legitimate
>     >>             within the
>     >>                         framework of the post-2015
>     >>                         ICANN.
>     >>
>     >>                         > 2. ICANN does not have to leave the
>     US but
>     >> must be located in
>     >>             a place
>     >>                         where the governing law has
>     >>                         certain characteristics, including not
>     having
>     >> the possibiliity
>     >>             that courts
>     >>                         overrule ICANN (or at
>     >>                         least the IRP).
>     >>                         >
>     >>                         > (And, as it happens, the US is not such a
>     >> place....)
>     >>                         >
>     >>
>     >>                         Not only avoiding courts overruling
>     relevant
>     >> outcomes of the
>     >>             Internet global
>     >>                         community processes,
>     >>                         but also examining and resolving the
>     possible
>     >>             interferences/conflicts that
>     >>                         might arise for
>     >>                         government representatives being
>     subject to a
>     >> foreign country
>     >>             law simply in
>     >>                         the process of attending
>     >>                         to their regular duties (if they were to be
>     >> fully engaged with
>     >>             ICANN).
>     >>
>     >>                         Quote:
>     >>
>     >>
>     >> "From the Brazilian perspective the existing structure clearly
>     imposes limits to the participation
>     >>
>     >>
>     >>      ???of governmental representatives, as it is unlikely that
>     a representative of a foreign government
>     >>              w
>     >>                   i
>     >> ll be authorized (by its own government) to formally accept a
>     position in a body pertaining to a U.
>     >>
>     >>
>     >>
>     >>                         S. corporation."
>     >>
>     >>                         This may be what you're getting at with
>     your
>     >> point 3 below, but
>     >>             I'm not sure
>     >>                         whether the problem is
>     >>                         only the fact that governments have to deal
>     >> with a corporate
>     >>             form/law or
>     >>                         whether it is altogether
>     >>                         the fact that it is a single country law
>     >> without any form of
>     >>             deliberate
>     >>                         endorsement by the other
>     >>                         governments (who also have law making power
>     >> in their respective
>     >>             country just
>     >>                         as the US government).
>     >>
>     >>                         Assuming your reading is correct, and if
>     >> necessary complemented
>     >>             by my
>     >>                         remarks above, I'd be
>     >>                         interested in hearing from you about any
>     >> issues you may see with
>     >>             the BR gov
>     >>                         comments.
>     >>                         Thanks,
>     >>
>     >>                         Mawaki
>     >>
>     >>                         >
>     >>                         > 3. ICANN doesn't have to change its form,
>     >> but it needs a form
>     >>             where
>     >>                         governments are comfortable.
>     >>                         >
>     >>                         > (And, as it happens, the corporate
>     form is
>     >> not such a
>     >>             form....)
>     >>                         >
>     >>                         >
>     >>                         > What am I missing?
>     >>                         >
>     >>                         >
>     >>                         >
>     >>                         > On Sat, 6 Jun 2015, Carlos A. Afonso
>     wrote:
>     >>                         >
>     >>                         >> For the ones who are following the IANA
>     >> transition process:
>     >>             attached
>     >>                         >> please find the comments posted by the
>     >> government of Brazil
>     >>             on June 03,
>     >>                         >> 2015, in response to the call for public
>     >> comments on the
>     >>                         >> CCWG-Accountability Initial Draft
>     Proposal.
>     >>                         >>
>     >>                         >> I generally agree with the comments.
>     >>                         >>
>     >>                         >> fraternal regards
>     >>                         >>
>     >>                         >> --c.a.
>     >>                         >>
>     >>                         >
>     >>                         > --
>     >>                         > A. Michael Froomkin, http://law.tm
>     >>                         > Laurie Silvers & Mitchell Rubenstein
>     >> Distinguished Professor
>     >>             of Law
>     >>                         > Editor, Jotwell: The Journal of Things We
>     >> Like (Lots),
>     >> jotwell.com <http://jotwell.com>
>     >>                         > Program Chair, We Robot 2016 | +1 (305)
>     >> 284-4285 |
>     >> froomkin at law.tm <mailto:froomkin at law.tm>
>     >>                         > U. Miami School of Law, P.O. Box 248087,
>     >> Coral Gables, FL
>     >>             33124 USA
>     >>                         >  -->It's warm here.<--
>     >>                         >
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From froomkin at law.miami.edu  Wed Jun 10 10:36:22 2015
From: froomkin at law.miami.edu (Michael Froomkin - U.Miami School of Law)
Date: Wed, 10 Jun 2015 10:36:22 -0400
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <CAOz-jXSR0tQFx8RV4Rtw_O=RbsHSNnRwQbZCsYA-9QTXBV-cnQ@mail.gmail.com>
References: <557378D2.6030503@cafonso.ca> <alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu> <CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com> <alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu> <5576ED01.9010606@itforchange.net>
 <alpine.LRH.2.00.1506090955160.12194@post.law.miami.edu> <55770298.20609@itforchange.net> <alpine.LRH.2.00.1506091131280.12194@post.law.miami.edu> <557802CE.4080505@itforchange.net> <CAOz-jXSR0tQFx8RV4Rtw_O=RbsHSNnRwQbZCsYA-9QTXBV-cnQ@mail.gmail.com>
Message-ID: <alpine.LRH.2.00.1506101025020.8188@post.law.miami.edu>

On Wed, 10 Jun 2015, Chris Prince Udochukwu Njoku wrote:

> 
> Parminder is emphasizing a true point. An organization which represents the
> interests of many nations, though located in one nation (as it must be) must
> not be subjected to laws that ought to be (and are) for national

It is, I think, possible to act as a trustee of international interests 
while still having accountability rooted in national law.  It may not be 
possible to accommodate the desires of governments to, in effect, serve 
directly on the governing body given the view of e.g. the Brazilian 
government that this is unacceptable subordination to another state, but 
some may see that as a feature rather than a bug.


> organizations. This should be the definition of international jurisdiction
> here. If the host nation's laws don't actually accommodate the multinational
> stakeholding nature of the organization, it's a ripe clue to the need for
> relocation to a place that is more friendly to the organization's
> operations.
>

The above contains a term that (to a lawyer) has multiple possible 
meanings.  The traditional way to " accommodate the multinational ... 
nature" of an organization is to incorporate it in Switzerland, and have 
no effective supervision.  FIFA.  IOC.  No thanks.

So I would ask, what is the threat model here?  What is a (mildly 
realistic) example of a scenario in which one fears the entity will do 
something legitimate and a national court (of the US, Canada, the nation 
of your choice) would have an appreciable chance of blocking it?  I would 
note, for example, that the only time I can think of that a US court 
overruled ICANN was when it froze out one of its own directors because the 
staff disagreed with his views.  That violated California law empowering 
directors not to mention any sense of natural justice.  The result was not 
only just, it was necessary.  And it is Exhibit A as to why we cannot 
simply trust in ICANN, or New New Co's, good faith.

In other words, I submit that national court supervision in an appropriate 
and democratic jurisdiction is far, far more likely to produce good 
outcomes than bad ones, while the removal of this valuable check is almost 
certain to lead to difficulties.  What is more, those difficulties will 
not be prevented by having the body be "international" for any currently 
known meaning of the term.

Contrary to other messages in this thread, I do not believe that there is 
much in the way of effective monitoring of many multi-national treaty 
bodies other than by action of the member states.  No one else has much 
real leverage over WIPO, GATT, you name it.  NGOs have some moral and 
intellectual suasion, but some of their clout also comes from the fact 
that it influences or might influence the members.

I prefer to attempt to engineer a much surer means of dealing with major 
and substantially foreseeable problems.

> On Jun 10, 2015 11:27 AM, "parminder" <parminder at itforchange.net> wrote:
> 
>
>       On Tuesday 09 June 2015 09:09 PM, Michael Froomkin - U.Miami
>       School of
>       Law wrote:
>       > On Tue, 9 Jun 2015, parminder wrote:
>       >
>       >> Are you saying that it is not possible for ICANN to undertake
>       the
>       >> functions that it needs to
>       >> undertake while being an international institution
>       incorporated under
>       >> international law, and free
>       >> from any countries jurisdiction in terms of its basic
>       governance
>       >> functions? I just want to be clear.
>       >
>       > I don't know what an "an international institution
>       incorporated under
>       > international law" is except bodies like FIFA (under Swiss
>       law), or UN
>       > bodies, or sui generis treaty bodies.  It is certainly
>       *possible* for
>       > ICANN to have any of those statuses and to "function"; as far
>       as I can
>       > tell, however, it's just not possible to build in meaningful
>       > accountability in those structures.
>
>       There are of course problems and issues everywhere, but it can
>       hardly be
>       said that UN and/or treaty bodies work without meaningful
>       accountability. Further, any new international treaty/ law
>       establishing
>       a new body - an really international ICANN for instance - can
>       write all
>       the accountability method it or we want to have written in it.
>       >
>       > There is no general international law of incorporation of
>       which I am
>       > aware.  Corporate (formation) law is all national law.  That
>       is the
>       > reality that must be confronted.  There is no place I can go
>       to get an
>       > international corporate charter, and good thing too - why
>       should I be
>       > able to exempt myself from national law?
>
>       This hits a fundamental issue - I see ICANN, in its ideal form,
>       as a
>       governance body, since it does governance functions, and not as
>       a
>       private corporation. So we need a new international treaty
>       sanctifying
>       ICANN as a global governance body - with its basic forms largely
>       unchanged, with new accountability means (including judicial
>       accountability) and not ways to be able incorporate a private
>       kind of an
>       entity outside national laws, which is admittedly both very
>       difficult,
>       and rather undesirable.
>
>       parminder
>
>       >
>       >>
>       >> If so, that would be an interesting assertion. Now, I am sure
>       this is
>       >> not true. However, I am not an
>       >> international legal expert and not able to right now build
>       and
>       >> present the whole scenario for you on
>       >> how it can be done. I am sure there are a number of
>       international
>       >> organisations that do different
>       >> kind of complex activities and have found ways to do it under
>       >> international law and jurisdiction.
>       >
>       > But those are in the main treaty bodies.
>       >
>       >> And if some new directions and evolutions are needed that can
>       also be
>       >> worked out (please see my last
>       >> email on this count).
>       >>
>       >
>       > Here we just disagree. I see the task as monsterously hard,
>       the work
>       > of a decade or more.
>       >
>       >> BTW it is a sad statement on the geo political economy of
>       knowledge
>       >> production in this area that
>       >> there is not one full fledged scenario developed by anyone on
>       how
>       >> ICANN can undertakes its
>       >> activities under international law/ jurisdiction - which I am
>       pretty
>       >> sure it can. Many parties,
>       >> including governments have called for it, and yes I agree
>       someone
>       >> should come up with a full
>       >> politico-legal and institutional description of how it can
>       and should
>       >> be done - with all the details
>       >> in place. And that is the sad part of it, of how things stand
>       at the
>       >> global level, had now lopsided
>       >> is resource distribution, all kinds of resources.
>       >>
>       >
>       > Alas.
>       >
>       >> Not to shy away from responsibility - I am happy to
>       collaborate with
>       >> anyone if someone can out time
>       >> into it.
>       >>
>       >> And no, it cannot be solved by any other country
>       jurisdiction. Apart
>       >> from it being still being wrong
>       >> in principle, how would US accept that another jurisdiction
>       is better
>       >> than its own and accede to
>       >> such a change. Accepting the patently justified fact that an
>       >> international infrastructure should be
>       >> governed internationally, on the other hand, is much easier .
>       >>
>       >
>       > I would not dismiss this so quickly.  I take a substantial
>       fraction of
>       > the opposition to US residual control (for that is all we are
>       talking
>       > about) to be tied to the US's status as defacto hegemon. 
>       Moving ICANN
>       > to another state with a strong human rights record would
>       answer that
>       > part of the critique.
>       >
>       > In my view, a bespoke international structure is actually much
>       harder
>       > -- it would need to be invented almost from scratch.  And it
>       is bound
>       > to be flawed; national rules are the result of at least
>       decades if not
>       > more of trial and error.
>       >
>       >> parminder
>       >>
>       >> On Tuesday 09 June 2015 07:31 PM, Michael Froomkin - U.Miami
>       School
>       >> of Law wrote:
>       >>       I don't know what it means to say that ICANN should be
>       subject
>       >> to "international
>       >>       jurisdiction and law".  For the relevant issues, that
>       sounds
>       >> like a pretty empty set.
>       >>
>       >>       As regards most of the sort of things one might expect
>       to worry
>       >> about - e.g. fidelity to
>       >>       articles of incorporation - international law is
>       basically
>       >> silent.  And there is no
>       >>       relevant jurisdiction either.  So I remain stuck in the
>       >> position that there must be a
>       >>       state anchor whose courts are given the job.  It does
>       not of
>       >> course need to be the US,
>       >>       although I would note that the US courts are by
>       international
>       >> standards not shy and
>       >>       actually fairly good at this sort of thing.
>       >>
>       >>       I do think, however, that it should NOT be Switzerland,
>       as its
>       >> courts are historically
>       >>       over-deferential to international bodies - perhaps as
>       part of
>       >> state policy to be an
>       >>       attractive location for those high-spending
>       international
>       >> meetings.
>       >>
>       >>       I'd be real happy with Canada, though.
>       >>
>       >>       On Tue, 9 Jun 2015, parminder wrote:
>       >>
>       >>
>       >>
>       >>             On Tuesday 09 June 2015 06:26 PM, Michael
>       Froomkin -
>       >> U.Miami School of Law
>       >>             wrote:
>       >>
>       >>                   I think that bodies which do not need to
>       fear
>       >> supervision by
>       >>             legitimate courts end up
>       >>                   like FIFA. FIFA had a legal status in
>       Switzerland
>       >> that basically
>       >>             insulated it the way
>       >>                   that the Brazilian document seems to
>       suggest would
>       >> be what they want
>       >>             for ICANN.  (It's
>       >>                   also the legal status ICANN has at times
>       suggested
>       >> it would like.)
>       >>
>       >>                   The lesson of history seems unusually clear
>       here.
>       >>
>       >>
>       >>             Agree that ICANN cannot be left jurisdictionally
>       >> un-supervised - that may be
>       >>             even more dangerous
>       >>             than the present situation. However, the right
>       >> supervision or oversight is
>       >>             of international
>       >>             jurisdiction and law, not that of the US . This
>       is what
>       >> Brazil has to make
>       >>             upfront as the
>       >>             implication of what it is really seeking, and its
>       shyness
>       >> and reticence to
>       >>             say so is what I noted as
>       >>             surprising in an earlier email in this thread.
>       Not
>       >> putting out clearly what
>       >>             exactly it wants would
>       >>             lead to misconceptions about its position, which
>       IMHO can
>       >> be seen from how
>       >>             Michael reads it.  I am
>       >>             sure this is not how Brazil meant it - to free
>       ICANN from
>       >> all kinds of
>       >>             jurisdictional oversight
>       >>             whatsoever - but then Brazil needs to say clearly
>       what is
>       >> it that it wants,
>       >>             and how can it can
>       >>             obtained. Brazil, please come out of your
>       NetMundial
>       >> hangover and take
>       >>             political responsibility for
>       >>             what you say and seek!
>       >>
>       >>             parminder
>       >>
>       >>
>       >>
>       >>                   On Tue, 9 Jun 2015, Mawaki Chango wrote:
>       >>
>       >>
>       >>                         It's good to see a law scholar
>       involved in
>       >> this discussion. I'll
>       >>             leave it to
>       >>                         the Brazilian party to
>       >>                         ultimate tell whether your reading is
>       correct
>       >> or not. In the
>       >>             meantime I'd
>       >>                         volunteer the following
>       >>                         comments.
>       >>
>       >>                         On Jun 8, 2015 10:46 PM, "Michael
>       Froomkin -
>       >> U.Miami School of
>       >>             Law"
>       >>                         <froomkin at law.miami.edu> wrote:
>       >>                         >
>       >>                         > Perhaps I'm misreading something,
>       but I
>       >> read this document to
>       >>             make the
>       >>                         following assertions:
>       >>                         >
>       >>                         > 1. All restrictions on ICANN's
>       location
>       >> must be removed.
>       >>                         >
>       >>
>       >>                         And the question reopened for
>       deliberation by
>       >> all stakeholders,
>       >>             including
>       >>                         governments among others.
>       >>                         Only the outcome of such deliberation
>       will be
>       >> fully legitimate
>       >>             within the
>       >>                         framework of the post-2015
>       >>                         ICANN.
>       >>
>       >>                         > 2. ICANN does not have to leave the
>       US but
>       >> must be located in
>       >>             a place
>       >>                         where the governing law has
>       >>                         certain characteristics, including
>       not having
>       >> the possibiliity
>       >>             that courts
>       >>                         overrule ICANN (or at
>       >>                         least the IRP).
>       >>                         >
>       >>                         > (And, as it happens, the US is not
>       such a
>       >> place....)
>       >>                         >
>       >>
>       >>                         Not only avoiding courts overruling
>       relevant
>       >> outcomes of the
>       >>             Internet global
>       >>                         community processes,
>       >>                         but also examining and resolving the
>       possible
>       >>             interferences/conflicts that
>       >>                         might arise for
>       >>                         government representatives being
>       subject to a
>       >> foreign country
>       >>             law simply in
>       >>                         the process of attending
>       >>                         to their regular duties (if they were
>       to be
>       >> fully engaged with
>       >>             ICANN).
>       >>
>       >>                         Quote:
>       >>
>       >>
>       >> "From the Brazilian perspective the existing structure
>       clearly imposes limits to the participation
>       >>
>       >>
>       >>      ???of governmental representatives, as it is unlikely
>       that a representative of a foreign government
>       >>              w
>       >>                   i
>       >> ll be authorized (by its own government) to formally accept a
>       position in a body pertaining to a U.
>       >>
>       >>
>       >>
>       >>                         S. corporation."
>       >>
>       >>                         This may be what you're getting at
>       with your
>       >> point 3 below, but
>       >>             I'm not sure
>       >>                         whether the problem is
>       >>                         only the fact that governments have
>       to deal
>       >> with a corporate
>       >>             form/law or
>       >>                         whether it is altogether
>       >>                         the fact that it is a single country
>       law
>       >> without any form of
>       >>             deliberate
>       >>                         endorsement by the other
>       >>                         governments (who also have law making
>       power
>       >> in their respective
>       >>             country just
>       >>                         as the US government).
>       >>
>       >>                         Assuming your reading is correct, and
>       if
>       >> necessary complemented
>       >>             by my
>       >>                         remarks above, I'd be
>       >>                         interested in hearing from you about
>       any
>       >> issues you may see with
>       >>             the BR gov
>       >>                         comments.
>       >>                         Thanks,
>       >>
>       >>                         Mawaki
>       >>
>       >>                         >
>       >>                         > 3. ICANN doesn't have to change its
>       form,
>       >> but it needs a form
>       >>             where
>       >>                         governments are comfortable.
>       >>                         >
>       >>                         > (And, as it happens, the corporate
>       form is
>       >> not such a
>       >>             form....)
>       >>                         >
>       >>                         >
>       >>                         > What am I missing?
>       >>                         >
>       >>                         >
>       >>                         >
>       >>                         > On Sat, 6 Jun 2015, Carlos A.
>       Afonso wrote:
>       >>                         >
>       >>                         >> For the ones who are following the
>       IANA
>       >> transition process:
>       >>             attached
>       >>                         >> please find the comments posted by
>       the
>       >> government of Brazil
>       >>             on June 03,
>       >>                         >> 2015, in response to the call for
>       public
>       >> comments on the
>       >>                         >> CCWG-Accountability Initial Draft
>       Proposal.
>       >>                         >>
>       >>                         >> I generally agree with the
>       comments.
>       >>                         >>
>       >>                         >> fraternal regards
>       >>                         >>
>       >>                         >> --c.a.
>       >>                         >>
>       >>                         >
>       >>                         > --
>       >>                         > A. Michael Froomkin, http://law.tm
>       >>                         > Laurie Silvers & Mitchell
>       Rubenstein
>       >> Distinguished Professor
>       >>             of Law
>       >>                         > Editor, Jotwell: The Journal of
>       Things We
>       >> Like (Lots),
>       >>             jotwell.com
>       >>                         > Program Chair, We Robot 2016 | +1
>       (305)
>       >> 284-4285 |
>       >>             froomkin at law.tm
>       >>                         > U. Miami School of Law, P.O. Box
>       248087,
>       >> Coral Gables, FL
>       >>             33124 USA
>       >>                         >                         -->It's
>       warm here.<--
>       >>                         >
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-- 
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Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
                         -->It's warm here.<--
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From froomkin at law.miami.edu  Wed Jun 10 10:49:19 2015
From: froomkin at law.miami.edu (Michael Froomkin - U.Miami School of Law)
Date: Wed, 10 Jun 2015 10:49:19 -0400
Subject: [governance] Parallels Between Our Oceans and Internet
 Governance #LawOfTheSea #InternetGovernance #Oceans #WorldOceansDay
 #GlobalSubmarineCables
In-Reply-To: <CAJwbTiBGvA6wVr-6UUsWLN6JnD_Wm68R5urbPkS7GoqSoLMVPg@mail.gmail.com>
References: <CAJwbTiBGvA6wVr-6UUsWLN6JnD_Wm68R5urbPkS7GoqSoLMVPg@mail.gmail.com>
Message-ID: <alpine.LRH.2.00.1506101047020.8188@post.law.miami.edu>


You might be amused by my essay "What the Law of the Sea Teaches Us About 
the Regulation of the Information Ocean"
http://www.discourse.net/2007/02/what_the_law_of_the_sea_teaches_us_about_the_regulation_of_the_information_ocean/


On Tue, 9 Jun 2015, Salanieta T. Tamanikaiwaimaro wrote:

> Dear All,
> 
> Yesterday was June 8 in most parts of the Pacific and globally we celebrate
> World Oceans Day. The Pacific Commissioner for Oceans, Dame Meg Taylor has
> also issued an invitation for those willing to join the coastal cleanup is
> open to all interested community members, from 8-10am Thursday 11 June, near
> the FIRCA building, Nasese, Suva, Fiji. To register please email
> opoc at forumsec.org.
> 
> Since it is still June 8 in the Northern Hemisphere, I thought I would share
> with you a little piece I wrote about the parallels of the Oceans and
> Internet Governance and you can read the Article here:http://www.circleid.com/posts/20150608_parallels_between_our_oceans_and_int
> ernet_governance_worldoceanday/
> Feel free to share the article or send me your thoughts.
> 
> Kind Regards,
> Sala
> 
> P.S The views expressed in the article are solely mine and do not reflect
> the views of any of my affiliations.
> 
>

-- 
A. Michael Froomkin, http://law.tm
Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
                         -->It's warm here.<--
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From pimienta at funredes.org  Wed Jun 10 11:06:07 2015
From: pimienta at funredes.org (Daniel Pimienta)
Date: Wed, 10 Jun 2015 11:06:07 -0400
Subject: [governance] Parallels Between Our Oceans and Internet
  Governance #LawOfTheSea #InternetGovernance #Oceans #WorldOceansDay
  #GlobalSubmarineCables
In-Reply-To: <alpine.LRH.2.00.1506101047020.8188@post.law.miami.edu>
References: <CAJwbTiBGvA6wVr-6UUsWLN6JnD_Wm68R5urbPkS7GoqSoLMVPg@mail.gmail.com>
 <alpine.LRH.2.00.1506101047020.8188@post.law.miami.edu>
Message-ID: <E1Z2hXW-0000Tp-Ay@igcaucus.org>

At 10:49 10/06/2015, you wrote:
>You might be amused by my essay "What the Law of the Sea Teaches Us 
>About the Regulation of the Information Ocean"

Provocating, amusing but also frightnening sense making analogy...

The temptation is strong to extend the analogy to the limits and say 
that the last decenny evolution of the Internet as an information 
ocean is the one from artesanal fisheries (with little harm to marine 
life) to industrial  fisheries (a terrible disaster for marine life 
e.g. our personal information) .... and big data fisheries (deep sea) 
a fatal situation for many species (e.g. a killer for our privacy).



-- 
This message has been scanned for viruses and
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From froomkin at law.miami.edu  Wed Jun 10 11:26:11 2015
From: froomkin at law.miami.edu (Michael Froomkin - U.Miami School of Law)
Date: Wed, 10 Jun 2015 11:26:11 -0400
Subject: [governance] Parallels Between Our Oceans and Internet
  Governance #LawOfTheSea #InternetGovernance #Oceans #WorldOceansDay
  #GlobalSubmarineCables
In-Reply-To: <E1Z2hXO-0000Qn-LC@igcaucus.org>
References: <CAJwbTiBGvA6wVr-6UUsWLN6JnD_Wm68R5urbPkS7GoqSoLMVPg@mail.gmail.com> <alpine.LRH.2.00.1506101047020.8188@post.law.miami.edu> <E1Z2hXO-0000Qn-LC@igcaucus.org>
Message-ID: <alpine.LRH.2.00.1506101125590.8853@post.law.miami.edu>

Yes, I've wondered about writing a sequel....

On Wed, 10 Jun 2015, Daniel Pimienta wrote:

> At 10:49 10/06/2015, you wrote:
>> You might be amused by my essay "What the Law of the Sea Teaches Us About 
>> the Regulation of the Information Ocean"
>
> Provocating, amusing but also frightnening sense making analogy...
>
> The temptation is strong to extend the analogy to the limits and say that the 
> last decenny evolution of the Internet as an information ocean is the one 
> from artesanal fisheries (with little harm to marine life) to industrial 
> fisheries (a terrible disaster for marine life e.g. our personal information) 
> .... and big data fisheries (deep sea) a fatal situation for many species 
> (e.g. a killer for our privacy).
>
>
>
>

-- 
A. Michael Froomkin, http://law.tm
Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
                         -->It's warm here.<--
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From seth.p.johnson at gmail.com  Wed Jun 10 11:56:33 2015
From: seth.p.johnson at gmail.com (Seth Johnson)
Date: Wed, 10 Jun 2015 11:56:33 -0400
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <alpine.LRH.2.00.1506101025020.8188@post.law.miami.edu>
References: <557378D2.6030503@cafonso.ca> <alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu>
 <CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com>
 <alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu> <5576ED01.9010606@itforchange.net>
 <alpine.LRH.2.00.1506090955160.12194@post.law.miami.edu> <55770298.20609@itforchange.net>
 <alpine.LRH.2.00.1506091131280.12194@post.law.miami.edu> <557802CE.4080505@itforchange.net>
 <CAOz-jXSR0tQFx8RV4Rtw_O=RbsHSNnRwQbZCsYA-9QTXBV-cnQ@mail.gmail.com> <alpine.LRH.2.00.1506101025020.8188@post.law.miami.edu>
Message-ID: <CAJkfFByPDZj=6erciGUHiyAtCqSCSrpB1HQUCdGfm3QuMM2iTA@mail.gmail.com>

I believe the most important focus is on the question of how to
install effective fundamental liberties limits in the context of an
international political forum.  That's how you can hope to maintain
the type of stewardship context we want associated with a medium of
communication.  The presence of recourse of that sort -- related to
being based in a national context -- is one of the main reasons why
ICANN has not gone further off the rails.  Same as for government in
general in such a national context: we don't get the government
meddling specifically because the relationship to the national context
(via the bare presence of NTIA) means the people (at least of the US)
have recourse against it if it does.

Keep in mind that one of the chief reasons why Obama (and his
predecessor) have gone off the rails with surveillance and other
fundamental rights violations is because they have the notion that the
international arena provides means to act that way without the
recourse we have against it domestically.  There's still the problem
of laundering the surveillance by having private corporations (whether
telco or app) do it on the government's behalf.  But we see an effort
at long last to try to "legitimize" what they're doing that way at
least (more apparent effort to not violate citizens in the domestic
sphere), because we finally got standing in the courts, and
documentation that was taken seriously via Snowden.  Still just
domestic, so that doesn't answer general concerns, but this should
highlight the nature of the problem.  You don't actually have
fundamental rights in the international arena, no matter how many
human rights treaties you pass.  That's not what secures rights
against acts of governments.

Note that this is stuff the UN has been utterly clueless about for
years and years and years, along with many followers-on.  And I think
in general the parties who have been acting in the international arena
like it that way.  We, the people(s), are really the ones to bring it
into the discourse in a real way, now that we are here in proceedings
that deign to appear to engage us substantively in international
policy.


Seth

On Wed, Jun 10, 2015 at 10:36 AM, Michael Froomkin - U.Miami School of
Law <froomkin at law.miami.edu> wrote:
> On Wed, 10 Jun 2015, Chris Prince Udochukwu Njoku wrote:
>
>>
>> Parminder is emphasizing a true point. An organization which represents
>> the
>> interests of many nations, though located in one nation (as it must be)
>> must
>> not be subjected to laws that ought to be (and are) for national
>
>
> It is, I think, possible to act as a trustee of international interests
> while still having accountability rooted in national law.  It may not be
> possible to accommodate the desires of governments to, in effect, serve
> directly on the governing body given the view of e.g. the Brazilian
> government that this is unacceptable subordination to another state, but
> some may see that as a feature rather than a bug.
>
>
>> organizations. This should be the definition of international jurisdiction
>> here. If the host nation's laws don't actually accommodate the
>> multinational
>> stakeholding nature of the organization, it's a ripe clue to the need for
>> relocation to a place that is more friendly to the organization's
>> operations.
>>
>
> The above contains a term that (to a lawyer) has multiple possible meanings.
> The traditional way to " accommodate the multinational ... nature" of an
> organization is to incorporate it in Switzerland, and have no effective
> supervision.  FIFA.  IOC.  No thanks.
>
> So I would ask, what is the threat model here?  What is a (mildly realistic)
> example of a scenario in which one fears the entity will do something
> legitimate and a national court (of the US, Canada, the nation of your
> choice) would have an appreciable chance of blocking it?  I would note, for
> example, that the only time I can think of that a US court overruled ICANN
> was when it froze out one of its own directors because the staff disagreed
> with his views.  That violated California law empowering directors not to
> mention any sense of natural justice.  The result was not only just, it was
> necessary.  And it is Exhibit A as to why we cannot simply trust in ICANN,
> or New New Co's, good faith.
>
> In other words, I submit that national court supervision in an appropriate
> and democratic jurisdiction is far, far more likely to produce good outcomes
> than bad ones, while the removal of this valuable check is almost certain to
> lead to difficulties.  What is more, those difficulties will not be
> prevented by having the body be "international" for any currently known
> meaning of the term.
>
> Contrary to other messages in this thread, I do not believe that there is
> much in the way of effective monitoring of many multi-national treaty bodies
> other than by action of the member states.  No one else has much real
> leverage over WIPO, GATT, you name it.  NGOs have some moral and
> intellectual suasion, but some of their clout also comes from the fact that
> it influences or might influence the members.
>
> I prefer to attempt to engineer a much surer means of dealing with major and
> substantially foreseeable problems.
>
>
>> On Jun 10, 2015 11:27 AM, "parminder" <parminder at itforchange.net> wrote:
>>
>>
>>       On Tuesday 09 June 2015 09:09 PM, Michael Froomkin - U.Miami
>>       School of
>>       Law wrote:
>>       > On Tue, 9 Jun 2015, parminder wrote:
>>       >
>>       >> Are you saying that it is not possible for ICANN to undertake
>>       the
>>       >> functions that it needs to
>>       >> undertake while being an international institution
>>       incorporated under
>>       >> international law, and free
>>       >> from any countries jurisdiction in terms of its basic
>>       governance
>>       >> functions? I just want to be clear.
>>       >
>>       > I don't know what an "an international institution
>>       incorporated under
>>       > international law" is except bodies like FIFA (under Swiss
>>       law), or UN
>>       > bodies, or sui generis treaty bodies.  It is certainly
>>       *possible* for
>>       > ICANN to have any of those statuses and to "function"; as far
>>       as I can
>>       > tell, however, it's just not possible to build in meaningful
>>       > accountability in those structures.
>>
>>       There are of course problems and issues everywhere, but it can
>>       hardly be
>>       said that UN and/or treaty bodies work without meaningful
>>       accountability. Further, any new international treaty/ law
>>       establishing
>>       a new body - an really international ICANN for instance - can
>>       write all
>>       the accountability method it or we want to have written in it.
>>       >
>>       > There is no general international law of incorporation of
>>       which I am
>>       > aware.  Corporate (formation) law is all national law.  That
>>       is the
>>       > reality that must be confronted.  There is no place I can go
>>       to get an
>>       > international corporate charter, and good thing too - why
>>       should I be
>>       > able to exempt myself from national law?
>>
>>       This hits a fundamental issue - I see ICANN, in its ideal form,
>>       as a
>>       governance body, since it does governance functions, and not as
>>       a
>>       private corporation. So we need a new international treaty
>>       sanctifying
>>       ICANN as a global governance body - with its basic forms largely
>>       unchanged, with new accountability means (including judicial
>>       accountability) and not ways to be able incorporate a private
>>       kind of an
>>       entity outside national laws, which is admittedly both very
>>       difficult,
>>       and rather undesirable.
>>
>>       parminder
>>
>>       >
>>       >>
>>       >> If so, that would be an interesting assertion. Now, I am sure
>>       this is
>>       >> not true. However, I am not an
>>       >> international legal expert and not able to right now build
>>       and
>>       >> present the whole scenario for you on
>>       >> how it can be done. I am sure there are a number of
>>       international
>>       >> organisations that do different
>>       >> kind of complex activities and have found ways to do it under
>>       >> international law and jurisdiction.
>>       >
>>       > But those are in the main treaty bodies.
>>       >
>>       >> And if some new directions and evolutions are needed that can
>>       also be
>>       >> worked out (please see my last
>>       >> email on this count).
>>       >>
>>       >
>>       > Here we just disagree. I see the task as monsterously hard,
>>       the work
>>       > of a decade or more.
>>       >
>>       >> BTW it is a sad statement on the geo political economy of
>>       knowledge
>>       >> production in this area that
>>       >> there is not one full fledged scenario developed by anyone on
>>       how
>>       >> ICANN can undertakes its
>>       >> activities under international law/ jurisdiction - which I am
>>       pretty
>>       >> sure it can. Many parties,
>>       >> including governments have called for it, and yes I agree
>>       someone
>>       >> should come up with a full
>>       >> politico-legal and institutional description of how it can
>>       and should
>>       >> be done - with all the details
>>       >> in place. And that is the sad part of it, of how things stand
>>       at the
>>       >> global level, had now lopsided
>>       >> is resource distribution, all kinds of resources.
>>       >>
>>       >
>>       > Alas.
>>       >
>>       >> Not to shy away from responsibility - I am happy to
>>       collaborate with
>>       >> anyone if someone can out time
>>       >> into it.
>>       >>
>>       >> And no, it cannot be solved by any other country
>>       jurisdiction. Apart
>>       >> from it being still being wrong
>>       >> in principle, how would US accept that another jurisdiction
>>       is better
>>       >> than its own and accede to
>>       >> such a change. Accepting the patently justified fact that an
>>       >> international infrastructure should be
>>       >> governed internationally, on the other hand, is much easier .
>>       >>
>>       >
>>       > I would not dismiss this so quickly.  I take a substantial
>>       fraction of
>>       > the opposition to US residual control (for that is all we are
>>       talking
>>       > about) to be tied to the US's status as defacto hegemon.
>>       Moving ICANN
>>       > to another state with a strong human rights record would
>>       answer that
>>       > part of the critique.
>>       >
>>       > In my view, a bespoke international structure is actually much
>>       harder
>>       > -- it would need to be invented almost from scratch.  And it
>>       is bound
>>       > to be flawed; national rules are the result of at least
>>       decades if not
>>       > more of trial and error.
>>       >
>>       >> parminder
>>       >>
>>       >> On Tuesday 09 June 2015 07:31 PM, Michael Froomkin - U.Miami
>>       School
>>       >> of Law wrote:
>>       >>       I don't know what it means to say that ICANN should be
>>       subject
>>       >> to "international
>>       >>       jurisdiction and law".  For the relevant issues, that
>>       sounds
>>       >> like a pretty empty set.
>>       >>
>>       >>       As regards most of the sort of things one might expect
>>       to worry
>>       >> about - e.g. fidelity to
>>       >>       articles of incorporation - international law is
>>       basically
>>       >> silent.  And there is no
>>       >>       relevant jurisdiction either.  So I remain stuck in the
>>       >> position that there must be a
>>       >>       state anchor whose courts are given the job.  It does
>>       not of
>>       >> course need to be the US,
>>       >>       although I would note that the US courts are by
>>       international
>>       >> standards not shy and
>>       >>       actually fairly good at this sort of thing.
>>       >>
>>       >>       I do think, however, that it should NOT be Switzerland,
>>       as its
>>       >> courts are historically
>>       >>       over-deferential to international bodies - perhaps as
>>       part of
>>       >> state policy to be an
>>       >>       attractive location for those high-spending
>>       international
>>       >> meetings.
>>       >>
>>       >>       I'd be real happy with Canada, though.
>>       >>
>>       >>       On Tue, 9 Jun 2015, parminder wrote:
>>       >>
>>       >>
>>       >>
>>       >>             On Tuesday 09 June 2015 06:26 PM, Michael
>>       Froomkin -
>>       >> U.Miami School of Law
>>       >>             wrote:
>>       >>
>>       >>                   I think that bodies which do not need to
>>       fear
>>       >> supervision by
>>       >>             legitimate courts end up
>>       >>                   like FIFA. FIFA had a legal status in
>>       Switzerland
>>       >> that basically
>>       >>             insulated it the way
>>       >>                   that the Brazilian document seems to
>>       suggest would
>>       >> be what they want
>>       >>             for ICANN.  (It's
>>       >>                   also the legal status ICANN has at times
>>       suggested
>>       >> it would like.)
>>       >>
>>       >>                   The lesson of history seems unusually clear
>>       here.
>>       >>
>>       >>
>>       >>             Agree that ICANN cannot be left jurisdictionally
>>       >> un-supervised - that may be
>>       >>             even more dangerous
>>       >>             than the present situation. However, the right
>>       >> supervision or oversight is
>>       >>             of international
>>       >>             jurisdiction and law, not that of the US . This
>>       is what
>>       >> Brazil has to make
>>       >>             upfront as the
>>       >>             implication of what it is really seeking, and its
>>       shyness
>>       >> and reticence to
>>       >>             say so is what I noted as
>>       >>             surprising in an earlier email in this thread.
>>       Not
>>       >> putting out clearly what
>>       >>             exactly it wants would
>>       >>             lead to misconceptions about its position, which
>>       IMHO can
>>       >> be seen from how
>>       >>             Michael reads it.  I am
>>       >>             sure this is not how Brazil meant it - to free
>>       ICANN from
>>       >> all kinds of
>>       >>             jurisdictional oversight
>>       >>             whatsoever - but then Brazil needs to say clearly
>>       what is
>>       >> it that it wants,
>>       >>             and how can it can
>>       >>             obtained. Brazil, please come out of your
>>       NetMundial
>>       >> hangover and take
>>       >>             political responsibility for
>>       >>             what you say and seek!
>>       >>
>>       >>             parminder
>>       >>
>>       >>
>>       >>
>>       >>                   On Tue, 9 Jun 2015, Mawaki Chango wrote:
>>       >>
>>       >>
>>       >>                         It's good to see a law scholar
>>       involved in
>>       >> this discussion. I'll
>>       >>             leave it to
>>       >>                         the Brazilian party to
>>       >>                         ultimate tell whether your reading is
>>       correct
>>       >> or not. In the
>>       >>             meantime I'd
>>       >>                         volunteer the following
>>       >>                         comments.
>>       >>
>>       >>                         On Jun 8, 2015 10:46 PM, "Michael
>>       Froomkin -
>>       >> U.Miami School of
>>       >>             Law"
>>       >>                         <froomkin at law.miami.edu> wrote:
>>       >>                         >
>>       >>                         > Perhaps I'm misreading something,
>>       but I
>>       >> read this document to
>>       >>             make the
>>       >>                         following assertions:
>>       >>                         >
>>       >>                         > 1. All restrictions on ICANN's
>>       location
>>       >> must be removed.
>>       >>                         >
>>       >>
>>       >>                         And the question reopened for
>>       deliberation by
>>       >> all stakeholders,
>>       >>             including
>>       >>                         governments among others.
>>       >>                         Only the outcome of such deliberation
>>       will be
>>       >> fully legitimate
>>       >>             within the
>>       >>                         framework of the post-2015
>>       >>                         ICANN.
>>       >>
>>       >>                         > 2. ICANN does not have to leave the
>>       US but
>>       >> must be located in
>>       >>             a place
>>       >>                         where the governing law has
>>       >>                         certain characteristics, including
>>       not having
>>       >> the possibiliity
>>       >>             that courts
>>       >>                         overrule ICANN (or at
>>       >>                         least the IRP).
>>       >>                         >
>>       >>                         > (And, as it happens, the US is not
>>       such a
>>       >> place....)
>>       >>                         >
>>       >>
>>       >>                         Not only avoiding courts overruling
>>       relevant
>>       >> outcomes of the
>>       >>             Internet global
>>       >>                         community processes,
>>       >>                         but also examining and resolving the
>>       possible
>>       >>             interferences/conflicts that
>>       >>                         might arise for
>>       >>                         government representatives being
>>       subject to a
>>       >> foreign country
>>       >>             law simply in
>>       >>                         the process of attending
>>       >>                         to their regular duties (if they were
>>       to be
>>       >> fully engaged with
>>       >>             ICANN).
>>       >>
>>       >>                         Quote:
>>       >>
>>       >>
>>       >> "From the Brazilian perspective the existing structure
>>       clearly imposes limits to the participation
>>       >>
>>       >>
>>       >>      ???of governmental representatives, as it is unlikely
>>       that a representative of a foreign government
>>       >>              w
>>       >>                   i
>>       >> ll be authorized (by its own government) to formally accept a
>>       position in a body pertaining to a U.
>>       >>
>>       >>
>>       >>
>>       >>                         S. corporation."
>>       >>
>>       >>                         This may be what you're getting at
>>       with your
>>       >> point 3 below, but
>>       >>             I'm not sure
>>       >>                         whether the problem is
>>       >>                         only the fact that governments have
>>       to deal
>>       >> with a corporate
>>       >>             form/law or
>>       >>                         whether it is altogether
>>       >>                         the fact that it is a single country
>>       law
>>       >> without any form of
>>       >>             deliberate
>>       >>                         endorsement by the other
>>       >>                         governments (who also have law making
>>       power
>>       >> in their respective
>>       >>             country just
>>       >>                         as the US government).
>>       >>
>>       >>                         Assuming your reading is correct, and
>>       if
>>       >> necessary complemented
>>       >>             by my
>>       >>                         remarks above, I'd be
>>       >>                         interested in hearing from you about
>>       any
>>       >> issues you may see with
>>       >>             the BR gov
>>       >>                         comments.
>>       >>                         Thanks,
>>       >>
>>       >>                         Mawaki
>>       >>
>>       >>                         >
>>       >>                         > 3. ICANN doesn't have to change its
>>       form,
>>       >> but it needs a form
>>       >>             where
>>       >>                         governments are comfortable.
>>       >>                         >
>>       >>                         > (And, as it happens, the corporate
>>       form is
>>       >> not such a
>>       >>             form....)
>>       >>                         >
>>       >>                         >
>>       >>                         > What am I missing?
>>       >>                         >
>>       >>                         >
>>       >>                         >
>>       >>                         > On Sat, 6 Jun 2015, Carlos A.
>>       Afonso wrote:
>>       >>                         >
>>       >>                         >> For the ones who are following the
>>       IANA
>>       >> transition process:
>>       >>             attached
>>       >>                         >> please find the comments posted by
>>       the
>>       >> government of Brazil
>>       >>             on June 03,
>>       >>                         >> 2015, in response to the call for
>>       public
>>       >> comments on the
>>       >>                         >> CCWG-Accountability Initial Draft
>>       Proposal.
>>       >>                         >>
>>       >>                         >> I generally agree with the
>>       comments.
>>       >>                         >>
>>       >>                         >> fraternal regards
>>       >>                         >>
>>       >>                         >> --c.a.
>>       >>                         >>
>>       >>                         >
>>       >>                         > --
>>       >>                         > A. Michael Froomkin, http://law.tm
>>       >>                         > Laurie Silvers & Mitchell
>>       Rubenstein
>>       >> Distinguished Professor
>>       >>             of Law
>>       >>                         > Editor, Jotwell: The Journal of
>>       Things We
>>       >> Like (Lots),
>>       >>             jotwell.com
>>       >>                         > Program Chair, We Robot 2016 | +1
>>       (305)
>>       >> 284-4285 |
>>       >>             froomkin at law.tm
>>       >>                         > U. Miami School of Law, P.O. Box
>>       248087,
>>       >> Coral Gables, FL
>>       >>             33124 USA
>>       >>                         >                         -->It's
>>       warm here.<--
>>       >>                         >
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> --
> A. Michael Froomkin, http://law.tm
> Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
> Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
> Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
>                         -->It's warm here.<--
>
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From kichango at gmail.com  Wed Jun 10 14:51:25 2015
From: kichango at gmail.com (Mawaki Chango)
Date: Wed, 10 Jun 2015 18:51:25 +0000
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <CAJkfFByPDZj=6erciGUHiyAtCqSCSrpB1HQUCdGfm3QuMM2iTA@mail.gmail.com>
References: <557378D2.6030503@cafonso.ca>
	<alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu>
	<CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com>
	<alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu>
	<5576ED01.9010606@itforchange.net>
	<alpine.LRH.2.00.1506090955160.12194@post.law.miami.edu>
	<55770298.20609@itforchange.net>
	<alpine.LRH.2.00.1506091131280.12194@post.law.miami.edu>
	<557802CE.4080505@itforchange.net>
	<CAOz-jXSR0tQFx8RV4Rtw_O=RbsHSNnRwQbZCsYA-9QTXBV-cnQ@mail.gmail.com>
	<alpine.LRH.2.00.1506101025020.8188@post.law.miami.edu>
	<CAJkfFByPDZj=6erciGUHiyAtCqSCSrpB1HQUCdGfm3QuMM2iTA@mail.gmail.com>
Message-ID: <CACTo+v89idk43xf9+8GuwtuxfKD=h7QDay6KsDN-rzswRAETAQ@mail.gmail.com>

Simple and maybe trivial question, again (since my previous one about
delegation hasn't found a taker.)

Scenario 1*: I am a citizen of Togo, quite a small country sitting on the
belly of Africa to the west (you may check our macro economic indicators in
the CIA Facebook or from the World Bank online sources.) I am a domain name
registrant. In year 2018 ICANN makes a decision, later upheld by the
conflict resolution mechanism in place, but which I think violates my
fundamental rights as I understand them by any international standards. I
am even pretty convinced that I might win the case in a US court based on
the documentation available /jurisprudence in that country. Problem is, I
have no access to the institutional resources that would allow me to use
the US judicial system as a plaintiff, much less the financial resources it
would take to get a lawyer to represent my interests.

Is that -- the need for everybody to be equal before the law, in practice,
and have their rights equally secured, -- in your view, a problem worthy of
our attention? If so how can we address it.

Thanks

(*) I only have one scenario for now but I'm numbering #1 just in case
others come up later in the discussion.

/Brought to you by Mawaki's droid agent
On Jun 10, 2015 3:57 PM, "Seth Johnson" <seth.p.johnson at gmail.com> wrote:

> I believe the most important focus is on the question of how to
> install effective fundamental liberties limits in the context of an
> international political forum.  That's how you can hope to maintain
> the type of stewardship context we want associated with a medium of
> communication.  The presence of recourse of that sort -- related to
> being based in a national context -- is one of the main reasons why
> ICANN has not gone further off the rails.  Same as for government in
> general in such a national context: we don't get the government
> meddling specifically because the relationship to the national context
> (via the bare presence of NTIA) means the people (at least of the US)
> have recourse against it if it does.
>
> Keep in mind that one of the chief reasons why Obama (and his
> predecessor) have gone off the rails with surveillance and other
> fundamental rights violations is because they have the notion that the
> international arena provides means to act that way without the
> recourse we have against it domestically.  There's still the problem
> of laundering the surveillance by having private corporations (whether
> telco or app) do it on the government's behalf.  But we see an effort
> at long last to try to "legitimize" what they're doing that way at
> least (more apparent effort to not violate citizens in the domestic
> sphere), because we finally got standing in the courts, and
> documentation that was taken seriously via Snowden.  Still just
> domestic, so that doesn't answer general concerns, but this should
> highlight the nature of the problem.  You don't actually have
> fundamental rights in the international arena, no matter how many
> human rights treaties you pass.  That's not what secures rights
> against acts of governments.
>
> Note that this is stuff the UN has been utterly clueless about for
> years and years and years, along with many followers-on.  And I think
> in general the parties who have been acting in the international arena
> like it that way.  We, the people(s), are really the ones to bring it
> into the discourse in a real way, now that we are here in proceedings
> that deign to appear to engage us substantively in international
> policy.
>
>
> Seth
>
> On Wed, Jun 10, 2015 at 10:36 AM, Michael Froomkin - U.Miami School of
> Law <froomkin at law.miami.edu> wrote:
> > On Wed, 10 Jun 2015, Chris Prince Udochukwu Njoku wrote:
> >
> >>
> >> Parminder is emphasizing a true point. An organization which represents
> >> the
> >> interests of many nations, though located in one nation (as it must be)
> >> must
> >> not be subjected to laws that ought to be (and are) for national
> >
> >
> > It is, I think, possible to act as a trustee of international interests
> > while still having accountability rooted in national law.  It may not be
> > possible to accommodate the desires of governments to, in effect, serve
> > directly on the governing body given the view of e.g. the Brazilian
> > government that this is unacceptable subordination to another state, but
> > some may see that as a feature rather than a bug.
> >
> >
> >> organizations. This should be the definition of international
> jurisdiction
> >> here. If the host nation's laws don't actually accommodate the
> >> multinational
> >> stakeholding nature of the organization, it's a ripe clue to the need
> for
> >> relocation to a place that is more friendly to the organization's
> >> operations.
> >>
> >
> > The above contains a term that (to a lawyer) has multiple possible
> meanings.
> > The traditional way to " accommodate the multinational ... nature" of an
> > organization is to incorporate it in Switzerland, and have no effective
> > supervision.  FIFA.  IOC.  No thanks.
> >
> > So I would ask, what is the threat model here?  What is a (mildly
> realistic)
> > example of a scenario in which one fears the entity will do something
> > legitimate and a national court (of the US, Canada, the nation of your
> > choice) would have an appreciable chance of blocking it?  I would note,
> for
> > example, that the only time I can think of that a US court overruled
> ICANN
> > was when it froze out one of its own directors because the staff
> disagreed
> > with his views.  That violated California law empowering directors not to
> > mention any sense of natural justice.  The result was not only just, it
> was
> > necessary.  And it is Exhibit A as to why we cannot simply trust in
> ICANN,
> > or New New Co's, good faith.
> >
> > In other words, I submit that national court supervision in an
> appropriate
> > and democratic jurisdiction is far, far more likely to produce good
> outcomes
> > than bad ones, while the removal of this valuable check is almost
> certain to
> > lead to difficulties.  What is more, those difficulties will not be
> > prevented by having the body be "international" for any currently known
> > meaning of the term.
> >
> > Contrary to other messages in this thread, I do not believe that there is
> > much in the way of effective monitoring of many multi-national treaty
> bodies
> > other than by action of the member states.  No one else has much real
> > leverage over WIPO, GATT, you name it.  NGOs have some moral and
> > intellectual suasion, but some of their clout also comes from the fact
> that
> > it influences or might influence the members.
> >
> > I prefer to attempt to engineer a much surer means of dealing with major
> and
> > substantially foreseeable problems.
> >
> >
> >> On Jun 10, 2015 11:27 AM, "parminder" <parminder at itforchange.net>
> wrote:
> >>
> >>
> >>       On Tuesday 09 June 2015 09:09 PM, Michael Froomkin - U.Miami
> >>       School of
> >>       Law wrote:
> >>       > On Tue, 9 Jun 2015, parminder wrote:
> >>       >
> >>       >> Are you saying that it is not possible for ICANN to undertake
> >>       the
> >>       >> functions that it needs to
> >>       >> undertake while being an international institution
> >>       incorporated under
> >>       >> international law, and free
> >>       >> from any countries jurisdiction in terms of its basic
> >>       governance
> >>       >> functions? I just want to be clear.
> >>       >
> >>       > I don't know what an "an international institution
> >>       incorporated under
> >>       > international law" is except bodies like FIFA (under Swiss
> >>       law), or UN
> >>       > bodies, or sui generis treaty bodies.  It is certainly
> >>       *possible* for
> >>       > ICANN to have any of those statuses and to "function"; as far
> >>       as I can
> >>       > tell, however, it's just not possible to build in meaningful
> >>       > accountability in those structures.
> >>
> >>       There are of course problems and issues everywhere, but it can
> >>       hardly be
> >>       said that UN and/or treaty bodies work without meaningful
> >>       accountability. Further, any new international treaty/ law
> >>       establishing
> >>       a new body - an really international ICANN for instance - can
> >>       write all
> >>       the accountability method it or we want to have written in it.
> >>       >
> >>       > There is no general international law of incorporation of
> >>       which I am
> >>       > aware.  Corporate (formation) law is all national law.  That
> >>       is the
> >>       > reality that must be confronted.  There is no place I can go
> >>       to get an
> >>       > international corporate charter, and good thing too - why
> >>       should I be
> >>       > able to exempt myself from national law?
> >>
> >>       This hits a fundamental issue - I see ICANN, in its ideal form,
> >>       as a
> >>       governance body, since it does governance functions, and not as
> >>       a
> >>       private corporation. So we need a new international treaty
> >>       sanctifying
> >>       ICANN as a global governance body - with its basic forms largely
> >>       unchanged, with new accountability means (including judicial
> >>       accountability) and not ways to be able incorporate a private
> >>       kind of an
> >>       entity outside national laws, which is admittedly both very
> >>       difficult,
> >>       and rather undesirable.
> >>
> >>       parminder
> >>
> >>       >
> >>       >>
> >>       >> If so, that would be an interesting assertion. Now, I am sure
> >>       this is
> >>       >> not true. However, I am not an
> >>       >> international legal expert and not able to right now build
> >>       and
> >>       >> present the whole scenario for you on
> >>       >> how it can be done. I am sure there are a number of
> >>       international
> >>       >> organisations that do different
> >>       >> kind of complex activities and have found ways to do it under
> >>       >> international law and jurisdiction.
> >>       >
> >>       > But those are in the main treaty bodies.
> >>       >
> >>       >> And if some new directions and evolutions are needed that can
> >>       also be
> >>       >> worked out (please see my last
> >>       >> email on this count).
> >>       >>
> >>       >
> >>       > Here we just disagree. I see the task as monsterously hard,
> >>       the work
> >>       > of a decade or more.
> >>       >
> >>       >> BTW it is a sad statement on the geo political economy of
> >>       knowledge
> >>       >> production in this area that
> >>       >> there is not one full fledged scenario developed by anyone on
> >>       how
> >>       >> ICANN can undertakes its
> >>       >> activities under international law/ jurisdiction - which I am
> >>       pretty
> >>       >> sure it can. Many parties,
> >>       >> including governments have called for it, and yes I agree
> >>       someone
> >>       >> should come up with a full
> >>       >> politico-legal and institutional description of how it can
> >>       and should
> >>       >> be done - with all the details
> >>       >> in place. And that is the sad part of it, of how things stand
> >>       at the
> >>       >> global level, had now lopsided
> >>       >> is resource distribution, all kinds of resources.
> >>       >>
> >>       >
> >>       > Alas.
> >>       >
> >>       >> Not to shy away from responsibility - I am happy to
> >>       collaborate with
> >>       >> anyone if someone can out time
> >>       >> into it.
> >>       >>
> >>       >> And no, it cannot be solved by any other country
> >>       jurisdiction. Apart
> >>       >> from it being still being wrong
> >>       >> in principle, how would US accept that another jurisdiction
> >>       is better
> >>       >> than its own and accede to
> >>       >> such a change. Accepting the patently justified fact that an
> >>       >> international infrastructure should be
> >>       >> governed internationally, on the other hand, is much easier .
> >>       >>
> >>       >
> >>       > I would not dismiss this so quickly.  I take a substantial
> >>       fraction of
> >>       > the opposition to US residual control (for that is all we are
> >>       talking
> >>       > about) to be tied to the US's status as defacto hegemon.
> >>       Moving ICANN
> >>       > to another state with a strong human rights record would
> >>       answer that
> >>       > part of the critique.
> >>       >
> >>       > In my view, a bespoke international structure is actually much
> >>       harder
> >>       > -- it would need to be invented almost from scratch.  And it
> >>       is bound
> >>       > to be flawed; national rules are the result of at least
> >>       decades if not
> >>       > more of trial and error.
> >>       >
> >>       >> parminder
> >>       >>
> >>       >> On Tuesday 09 June 2015 07:31 PM, Michael Froomkin - U.Miami
> >>       School
> >>       >> of Law wrote:
> >>       >>       I don't know what it means to say that ICANN should be
> >>       subject
> >>       >> to "international
> >>       >>       jurisdiction and law".  For the relevant issues, that
> >>       sounds
> >>       >> like a pretty empty set.
> >>       >>
> >>       >>       As regards most of the sort of things one might expect
> >>       to worry
> >>       >> about - e.g. fidelity to
> >>       >>       articles of incorporation - international law is
> >>       basically
> >>       >> silent.  And there is no
> >>       >>       relevant jurisdiction either.  So I remain stuck in the
> >>       >> position that there must be a
> >>       >>       state anchor whose courts are given the job.  It does
> >>       not of
> >>       >> course need to be the US,
> >>       >>       although I would note that the US courts are by
> >>       international
> >>       >> standards not shy and
> >>       >>       actually fairly good at this sort of thing.
> >>       >>
> >>       >>       I do think, however, that it should NOT be Switzerland,
> >>       as its
> >>       >> courts are historically
> >>       >>       over-deferential to international bodies - perhaps as
> >>       part of
> >>       >> state policy to be an
> >>       >>       attractive location for those high-spending
> >>       international
> >>       >> meetings.
> >>       >>
> >>       >>       I'd be real happy with Canada, though.
> >>       >>
> >>       >>       On Tue, 9 Jun 2015, parminder wrote:
> >>       >>
> >>       >>
> >>       >>
> >>       >>             On Tuesday 09 June 2015 06:26 PM, Michael
> >>       Froomkin -
> >>       >> U.Miami School of Law
> >>       >>             wrote:
> >>       >>
> >>       >>                   I think that bodies which do not need to
> >>       fear
> >>       >> supervision by
> >>       >>             legitimate courts end up
> >>       >>                   like FIFA. FIFA had a legal status in
> >>       Switzerland
> >>       >> that basically
> >>       >>             insulated it the way
> >>       >>                   that the Brazilian document seems to
> >>       suggest would
> >>       >> be what they want
> >>       >>             for ICANN.  (It's
> >>       >>                   also the legal status ICANN has at times
> >>       suggested
> >>       >> it would like.)
> >>       >>
> >>       >>                   The lesson of history seems unusually clear
> >>       here.
> >>       >>
> >>       >>
> >>       >>             Agree that ICANN cannot be left jurisdictionally
> >>       >> un-supervised - that may be
> >>       >>             even more dangerous
> >>       >>             than the present situation. However, the right
> >>       >> supervision or oversight is
> >>       >>             of international
> >>       >>             jurisdiction and law, not that of the US . This
> >>       is what
> >>       >> Brazil has to make
> >>       >>             upfront as the
> >>       >>             implication of what it is really seeking, and its
> >>       shyness
> >>       >> and reticence to
> >>       >>             say so is what I noted as
> >>       >>             surprising in an earlier email in this thread.
> >>       Not
> >>       >> putting out clearly what
> >>       >>             exactly it wants would
> >>       >>             lead to misconceptions about its position, which
> >>       IMHO can
> >>       >> be seen from how
> >>       >>             Michael reads it.  I am
> >>       >>             sure this is not how Brazil meant it - to free
> >>       ICANN from
> >>       >> all kinds of
> >>       >>             jurisdictional oversight
> >>       >>             whatsoever - but then Brazil needs to say clearly
> >>       what is
> >>       >> it that it wants,
> >>       >>             and how can it can
> >>       >>             obtained. Brazil, please come out of your
> >>       NetMundial
> >>       >> hangover and take
> >>       >>             political responsibility for
> >>       >>             what you say and seek!
> >>       >>
> >>       >>             parminder
> >>       >>
> >>       >>
> >>       >>
> >>       >>                   On Tue, 9 Jun 2015, Mawaki Chango wrote:
> >>       >>
> >>       >>
> >>       >>                         It's good to see a law scholar
> >>       involved in
> >>       >> this discussion. I'll
> >>       >>             leave it to
> >>       >>                         the Brazilian party to
> >>       >>                         ultimate tell whether your reading is
> >>       correct
> >>       >> or not. In the
> >>       >>             meantime I'd
> >>       >>                         volunteer the following
> >>       >>                         comments.
> >>       >>
> >>       >>                         On Jun 8, 2015 10:46 PM, "Michael
> >>       Froomkin -
> >>       >> U.Miami School of
> >>       >>             Law"
> >>       >>                         <froomkin at law.miami.edu> wrote:
> >>       >>                         >
> >>       >>                         > Perhaps I'm misreading something,
> >>       but I
> >>       >> read this document to
> >>       >>             make the
> >>       >>                         following assertions:
> >>       >>                         >
> >>       >>                         > 1. All restrictions on ICANN's
> >>       location
> >>       >> must be removed.
> >>       >>                         >
> >>       >>
> >>       >>                         And the question reopened for
> >>       deliberation by
> >>       >> all stakeholders,
> >>       >>             including
> >>       >>                         governments among others.
> >>       >>                         Only the outcome of such deliberation
> >>       will be
> >>       >> fully legitimate
> >>       >>             within the
> >>       >>                         framework of the post-2015
> >>       >>                         ICANN.
> >>       >>
> >>       >>                         > 2. ICANN does not have to leave the
> >>       US but
> >>       >> must be located in
> >>       >>             a place
> >>       >>                         where the governing law has
> >>       >>                         certain characteristics, including
> >>       not having
> >>       >> the possibiliity
> >>       >>             that courts
> >>       >>                         overrule ICANN (or at
> >>       >>                         least the IRP).
> >>       >>                         >
> >>       >>                         > (And, as it happens, the US is not
> >>       such a
> >>       >> place....)
> >>       >>                         >
> >>       >>
> >>       >>                         Not only avoiding courts overruling
> >>       relevant
> >>       >> outcomes of the
> >>       >>             Internet global
> >>       >>                         community processes,
> >>       >>                         but also examining and resolving the
> >>       possible
> >>       >>             interferences/conflicts that
> >>       >>                         might arise for
> >>       >>                         government representatives being
> >>       subject to a
> >>       >> foreign country
> >>       >>             law simply in
> >>       >>                         the process of attending
> >>       >>                         to their regular duties (if they were
> >>       to be
> >>       >> fully engaged with
> >>       >>             ICANN).
> >>       >>
> >>       >>                         Quote:
> >>       >>
> >>       >>
> >>       >> "From the Brazilian perspective the existing structure
> >>       clearly imposes limits to the participation
> >>       >>
> >>       >>
> >>       >>      ???of governmental representatives, as it is unlikely
> >>       that a representative of a foreign government
> >>       >>              w
> >>       >>                   i
> >>       >> ll be authorized (by its own government) to formally accept a
> >>       position in a body pertaining to a U.
> >>       >>
> >>       >>
> >>       >>
> >>       >>                         S. corporation."
> >>       >>
> >>       >>                         This may be what you're getting at
> >>       with your
> >>       >> point 3 below, but
> >>       >>             I'm not sure
> >>       >>                         whether the problem is
> >>       >>                         only the fact that governments have
> >>       to deal
> >>       >> with a corporate
> >>       >>             form/law or
> >>       >>                         whether it is altogether
> >>       >>                         the fact that it is a single country
> >>       law
> >>       >> without any form of
> >>       >>             deliberate
> >>       >>                         endorsement by the other
> >>       >>                         governments (who also have law making
> >>       power
> >>       >> in their respective
> >>       >>             country just
> >>       >>                         as the US government).
> >>       >>
> >>       >>                         Assuming your reading is correct, and
> >>       if
> >>       >> necessary complemented
> >>       >>             by my
> >>       >>                         remarks above, I'd be
> >>       >>                         interested in hearing from you about
> >>       any
> >>       >> issues you may see with
> >>       >>             the BR gov
> >>       >>                         comments.
> >>       >>                         Thanks,
> >>       >>
> >>       >>                         Mawaki
> >>       >>
> >>       >>                         >
> >>       >>                         > 3. ICANN doesn't have to change its
> >>       form,
> >>       >> but it needs a form
> >>       >>             where
> >>       >>                         governments are comfortable.
> >>       >>                         >
> >>       >>                         > (And, as it happens, the corporate
> >>       form is
> >>       >> not such a
> >>       >>             form....)
> >>       >>                         >
> >>       >>                         >
> >>       >>                         > What am I missing?
> >>       >>                         >
> >>       >>                         >
> >>       >>                         >
> >>       >>                         > On Sat, 6 Jun 2015, Carlos A.
> >>       Afonso wrote:
> >>       >>                         >
> >>       >>                         >> For the ones who are following the
> >>       IANA
> >>       >> transition process:
> >>       >>             attached
> >>       >>                         >> please find the comments posted by
> >>       the
> >>       >> government of Brazil
> >>       >>             on June 03,
> >>       >>                         >> 2015, in response to the call for
> >>       public
> >>       >> comments on the
> >>       >>                         >> CCWG-Accountability Initial Draft
> >>       Proposal.
> >>       >>                         >>
> >>       >>                         >> I generally agree with the
> >>       comments.
> >>       >>                         >>
> >>       >>                         >> fraternal regards
> >>       >>                         >>
> >>       >>                         >> --c.a.
> >>       >>                         >>
> >>       >>                         >
> >>       >>                         > --
> >>       >>                         > A. Michael Froomkin, http://law.tm
> >>       >>                         > Laurie Silvers & Mitchell
> >>       Rubenstein
> >>       >> Distinguished Professor
> >>       >>             of Law
> >>       >>                         > Editor, Jotwell: The Journal of
> >>       Things We
> >>       >> Like (Lots),
> >>       >>             jotwell.com
> >>       >>                         > Program Chair, We Robot 2016 | +1
> >>       (305)
> >>       >> 284-4285 |
> >>       >>             froomkin at law.tm
> >>       >>                         > U. Miami School of Law, P.O. Box
> >>       248087,
> >>       >> Coral Gables, FL
> >>       >>             33124 USA
> >>       >>                         >                         -->It's
> >>       warm here.<--
> >>       >>                         >
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> > Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
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From froomkin at law.miami.edu  Wed Jun 10 15:38:48 2015
From: froomkin at law.miami.edu (Michael Froomkin - U.Miami School of Law)
Date: Wed, 10 Jun 2015 15:38:48 -0400
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <CACTo+v89idk43xf9+8GuwtuxfKD=h7QDay6KsDN-rzswRAETAQ@mail.gmail.com>
References: <557378D2.6030503@cafonso.ca> <alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu> <CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com> <alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu> <5576ED01.9010606@itforchange.net>
 <alpine.LRH.2.00.1506090955160.12194@post.law.miami.edu> <55770298.20609@itforchange.net> <alpine.LRH.2.00.1506091131280.12194@post.law.miami.edu> <557802CE.4080505@itforchange.net> <CAOz-jXSR0tQFx8RV4Rtw_O=RbsHSNnRwQbZCsYA-9QTXBV-cnQ@mail.gmail.com>
 <alpine.LRH.2.00.1506101025020.8188@post.law.miami.edu> <CAJkfFByPDZj=6erciGUHiyAtCqSCSrpB1HQUCdGfm3QuMM2iTA@mail.gmail.com> <CACTo+v89idk43xf9+8GuwtuxfKD=h7QDay6KsDN-rzswRAETAQ@mail.gmail.com>
Message-ID: <alpine.LRH.2.00.1506101532320.9106@post.law.miami.edu>

On Wed, 10 Jun 2015, Mawaki Chango wrote:

> 
> Simple and maybe trivial question, again (since my previous one about
> delegation hasn't found a taker.)

Neither simple nor trivial!  Please preserve me from your hard and 
important questions!

> 
> Scenario 1*: I am a citizen of Togo, quite a small country sitting on the
> belly of Africa to the west (you may check our macro economic indicators in
> the CIA Facebook or from the World Bank online sources.) I am a domain name
> registrant. In year 2018 ICANN makes a decision, later upheld by the
> conflict resolution mechanism in place, but which I think violates my
> fundamental rights as I understand them by any international standards. I am
> even pretty convinced that I might win the case in a US court based on the
> documentation available /jurisprudence in that country. Problem is, I have
> no access to the institutional resources that would allow me to use the US
> judicial system as a plaintiff, much less the financial resources it would
> take to get a lawyer to represent my interests.
> 
> Is that -- the need for everybody to be equal before the law, in practice,
> and have their rights equally secured, -- in your view, a problem worthy of
> our attention? If so how can we address it.


Sadly, most US citizens don't have those resources either (in their 
private capacities).  Hence, litigation of this kind tends to rely on the 
case being adopted by an NGO such as EFF or ACLU or the like that does the 
legal work.  This isn't a very good solution, but it does mean that the 
footing is less uneven than you might think.

That said, I think this is a very good problem to worry about.  (The 
economic answer would be for ICANN to offer law bounties -- like some 
software firms offer bug bounties -- that it would pay if it lost a legal 
case.  If they were high enough, private firms would take your case on 
contingency.  While this is economically elegant, it has no traction in 
the real world.)

A more real solution would be for someone to set up an NGO which saw such 
cases as a core part of its mission, or to endow a program at an existing 
NGO.  More realistic, but still difficult to conjure out of the air.

I would however note that if the system of law is 'international' then the 
costs to the litigant are in practice even higher, and the accessibility 
to the average citizen of even rich countries is even less.  Thus your 
question applies strongly in both (all?) scenarios.

> 
> Thanks
> 
> (*) I only have one scenario for now but I'm numbering #1 just in case
> others come up later in the discussion.
> 
> /Brought to you by Mawaki's droid agent
> 
> On Jun 10, 2015 3:57 PM, "Seth Johnson" <seth.p.johnson at gmail.com> wrote:
>       I believe the most important focus is on the question of how to
>       install effective fundamental liberties limits in the context of
>       an
>       international political forum.  That's how you can hope to
>       maintain
>       the type of stewardship context we want associated with a medium
>       of
>       communication.  The presence of recourse of that sort -- related
>       to
>       being based in a national context -- is one of the main reasons
>       why
>       ICANN has not gone further off the rails.  Same as for
>       government in
>       general in such a national context: we don't get the government
>       meddling specifically because the relationship to the national
>       context
>       (via the bare presence of NTIA) means the people (at least of
>       the US)
>       have recourse against it if it does.
>
>       Keep in mind that one of the chief reasons why Obama (and his
>       predecessor) have gone off the rails with surveillance and other
>       fundamental rights violations is because they have the notion
>       that the
>       international arena provides means to act that way without the
>       recourse we have against it domestically.  There's still the
>       problem
>       of laundering the surveillance by having private corporations
>       (whether
>       telco or app) do it on the government's behalf.  But we see an
>       effort
>       at long last to try to "legitimize" what they're doing that way
>       at
>       least (more apparent effort to not violate citizens in the
>       domestic
>       sphere), because we finally got standing in the courts, and
>       documentation that was taken seriously via Snowden.  Still just
>       domestic, so that doesn't answer general concerns, but this
>       should
>       highlight the nature of the problem.  You don't actually have
>       fundamental rights in the international arena, no matter how
>       many
>       human rights treaties you pass.  That's not what secures rights
>       against acts of governments.
>
>       Note that this is stuff the UN has been utterly clueless about
>       for
>       years and years and years, along with many followers-on.  And I
>       think
>       in general the parties who have been acting in the international
>       arena
>       like it that way.  We, the people(s), are really the ones to
>       bring it
>       into the discourse in a real way, now that we are here in
>       proceedings
>       that deign to appear to engage us substantively in international
>       policy.
> 
>
>       Seth
>
>       On Wed, Jun 10, 2015 at 10:36 AM, Michael Froomkin - U.Miami
>       School of
>       Law <froomkin at law.miami.edu> wrote:
>       > On Wed, 10 Jun 2015, Chris Prince Udochukwu Njoku wrote:
>       >
>       >>
>       >> Parminder is emphasizing a true point. An organization which
>       represents
>       >> the
>       >> interests of many nations, though located in one nation (as
>       it must be)
>       >> must
>       >> not be subjected to laws that ought to be (and are) for
>       national
>       >
>       >
>       > It is, I think, possible to act as a trustee of international
>       interests
>       > while still having accountability rooted in national law.  It
>       may not be
>       > possible to accommodate the desires of governments to, in
>       effect, serve
>       > directly on the governing body given the view of e.g. the
>       Brazilian
>       > government that this is unacceptable subordination to another
>       state, but
>       > some may see that as a feature rather than a bug.
>       >
>       >
>       >> organizations. This should be the definition of international
>       jurisdiction
>       >> here. If the host nation's laws don't actually accommodate
>       the
>       >> multinational
>       >> stakeholding nature of the organization, it's a ripe clue to
>       the need for
>       >> relocation to a place that is more friendly to the
>       organization's
>       >> operations.
>       >>
>       >
>       > The above contains a term that (to a lawyer) has multiple
>       possible meanings.
>       > The traditional way to " accommodate the multinational ...
>       nature" of an
>       > organization is to incorporate it in Switzerland, and have no
>       effective
>       > supervision.  FIFA.  IOC.  No thanks.
>       >
>       > So I would ask, what is the threat model here?  What is a
>       (mildly realistic)
>       > example of a scenario in which one fears the entity will do
>       something
>       > legitimate and a national court (of the US, Canada, the nation
>       of your
>       > choice) would have an appreciable chance of blocking it?  I
>       would note, for
>       > example, that the only time I can think of that a US court
>       overruled ICANN
>       > was when it froze out one of its own directors because the
>       staff disagreed
>       > with his views.  That violated California law empowering
>       directors not to
>       > mention any sense of natural justice.  The result was not only
>       just, it was
>       > necessary.  And it is Exhibit A as to why we cannot simply
>       trust in ICANN,
>       > or New New Co's, good faith.
>       >
>       > In other words, I submit that national court supervision in an
>       appropriate
>       > and democratic jurisdiction is far, far more likely to produce
>       good outcomes
>       > than bad ones, while the removal of this valuable check is
>       almost certain to
>       > lead to difficulties.  What is more, those difficulties will
>       not be
>       > prevented by having the body be "international" for any
>       currently known
>       > meaning of the term.
>       >
>       > Contrary to other messages in this thread, I do not believe
>       that there is
>       > much in the way of effective monitoring of many multi-national
>       treaty bodies
>       > other than by action of the member states.  No one else has
>       much real
>       > leverage over WIPO, GATT, you name it.  NGOs have some moral
>       and
>       > intellectual suasion, but some of their clout also comes from
>       the fact that
>       > it influences or might influence the members.
>       >
>       > I prefer to attempt to engineer a much surer means of dealing
>       with major and
>       > substantially foreseeable problems.
>       >
>       >
>       >> On Jun 10, 2015 11:27 AM, "parminder"
>       <parminder at itforchange.net> wrote:
>       >>
>       >>
>       >>       On Tuesday 09 June 2015 09:09 PM, Michael Froomkin -
>       U.Miami
>       >>       School of
>       >>       Law wrote:
>       >>       > On Tue, 9 Jun 2015, parminder wrote:
>       >>       >
>       >>       >> Are you saying that it is not possible for ICANN to
>       undertake
>       >>       the
>       >>       >> functions that it needs to
>       >>       >> undertake while being an international institution
>       >>       incorporated under
>       >>       >> international law, and free
>       >>       >> from any countries jurisdiction in terms of its
>       basic
>       >>       governance
>       >>       >> functions? I just want to be clear.
>       >>       >
>       >>       > I don't know what an "an international institution
>       >>       incorporated under
>       >>       > international law" is except bodies like FIFA (under
>       Swiss
>       >>       law), or UN
>       >>       > bodies, or sui generis treaty bodies.  It is
>       certainly
>       >>       *possible* for
>       >>       > ICANN to have any of those statuses and to
>       "function"; as far
>       >>       as I can
>       >>       > tell, however, it's just not possible to build in
>       meaningful
>       >>       > accountability in those structures.
>       >>
>       >>       There are of course problems and issues everywhere, but
>       it can
>       >>       hardly be
>       >>       said that UN and/or treaty bodies work without
>       meaningful
>       >>       accountability. Further, any new international treaty/
>       law
>       >>       establishing
>       >>       a new body - an really international ICANN for instance
>       - can
>       >>       write all
>       >>       the accountability method it or we want to have written
>       in it.
>       >>       >
>       >>       > There is no general international law of
>       incorporation of
>       >>       which I am
>       >>       > aware.  Corporate (formation) law is all national
>       law.  That
>       >>       is the
>       >>       > reality that must be confronted.  There is no place I
>       can go
>       >>       to get an
>       >>       > international corporate charter, and good thing too -
>       why
>       >>       should I be
>       >>       > able to exempt myself from national law?
>       >>
>       >>       This hits a fundamental issue - I see ICANN, in its
>       ideal form,
>       >>       as a
>       >>       governance body, since it does governance functions,
>       and not as
>       >>       a
>       >>       private corporation. So we need a new international
>       treaty
>       >>       sanctifying
>       >>       ICANN as a global governance body - with its basic
>       forms largely
>       >>       unchanged, with new accountability means (including
>       judicial
>       >>       accountability) and not ways to be able incorporate a
>       private
>       >>       kind of an
>       >>       entity outside national laws, which is admittedly both
>       very
>       >>       difficult,
>       >>       and rather undesirable.
>       >>
>       >>       parminder
>       >>
>       >>       >
>       >>       >>
>       >>       >> If so, that would be an interesting assertion. Now,
>       I am sure
>       >>       this is
>       >>       >> not true. However, I am not an
>       >>       >> international legal expert and not able to right now
>       build
>       >>       and
>       >>       >> present the whole scenario for you on
>       >>       >> how it can be done. I am sure there are a number of
>       >>       international
>       >>       >> organisations that do different
>       >>       >> kind of complex activities and have found ways to do
>       it under
>       >>       >> international law and jurisdiction.
>       >>       >
>       >>       > But those are in the main treaty bodies.
>       >>       >
>       >>       >> And if some new directions and evolutions are needed
>       that can
>       >>       also be
>       >>       >> worked out (please see my last
>       >>       >> email on this count).
>       >>       >>
>       >>       >
>       >>       > Here we just disagree. I see the task as monsterously
>       hard,
>       >>       the work
>       >>       > of a decade or more.
>       >>       >
>       >>       >> BTW it is a sad statement on the geo political
>       economy of
>       >>       knowledge
>       >>       >> production in this area that
>       >>       >> there is not one full fledged scenario developed by
>       anyone on
>       >>       how
>       >>       >> ICANN can undertakes its
>       >>       >> activities under international law/ jurisdiction -
>       which I am
>       >>       pretty
>       >>       >> sure it can. Many parties,
>       >>       >> including governments have called for it, and yes I
>       agree
>       >>       someone
>       >>       >> should come up with a full
>       >>       >> politico-legal and institutional description of how
>       it can
>       >>       and should
>       >>       >> be done - with all the details
>       >>       >> in place. And that is the sad part of it, of how
>       things stand
>       >>       at the
>       >>       >> global level, had now lopsided
>       >>       >> is resource distribution, all kinds of resources.
>       >>       >>
>       >>       >
>       >>       > Alas.
>       >>       >
>       >>       >> Not to shy away from responsibility - I am happy to
>       >>       collaborate with
>       >>       >> anyone if someone can out time
>       >>       >> into it.
>       >>       >>
>       >>       >> And no, it cannot be solved by any other country
>       >>       jurisdiction. Apart
>       >>       >> from it being still being wrong
>       >>       >> in principle, how would US accept that another
>       jurisdiction
>       >>       is better
>       >>       >> than its own and accede to
>       >>       >> such a change. Accepting the patently justified fact
>       that an
>       >>       >> international infrastructure should be
>       >>       >> governed internationally, on the other hand, is much
>       easier .
>       >>       >>
>       >>       >
>       >>       > I would not dismiss this so quickly.  I take a
>       substantial
>       >>       fraction of
>       >>       > the opposition to US residual control (for that is
>       all we are
>       >>       talking
>       >>       > about) to be tied to the US's status as defacto
>       hegemon.
>       >>       Moving ICANN
>       >>       > to another state with a strong human rights record
>       would
>       >>       answer that
>       >>       > part of the critique.
>       >>       >
>       >>       > In my view, a bespoke international structure is
>       actually much
>       >>       harder
>       >>       > -- it would need to be invented almost from scratch. 
>       And it
>       >>       is bound
>       >>       > to be flawed; national rules are the result of at
>       least
>       >>       decades if not
>       >>       > more of trial and error.
>       >>       >
>       >>       >> parminder
>       >>       >>
>       >>       >> On Tuesday 09 June 2015 07:31 PM, Michael Froomkin -
>       U.Miami
>       >>       School
>       >>       >> of Law wrote:
>       >>       >>       I don't know what it means to say that ICANN
>       should be
>       >>       subject
>       >>       >> to "international
>       >>       >>       jurisdiction and law".  For the relevant
>       issues, that
>       >>       sounds
>       >>       >> like a pretty empty set.
>       >>       >>
>       >>       >>       As regards most of the sort of things one
>       might expect
>       >>       to worry
>       >>       >> about - e.g. fidelity to
>       >>       >>       articles of incorporation - international law
>       is
>       >>       basically
>       >>       >> silent.  And there is no
>       >>       >>       relevant jurisdiction either.  So I remain
>       stuck in the
>       >>       >> position that there must be a
>       >>       >>       state anchor whose courts are given the job. 
>       It does
>       >>       not of
>       >>       >> course need to be the US,
>       >>       >>       although I would note that the US courts are
>       by
>       >>       international
>       >>       >> standards not shy and
>       >>       >>       actually fairly good at this sort of thing.
>       >>       >>
>       >>       >>       I do think, however, that it should NOT be
>       Switzerland,
>       >>       as its
>       >>       >> courts are historically
>       >>       >>       over-deferential to international bodies -
>       perhaps as
>       >>       part of
>       >>       >> state policy to be an
>       >>       >>       attractive location for those high-spending
>       >>       international
>       >>       >> meetings.
>       >>       >>
>       >>       >>       I'd be real happy with Canada, though.
>       >>       >>
>       >>       >>       On Tue, 9 Jun 2015, parminder wrote:
>       >>       >>
>       >>       >>
>       >>       >>
>       >>       >>             On Tuesday 09 June 2015 06:26 PM,
>       Michael
>       >>       Froomkin -
>       >>       >> U.Miami School of Law
>       >>       >>             wrote:
>       >>       >>
>       >>       >>                   I think that bodies which do not
>       need to
>       >>       fear
>       >>       >> supervision by
>       >>       >>             legitimate courts end up
>       >>       >>                   like FIFA. FIFA had a legal status
>       in
>       >>       Switzerland
>       >>       >> that basically
>       >>       >>             insulated it the way
>       >>       >>                   that the Brazilian document seems
>       to
>       >>       suggest would
>       >>       >> be what they want
>       >>       >>             for ICANN.  (It's
>       >>       >>                   also the legal status ICANN has at
>       times
>       >>       suggested
>       >>       >> it would like.)
>       >>       >>
>       >>       >>                   The lesson of history seems
>       unusually clear
>       >>       here.
>       >>       >>
>       >>       >>
>       >>       >>             Agree that ICANN cannot be left
>       jurisdictionally
>       >>       >> un-supervised - that may be
>       >>       >>             even more dangerous
>       >>       >>             than the present situation. However, the
>       right
>       >>       >> supervision or oversight is
>       >>       >>             of international
>       >>       >>             jurisdiction and law, not that of the US
>       . This
>       >>       is what
>       >>       >> Brazil has to make
>       >>       >>             upfront as the
>       >>       >>             implication of what it is really
>       seeking, and its
>       >>       shyness
>       >>       >> and reticence to
>       >>       >>             say so is what I noted as
>       >>       >>             surprising in an earlier email in this
>       thread.
>       >>       Not
>       >>       >> putting out clearly what
>       >>       >>             exactly it wants would
>       >>       >>             lead to misconceptions about its
>       position, which
>       >>       IMHO can
>       >>       >> be seen from how
>       >>       >>             Michael reads it.  I am
>       >>       >>             sure this is not how Brazil meant it -
>       to free
>       >>       ICANN from
>       >>       >> all kinds of
>       >>       >>             jurisdictional oversight
>       >>       >>             whatsoever - but then Brazil needs to
>       say clearly
>       >>       what is
>       >>       >> it that it wants,
>       >>       >>             and how can it can
>       >>       >>             obtained. Brazil, please come out of
>       your
>       >>       NetMundial
>       >>       >> hangover and take
>       >>       >>             political responsibility for
>       >>       >>             what you say and seek!
>       >>       >>
>       >>       >>             parminder
>       >>       >>
>       >>       >>
>       >>       >>
>       >>       >>                   On Tue, 9 Jun 2015, Mawaki Chango
>       wrote:
>       >>       >>
>       >>       >>
>       >>       >>                         It's good to see a law
>       scholar
>       >>       involved in
>       >>       >> this discussion. I'll
>       >>       >>             leave it to
>       >>       >>                         the Brazilian party to
>       >>       >>                         ultimate tell whether your
>       reading is
>       >>       correct
>       >>       >> or not. In the
>       >>       >>             meantime I'd
>       >>       >>                         volunteer the following
>       >>       >>                         comments.
>       >>       >>
>       >>       >>                         On Jun 8, 2015 10:46 PM,
>       "Michael
>       >>       Froomkin -
>       >>       >> U.Miami School of
>       >>       >>             Law"
>       >>       >>                         <froomkin at law.miami.edu>
>       wrote:
>       >>       >>                         >
>       >>       >>                         > Perhaps I'm misreading
>       something,
>       >>       but I
>       >>       >> read this document to
>       >>       >>             make the
>       >>       >>                         following assertions:
>       >>       >>                         >
>       >>       >>                         > 1. All restrictions on
>       ICANN's
>       >>       location
>       >>       >> must be removed.
>       >>       >>                         >
>       >>       >>
>       >>       >>                         And the question reopened
>       for
>       >>       deliberation by
>       >>       >> all stakeholders,
>       >>       >>             including
>       >>       >>                         governments among others.
>       >>       >>                         Only the outcome of such
>       deliberation
>       >>       will be
>       >>       >> fully legitimate
>       >>       >>             within the
>       >>       >>                         framework of the post-2015
>       >>       >>                         ICANN.
>       >>       >>
>       >>       >>                         > 2. ICANN does not have to
>       leave the
>       >>       US but
>       >>       >> must be located in
>       >>       >>             a place
>       >>       >>                         where the governing law has
>       >>       >>                         certain characteristics,
>       including
>       >>       not having
>       >>       >> the possibiliity
>       >>       >>             that courts
>       >>       >>                         overrule ICANN (or at
>       >>       >>                         least the IRP).
>       >>       >>                         >
>       >>       >>                         > (And, as it happens, the
>       US is not
>       >>       such a
>       >>       >> place....)
>       >>       >>                         >
>       >>       >>
>       >>       >>                         Not only avoiding courts
>       overruling
>       >>       relevant
>       >>       >> outcomes of the
>       >>       >>             Internet global
>       >>       >>                         community processes,
>       >>       >>                         but also examining and
>       resolving the
>       >>       possible
>       >>       >>             interferences/conflicts that
>       >>       >>                         might arise for
>       >>       >>                         government representatives
>       being
>       >>       subject to a
>       >>       >> foreign country
>       >>       >>             law simply in
>       >>       >>                         the process of attending
>       >>       >>                         to their regular duties (if
>       they were
>       >>       to be
>       >>       >> fully engaged with
>       >>       >>             ICANN).
>       >>       >>
>       >>       >>                         Quote:
>       >>       >>
>       >>       >>
>       >>       >> "From the Brazilian perspective the existing
>       structure
>       >>       clearly imposes limits to the participation
>       >>       >>
>       >>       >>
>       >>       >>      ???of governmental representatives, as it is
>       unlikely
>       >>       that a representative of a foreign government
>       >>       >>              w
>       >>       >>                   i
>       >>       >> ll be authorized (by its own government) to formally
>       accept a
>       >>       position in a body pertaining to a U.
>       >>       >>
>       >>       >>
>       >>       >>
>       >>       >>                         S. corporation."
>       >>       >>
>       >>       >>                         This may be what you're
>       getting at
>       >>       with your
>       >>       >> point 3 below, but
>       >>       >>             I'm not sure
>       >>       >>                         whether the problem is
>       >>       >>                         only the fact that
>       governments have
>       >>       to deal
>       >>       >> with a corporate
>       >>       >>             form/law or
>       >>       >>                         whether it is altogether
>       >>       >>                         the fact that it is a single
>       country
>       >>       law
>       >>       >> without any form of
>       >>       >>             deliberate
>       >>       >>                         endorsement by the other
>       >>       >>                         governments (who also have
>       law making
>       >>       power
>       >>       >> in their respective
>       >>       >>             country just
>       >>       >>                         as the US government).
>       >>       >>
>       >>       >>                         Assuming your reading is
>       correct, and
>       >>       if
>       >>       >> necessary complemented
>       >>       >>             by my
>       >>       >>                         remarks above, I'd be
>       >>       >>                         interested in hearing from
>       you about
>       >>       any
>       >>       >> issues you may see with
>       >>       >>             the BR gov
>       >>       >>                         comments.
>       >>       >>                         Thanks,
>       >>       >>
>       >>       >>                         Mawaki
>       >>       >>
>       >>       >>                         >
>       >>       >>                         > 3. ICANN doesn't have to
>       change its
>       >>       form,
>       >>       >> but it needs a form
>       >>       >>             where
>       >>       >>                         governments are comfortable.
>       >>       >>                         >
>       >>       >>                         > (And, as it happens, the
>       corporate
>       >>       form is
>       >>       >> not such a
>       >>       >>             form....)
>       >>       >>                         >
>       >>       >>                         >
>       >>       >>                         > What am I missing?
>       >>       >>                         >
>       >>       >>                         >
>       >>       >>                         >
>       >>       >>                         > On Sat, 6 Jun 2015, Carlos
>       A.
>       >>       Afonso wrote:
>       >>       >>                         >
>       >>       >>                         >> For the ones who are
>       following the
>       >>       IANA
>       >>       >> transition process:
>       >>       >>             attached
>       >>       >>                         >> please find the comments
>       posted by
>       >>       the
>       >>       >> government of Brazil
>       >>       >>             on June 03,
>       >>       >>                         >> 2015, in response to the
>       call for
>       >>       public
>       >>       >> comments on the
>       >>       >>                         >> CCWG-Accountability
>       Initial Draft
>       >>       Proposal.
>       >>       >>                         >>
>       >>       >>                         >> I generally agree with
>       the
>       >>       comments.
>       >>       >>                         >>
>       >>       >>                         >> fraternal regards
>       >>       >>                         >>
>       >>       >>                         >> --c.a.
>       >>       >>                         >>
>       >>       >>                         >
>       >>       >>                         > --
>       >>       >>                         > A. Michael Froomkin,
>       http://law.tm
>       >>       >>                         > Laurie Silvers & Mitchell
>       >>       Rubenstein
>       >>       >> Distinguished Professor
>       >>       >>             of Law
>       >>       >>                         > Editor, Jotwell: The
>       Journal of
>       >>       Things We
>       >>       >> Like (Lots),
>       >>       >>             jotwell.com
>       >>       >>                         > Program Chair, We Robot
>       2016 | +1
>       >>       (305)
>       >>       >> 284-4285 |
>       >>       >>             froomkin at law.tm
>       >>       >>                         > U. Miami School of Law,
>       P.O. Box
>       >>       248087,
>       >>       >> Coral Gables, FL
>       >>       >>             33124 USA
>       >>       >>                         >                       
>        -->It's
>       >>       warm here.<--
>       >>       >>                         >
>       >>       >>
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>        ____________________________________________________________
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>       >
>       > --
>       > A. Michael Froomkin, http://law.tm
>       > Laurie Silvers & Mitchell Rubenstein Distinguished Professor
>       of Law
>       > Editor, Jotwell: The Journal of Things We Like (Lots), 
>       jotwell.com
>       > Program Chair, We Robot 2016 | +1 (305) 284-4285 | 
>       froomkin at law.tm
>       > U. Miami School of Law, P.O. Box 248087, Coral Gables, FL
>       33124 USA
>       >                         -->It's warm here.<--
>       >
>       > ____________________________________________________________
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-- 
A. Michael Froomkin, http://law.tm
Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
                         -->It's warm here.<--
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From salanieta.tamanikaiwaimaro at gmail.com  Wed Jun 10 15:47:37 2015
From: salanieta.tamanikaiwaimaro at gmail.com (Salanieta T. Tamanikaiwaimaro)
Date: Thu, 11 Jun 2015 07:47:37 +1200
Subject: [governance] Parallels Between Our Oceans and Internet
 Governance #LawOfTheSea #InternetGovernance #Oceans #WorldOceansDay
 #GlobalSubmarineCables
In-Reply-To: <alpine.LRH.2.00.1506101125590.8853@post.law.miami.edu>
References: <CAJwbTiBGvA6wVr-6UUsWLN6JnD_Wm68R5urbPkS7GoqSoLMVPg@mail.gmail.com>
	<alpine.LRH.2.00.1506101047020.8188@post.law.miami.edu>
	<E1Z2hXO-0000Qn-LC@igcaucus.org>
	<alpine.LRH.2.00.1506101125590.8853@post.law.miami.edu>
Message-ID: <CAJwbTiDiHghPKAjeUn1zODqEn48tA2-1h6RWDPtaCy92mSPb0Q@mail.gmail.com>

On Thu, Jun 11, 2015 at 3:26 AM, Michael Froomkin - U.Miami School of Law <
froomkin at law.miami.edu> wrote:

> [Michael Froomkin] : Yes, I've wondered about writing a sequel....
>
>
>
>  At 10:49 10/06/2015, you wrote:
>>
>>> [Michael Froomkin] :You might be amused by my essay "What the Law of the
>>> Sea Teaches Us About the Regulation of the Information Ocean"
>>>
>>
>> [Daniel Pimienta] :Provocating, amusing but also frightnening sense
>> making analogy...
>>
>> The temptation is strong to extend the analogy to the limits and say that
>> the last decenny evolution of the Internet as an information ocean is the
>> one from artesanal fisheries (with little harm to marine life) to
>> industrial fisheries (a terrible disaster for marine life e.g. our personal
>> information) .... and big data fisheries (deep sea) a fatal situation for
>> many species (e.g. a killer for our privacy).
>>
>> [Sala]: Yes thanks for the link to your essay - enjoyed reading it.
Michael you should consider writing a sequel. I agree with you Daniel, it's
a tad frightening

>
>>
>>
>>
> --
> A. Michael Froomkin, http://law.tm
> Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
> Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
> Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
>                         -->It's warm here.<--
>
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-- 

*Salanieta Tamanikaiwaimaro aka Sala T*

*P. O. Box 17862*

*Suva*


*Republic of Fiji*

*Cell: +679 7656770; *

*Home: +679 3362003*
*Twitter: @SalanietaT*




*"You will never do anything in this world without courage. It is the
greatest quality of the mind next to honour." Aristotle*
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From seth.p.johnson at gmail.com  Wed Jun 10 16:15:40 2015
From: seth.p.johnson at gmail.com (Seth Johnson)
Date: Wed, 10 Jun 2015 16:15:40 -0400
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <CACTo+v89idk43xf9+8GuwtuxfKD=h7QDay6KsDN-rzswRAETAQ@mail.gmail.com>
References: <557378D2.6030503@cafonso.ca> <alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu>
 <CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com>
 <alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu> <5576ED01.9010606@itforchange.net>
 <alpine.LRH.2.00.1506090955160.12194@post.law.miami.edu> <55770298.20609@itforchange.net>
 <alpine.LRH.2.00.1506091131280.12194@post.law.miami.edu> <557802CE.4080505@itforchange.net>
 <CAOz-jXSR0tQFx8RV4Rtw_O=RbsHSNnRwQbZCsYA-9QTXBV-cnQ@mail.gmail.com>
 <alpine.LRH.2.00.1506101025020.8188@post.law.miami.edu> <CAJkfFByPDZj=6erciGUHiyAtCqSCSrpB1HQUCdGfm3QuMM2iTA@mail.gmail.com>
 <CACTo+v89idk43xf9+8GuwtuxfKD=h7QDay6KsDN-rzswRAETAQ@mail.gmail.com>
Message-ID: <CAJkfFBwSGPfkSiKG_-OBSceua1aohek5R2Vf6nu+jhNT2dC5bQ@mail.gmail.com>

On Wed, Jun 10, 2015 at 2:51 PM, Mawaki Chango <kichango at gmail.com> wrote:
> Simple and maybe trivial question, again (since my previous one about
> delegation hasn't found a taker.)
>
> Scenario 1*: I am a citizen of Togo, quite a small country sitting on the
> belly of Africa to the west (you may check our macro economic indicators in
> the CIA Facebook or from the World Bank online sources.) I am a domain name
> registrant. In year 2018 ICANN makes a decision, later upheld by the
> conflict resolution mechanism in place, but which I think violates my
> fundamental rights as I understand them by any international standards. I am
> even pretty convinced that I might win the case in a US court based on the
> documentation available /jurisprudence in that country. Problem is, I have
> no access to the institutional resources that would allow me to use the US
> judicial system as a plaintiff, much less the financial resources it would
> take to get a lawyer to represent my interests.
>
> Is that -- the need for everybody to be equal before the law, in practice,
> and have their rights equally secured, -- in your view, a problem worthy of
> our attention? If so how can we address it.


It is.  But no, you would not have recourse to US courts.  The problem
for the international arena is that nobody has that "trump card"
recourse that keeps governments in check *other than* those who have a
claim that their own government is doing or allowing things to happen
that violate their own fundamental rights as a citizen.  The kind of
rights you get internationally are really almost what we call
statutory rights -- the problem being that the "legislature" can
always rewrite those kinds of rights.  Or, since in fact going and
revising a treaty provision regarding rights poses some political
difficulty, what you'll see more often is that the rights expressed in
treaties have no more weight against things like "national interests"
or "national security" or the "war on" x, y, and z -- than a
"balancing standard."  Governments can well do whatever they say is
necessary (like vacuum up all communications for surveillance, or for,
hey, regular spying) for their national interests and they essentially
just "bear in mind" whatever rights are expressed in treaties.  And no
judge in an ostensible international tribunal can really simply cancel
a treaty the way they can an unconstitutional law in a national
context (without a clear founding act prior to the government, where
the people(s) claim their priority and authorize government(s) to
proceed only under certain limits).  Treaties are agreements among
governments, so what the governments "meant" is what you have to
deliberate over in interpreting the treaties -- not over whether the
people have rights regardless of the governments' intention in the
treaty.  A judge would at best weigh treaty elements and try to
articulate how to settle all parts without saying any part is
"unconstitutional."  The problem is how to get the closest you can to
that kind of a "trump card" standing for fundamental rights.

An ostensible "constitution" among governments (like the ITU's) has
the same problem.  In general, the way the real claim of priority of
the people and their rights happens is when the people self-evidently
act to fill in the gap when a government is rendered illegitimate (or
overthrown): acting independent of the pre-established government to
select delegates to their own constitutional convention, draft a
constitution, and then ratify it -- they thereby set a definitive
historical register of the people setting limits that the government
must thenceforth operate within to be legitimate.  This is called the
"constituent power."  Historians point at Massachusetts as the first
US colony/state to exercise the consttuent power that way -- when the
towns rejected the state constitution the state legislature had
written for them and insisted on having their own constitutional
process.  It was done by similar principles for the US federal
constitution.  That's how you get a fundamental right "trump card."

If you have that, and it's exercised a few times well or for a while,
then you have a situation where goverments are in check -- they don't
overreach too obviously, or they test the boundaries but they get
trumped by a judiciary that's rooted that way.

You posed the question of equal rights before the law, in the
international context.  I certainly do not advocate a global
revolution where all the people(s) seize a moment to stop their
governments and tell them how they may all proceed.

What I have tended to suggest is approaches that can be interim
measures that tend towards the principles that we want to have in
play, but which we can't yet quite have in play.

One approach that seems like a way towards that kind of conception
might be: Imagine a bicameral "House of Rights" or more narrowly an
"International Internet Communications Rights Forum."  It doesn't need
to say "Rights," though that's the point, so maybe call it an
"Internet Stewards House."  This is modeled like a legislature, with a
house to represent countries equally, and another house to represent
populations proportionally -- except it's not empowered to write law
(or treaties), but rather to play the role of voting to *veto* acts of
other (or some one or few other) intergovernmental bodies that
actually do start enacting binding "legislation."  You might be able
to get freedom-loving countries to endorse constructing something like
that, and while it's not as solid as court rulings that keep all
lawlike activities in check more definitively, it would be a solid
register of the priority of rights.

There are a lot of holes in that, but I think it conveys something of
the kind of concerns and how they might be approached that we should
really have in mind rather than blindly handing things off to the
international arena (which is really *always* "intergovernmental" --
governments are the entities that act there).

So, that's a sort of answer, stab at describing things properly and
with some sort of practical conception.  I don't press specific
solutions though, just describe notions that I think can give people a
better understanding of the real nature of the difficulties and
problems involved.

Ponder that; you'll think of plenty of problems with it.  But the
important thing is this is a far more real characterization of the
situation.  And I describe an idea like this solely to set a proper
stage for talking about things with a better sense of what's going on.
Take it as a brainstorm.  But also take it as a reality check and a
call and challenge to try to define and understand the situation
properly and well.

(The above line of exposition talks mostly about governmental-related
issues.  The issues brought by the corporate form are a whole other
area that also needs fuller appreciation.  And really, we most want
not to be so governmental [even those of us stressing the validity of
the role of government]; we want to just build our Internet and let
that be mostly a discussion of how to solve problems in a technical
way and one where our rights aren't on the line.)

See what you think of that.


Seth

> Thanks
>
> (*) I only have one scenario for now but I'm numbering #1 just in case
> others come up later in the discussion.
>
> /Brought to you by Mawaki's droid agent
>
> On Jun 10, 2015 3:57 PM, "Seth Johnson" <seth.p.johnson at gmail.com> wrote:
>>
>> I believe the most important focus is on the question of how to
>> install effective fundamental liberties limits in the context of an
>> international political forum.  That's how you can hope to maintain
>> the type of stewardship context we want associated with a medium of
>> communication.  The presence of recourse of that sort -- related to
>> being based in a national context -- is one of the main reasons why
>> ICANN has not gone further off the rails.  Same as for government in
>> general in such a national context: we don't get the government
>> meddling specifically because the relationship to the national context
>> (via the bare presence of NTIA) means the people (at least of the US)
>> have recourse against it if it does.
>>
>> Keep in mind that one of the chief reasons why Obama (and his
>> predecessor) have gone off the rails with surveillance and other
>> fundamental rights violations is because they have the notion that the
>> international arena provides means to act that way without the
>> recourse we have against it domestically.  There's still the problem
>> of laundering the surveillance by having private corporations (whether
>> telco or app) do it on the government's behalf.  But we see an effort
>> at long last to try to "legitimize" what they're doing that way at
>> least (more apparent effort to not violate citizens in the domestic
>> sphere), because we finally got standing in the courts, and
>> documentation that was taken seriously via Snowden.  Still just
>> domestic, so that doesn't answer general concerns, but this should
>> highlight the nature of the problem.  You don't actually have
>> fundamental rights in the international arena, no matter how many
>> human rights treaties you pass.  That's not what secures rights
>> against acts of governments.
>>
>> Note that this is stuff the UN has been utterly clueless about for
>> years and years and years, along with many followers-on.  And I think
>> in general the parties who have been acting in the international arena
>> like it that way.  We, the people(s), are really the ones to bring it
>> into the discourse in a real way, now that we are here in proceedings
>> that deign to appear to engage us substantively in international
>> policy.
>>
>>
>> Seth
>>
>> On Wed, Jun 10, 2015 at 10:36 AM, Michael Froomkin - U.Miami School of
>> Law <froomkin at law.miami.edu> wrote:
>> > On Wed, 10 Jun 2015, Chris Prince Udochukwu Njoku wrote:
>> >
>> >>
>> >> Parminder is emphasizing a true point. An organization which represents
>> >> the
>> >> interests of many nations, though located in one nation (as it must be)
>> >> must
>> >> not be subjected to laws that ought to be (and are) for national
>> >
>> >
>> > It is, I think, possible to act as a trustee of international interests
>> > while still having accountability rooted in national law.  It may not be
>> > possible to accommodate the desires of governments to, in effect, serve
>> > directly on the governing body given the view of e.g. the Brazilian
>> > government that this is unacceptable subordination to another state, but
>> > some may see that as a feature rather than a bug.
>> >
>> >
>> >> organizations. This should be the definition of international
>> >> jurisdiction
>> >> here. If the host nation's laws don't actually accommodate the
>> >> multinational
>> >> stakeholding nature of the organization, it's a ripe clue to the need
>> >> for
>> >> relocation to a place that is more friendly to the organization's
>> >> operations.
>> >>
>> >
>> > The above contains a term that (to a lawyer) has multiple possible
>> > meanings.
>> > The traditional way to " accommodate the multinational ... nature" of an
>> > organization is to incorporate it in Switzerland, and have no effective
>> > supervision.  FIFA.  IOC.  No thanks.
>> >
>> > So I would ask, what is the threat model here?  What is a (mildly
>> > realistic)
>> > example of a scenario in which one fears the entity will do something
>> > legitimate and a national court (of the US, Canada, the nation of your
>> > choice) would have an appreciable chance of blocking it?  I would note,
>> > for
>> > example, that the only time I can think of that a US court overruled
>> > ICANN
>> > was when it froze out one of its own directors because the staff
>> > disagreed
>> > with his views.  That violated California law empowering directors not
>> > to
>> > mention any sense of natural justice.  The result was not only just, it
>> > was
>> > necessary.  And it is Exhibit A as to why we cannot simply trust in
>> > ICANN,
>> > or New New Co's, good faith.
>> >
>> > In other words, I submit that national court supervision in an
>> > appropriate
>> > and democratic jurisdiction is far, far more likely to produce good
>> > outcomes
>> > than bad ones, while the removal of this valuable check is almost
>> > certain to
>> > lead to difficulties.  What is more, those difficulties will not be
>> > prevented by having the body be "international" for any currently known
>> > meaning of the term.
>> >
>> > Contrary to other messages in this thread, I do not believe that there
>> > is
>> > much in the way of effective monitoring of many multi-national treaty
>> > bodies
>> > other than by action of the member states.  No one else has much real
>> > leverage over WIPO, GATT, you name it.  NGOs have some moral and
>> > intellectual suasion, but some of their clout also comes from the fact
>> > that
>> > it influences or might influence the members.
>> >
>> > I prefer to attempt to engineer a much surer means of dealing with major
>> > and
>> > substantially foreseeable problems.
>> >
>> >
>> >> On Jun 10, 2015 11:27 AM, "parminder" <parminder at itforchange.net>
>> >> wrote:
>> >>
>> >>
>> >>       On Tuesday 09 June 2015 09:09 PM, Michael Froomkin - U.Miami
>> >>       School of
>> >>       Law wrote:
>> >>       > On Tue, 9 Jun 2015, parminder wrote:
>> >>       >
>> >>       >> Are you saying that it is not possible for ICANN to undertake
>> >>       the
>> >>       >> functions that it needs to
>> >>       >> undertake while being an international institution
>> >>       incorporated under
>> >>       >> international law, and free
>> >>       >> from any countries jurisdiction in terms of its basic
>> >>       governance
>> >>       >> functions? I just want to be clear.
>> >>       >
>> >>       > I don't know what an "an international institution
>> >>       incorporated under
>> >>       > international law" is except bodies like FIFA (under Swiss
>> >>       law), or UN
>> >>       > bodies, or sui generis treaty bodies.  It is certainly
>> >>       *possible* for
>> >>       > ICANN to have any of those statuses and to "function"; as far
>> >>       as I can
>> >>       > tell, however, it's just not possible to build in meaningful
>> >>       > accountability in those structures.
>> >>
>> >>       There are of course problems and issues everywhere, but it can
>> >>       hardly be
>> >>       said that UN and/or treaty bodies work without meaningful
>> >>       accountability. Further, any new international treaty/ law
>> >>       establishing
>> >>       a new body - an really international ICANN for instance - can
>> >>       write all
>> >>       the accountability method it or we want to have written in it.
>> >>       >
>> >>       > There is no general international law of incorporation of
>> >>       which I am
>> >>       > aware.  Corporate (formation) law is all national law.  That
>> >>       is the
>> >>       > reality that must be confronted.  There is no place I can go
>> >>       to get an
>> >>       > international corporate charter, and good thing too - why
>> >>       should I be
>> >>       > able to exempt myself from national law?
>> >>
>> >>       This hits a fundamental issue - I see ICANN, in its ideal form,
>> >>       as a
>> >>       governance body, since it does governance functions, and not as
>> >>       a
>> >>       private corporation. So we need a new international treaty
>> >>       sanctifying
>> >>       ICANN as a global governance body - with its basic forms largely
>> >>       unchanged, with new accountability means (including judicial
>> >>       accountability) and not ways to be able incorporate a private
>> >>       kind of an
>> >>       entity outside national laws, which is admittedly both very
>> >>       difficult,
>> >>       and rather undesirable.
>> >>
>> >>       parminder
>> >>
>> >>       >
>> >>       >>
>> >>       >> If so, that would be an interesting assertion. Now, I am sure
>> >>       this is
>> >>       >> not true. However, I am not an
>> >>       >> international legal expert and not able to right now build
>> >>       and
>> >>       >> present the whole scenario for you on
>> >>       >> how it can be done. I am sure there are a number of
>> >>       international
>> >>       >> organisations that do different
>> >>       >> kind of complex activities and have found ways to do it under
>> >>       >> international law and jurisdiction.
>> >>       >
>> >>       > But those are in the main treaty bodies.
>> >>       >
>> >>       >> And if some new directions and evolutions are needed that can
>> >>       also be
>> >>       >> worked out (please see my last
>> >>       >> email on this count).
>> >>       >>
>> >>       >
>> >>       > Here we just disagree. I see the task as monsterously hard,
>> >>       the work
>> >>       > of a decade or more.
>> >>       >
>> >>       >> BTW it is a sad statement on the geo political economy of
>> >>       knowledge
>> >>       >> production in this area that
>> >>       >> there is not one full fledged scenario developed by anyone on
>> >>       how
>> >>       >> ICANN can undertakes its
>> >>       >> activities under international law/ jurisdiction - which I am
>> >>       pretty
>> >>       >> sure it can. Many parties,
>> >>       >> including governments have called for it, and yes I agree
>> >>       someone
>> >>       >> should come up with a full
>> >>       >> politico-legal and institutional description of how it can
>> >>       and should
>> >>       >> be done - with all the details
>> >>       >> in place. And that is the sad part of it, of how things stand
>> >>       at the
>> >>       >> global level, had now lopsided
>> >>       >> is resource distribution, all kinds of resources.
>> >>       >>
>> >>       >
>> >>       > Alas.
>> >>       >
>> >>       >> Not to shy away from responsibility - I am happy to
>> >>       collaborate with
>> >>       >> anyone if someone can out time
>> >>       >> into it.
>> >>       >>
>> >>       >> And no, it cannot be solved by any other country
>> >>       jurisdiction. Apart
>> >>       >> from it being still being wrong
>> >>       >> in principle, how would US accept that another jurisdiction
>> >>       is better
>> >>       >> than its own and accede to
>> >>       >> such a change. Accepting the patently justified fact that an
>> >>       >> international infrastructure should be
>> >>       >> governed internationally, on the other hand, is much easier .
>> >>       >>
>> >>       >
>> >>       > I would not dismiss this so quickly.  I take a substantial
>> >>       fraction of
>> >>       > the opposition to US residual control (for that is all we are
>> >>       talking
>> >>       > about) to be tied to the US's status as defacto hegemon.
>> >>       Moving ICANN
>> >>       > to another state with a strong human rights record would
>> >>       answer that
>> >>       > part of the critique.
>> >>       >
>> >>       > In my view, a bespoke international structure is actually much
>> >>       harder
>> >>       > -- it would need to be invented almost from scratch.  And it
>> >>       is bound
>> >>       > to be flawed; national rules are the result of at least
>> >>       decades if not
>> >>       > more of trial and error.
>> >>       >
>> >>       >> parminder
>> >>       >>
>> >>       >> On Tuesday 09 June 2015 07:31 PM, Michael Froomkin - U.Miami
>> >>       School
>> >>       >> of Law wrote:
>> >>       >>       I don't know what it means to say that ICANN should be
>> >>       subject
>> >>       >> to "international
>> >>       >>       jurisdiction and law".  For the relevant issues, that
>> >>       sounds
>> >>       >> like a pretty empty set.
>> >>       >>
>> >>       >>       As regards most of the sort of things one might expect
>> >>       to worry
>> >>       >> about - e.g. fidelity to
>> >>       >>       articles of incorporation - international law is
>> >>       basically
>> >>       >> silent.  And there is no
>> >>       >>       relevant jurisdiction either.  So I remain stuck in the
>> >>       >> position that there must be a
>> >>       >>       state anchor whose courts are given the job.  It does
>> >>       not of
>> >>       >> course need to be the US,
>> >>       >>       although I would note that the US courts are by
>> >>       international
>> >>       >> standards not shy and
>> >>       >>       actually fairly good at this sort of thing.
>> >>       >>
>> >>       >>       I do think, however, that it should NOT be Switzerland,
>> >>       as its
>> >>       >> courts are historically
>> >>       >>       over-deferential to international bodies - perhaps as
>> >>       part of
>> >>       >> state policy to be an
>> >>       >>       attractive location for those high-spending
>> >>       international
>> >>       >> meetings.
>> >>       >>
>> >>       >>       I'd be real happy with Canada, though.
>> >>       >>
>> >>       >>       On Tue, 9 Jun 2015, parminder wrote:
>> >>       >>
>> >>       >>
>> >>       >>
>> >>       >>             On Tuesday 09 June 2015 06:26 PM, Michael
>> >>       Froomkin -
>> >>       >> U.Miami School of Law
>> >>       >>             wrote:
>> >>       >>
>> >>       >>                   I think that bodies which do not need to
>> >>       fear
>> >>       >> supervision by
>> >>       >>             legitimate courts end up
>> >>       >>                   like FIFA. FIFA had a legal status in
>> >>       Switzerland
>> >>       >> that basically
>> >>       >>             insulated it the way
>> >>       >>                   that the Brazilian document seems to
>> >>       suggest would
>> >>       >> be what they want
>> >>       >>             for ICANN.  (It's
>> >>       >>                   also the legal status ICANN has at times
>> >>       suggested
>> >>       >> it would like.)
>> >>       >>
>> >>       >>                   The lesson of history seems unusually clear
>> >>       here.
>> >>       >>
>> >>       >>
>> >>       >>             Agree that ICANN cannot be left jurisdictionally
>> >>       >> un-supervised - that may be
>> >>       >>             even more dangerous
>> >>       >>             than the present situation. However, the right
>> >>       >> supervision or oversight is
>> >>       >>             of international
>> >>       >>             jurisdiction and law, not that of the US . This
>> >>       is what
>> >>       >> Brazil has to make
>> >>       >>             upfront as the
>> >>       >>             implication of what it is really seeking, and its
>> >>       shyness
>> >>       >> and reticence to
>> >>       >>             say so is what I noted as
>> >>       >>             surprising in an earlier email in this thread.
>> >>       Not
>> >>       >> putting out clearly what
>> >>       >>             exactly it wants would
>> >>       >>             lead to misconceptions about its position, which
>> >>       IMHO can
>> >>       >> be seen from how
>> >>       >>             Michael reads it.  I am
>> >>       >>             sure this is not how Brazil meant it - to free
>> >>       ICANN from
>> >>       >> all kinds of
>> >>       >>             jurisdictional oversight
>> >>       >>             whatsoever - but then Brazil needs to say clearly
>> >>       what is
>> >>       >> it that it wants,
>> >>       >>             and how can it can
>> >>       >>             obtained. Brazil, please come out of your
>> >>       NetMundial
>> >>       >> hangover and take
>> >>       >>             political responsibility for
>> >>       >>             what you say and seek!
>> >>       >>
>> >>       >>             parminder
>> >>       >>
>> >>       >>
>> >>       >>
>> >>       >>                   On Tue, 9 Jun 2015, Mawaki Chango wrote:
>> >>       >>
>> >>       >>
>> >>       >>                         It's good to see a law scholar
>> >>       involved in
>> >>       >> this discussion. I'll
>> >>       >>             leave it to
>> >>       >>                         the Brazilian party to
>> >>       >>                         ultimate tell whether your reading is
>> >>       correct
>> >>       >> or not. In the
>> >>       >>             meantime I'd
>> >>       >>                         volunteer the following
>> >>       >>                         comments.
>> >>       >>
>> >>       >>                         On Jun 8, 2015 10:46 PM, "Michael
>> >>       Froomkin -
>> >>       >> U.Miami School of
>> >>       >>             Law"
>> >>       >>                         <froomkin at law.miami.edu> wrote:
>> >>       >>                         >
>> >>       >>                         > Perhaps I'm misreading something,
>> >>       but I
>> >>       >> read this document to
>> >>       >>             make the
>> >>       >>                         following assertions:
>> >>       >>                         >
>> >>       >>                         > 1. All restrictions on ICANN's
>> >>       location
>> >>       >> must be removed.
>> >>       >>                         >
>> >>       >>
>> >>       >>                         And the question reopened for
>> >>       deliberation by
>> >>       >> all stakeholders,
>> >>       >>             including
>> >>       >>                         governments among others.
>> >>       >>                         Only the outcome of such deliberation
>> >>       will be
>> >>       >> fully legitimate
>> >>       >>             within the
>> >>       >>                         framework of the post-2015
>> >>       >>                         ICANN.
>> >>       >>
>> >>       >>                         > 2. ICANN does not have to leave the
>> >>       US but
>> >>       >> must be located in
>> >>       >>             a place
>> >>       >>                         where the governing law has
>> >>       >>                         certain characteristics, including
>> >>       not having
>> >>       >> the possibiliity
>> >>       >>             that courts
>> >>       >>                         overrule ICANN (or at
>> >>       >>                         least the IRP).
>> >>       >>                         >
>> >>       >>                         > (And, as it happens, the US is not
>> >>       such a
>> >>       >> place....)
>> >>       >>                         >
>> >>       >>
>> >>       >>                         Not only avoiding courts overruling
>> >>       relevant
>> >>       >> outcomes of the
>> >>       >>             Internet global
>> >>       >>                         community processes,
>> >>       >>                         but also examining and resolving the
>> >>       possible
>> >>       >>             interferences/conflicts that
>> >>       >>                         might arise for
>> >>       >>                         government representatives being
>> >>       subject to a
>> >>       >> foreign country
>> >>       >>             law simply in
>> >>       >>                         the process of attending
>> >>       >>                         to their regular duties (if they were
>> >>       to be
>> >>       >> fully engaged with
>> >>       >>             ICANN).
>> >>       >>
>> >>       >>                         Quote:
>> >>       >>
>> >>       >>
>> >>       >> "From the Brazilian perspective the existing structure
>> >>       clearly imposes limits to the participation
>> >>       >>
>> >>       >>
>> >>       >>      ???of governmental representatives, as it is unlikely
>> >>       that a representative of a foreign government
>> >>       >>              w
>> >>       >>                   i
>> >>       >> ll be authorized (by its own government) to formally accept a
>> >>       position in a body pertaining to a U.
>> >>       >>
>> >>       >>
>> >>       >>
>> >>       >>                         S. corporation."
>> >>       >>
>> >>       >>                         This may be what you're getting at
>> >>       with your
>> >>       >> point 3 below, but
>> >>       >>             I'm not sure
>> >>       >>                         whether the problem is
>> >>       >>                         only the fact that governments have
>> >>       to deal
>> >>       >> with a corporate
>> >>       >>             form/law or
>> >>       >>                         whether it is altogether
>> >>       >>                         the fact that it is a single country
>> >>       law
>> >>       >> without any form of
>> >>       >>             deliberate
>> >>       >>                         endorsement by the other
>> >>       >>                         governments (who also have law making
>> >>       power
>> >>       >> in their respective
>> >>       >>             country just
>> >>       >>                         as the US government).
>> >>       >>
>> >>       >>                         Assuming your reading is correct, and
>> >>       if
>> >>       >> necessary complemented
>> >>       >>             by my
>> >>       >>                         remarks above, I'd be
>> >>       >>                         interested in hearing from you about
>> >>       any
>> >>       >> issues you may see with
>> >>       >>             the BR gov
>> >>       >>                         comments.
>> >>       >>                         Thanks,
>> >>       >>
>> >>       >>                         Mawaki
>> >>       >>
>> >>       >>                         >
>> >>       >>                         > 3. ICANN doesn't have to change its
>> >>       form,
>> >>       >> but it needs a form
>> >>       >>             where
>> >>       >>                         governments are comfortable.
>> >>       >>                         >
>> >>       >>                         > (And, as it happens, the corporate
>> >>       form is
>> >>       >> not such a
>> >>       >>             form....)
>> >>       >>                         >
>> >>       >>                         >
>> >>       >>                         > What am I missing?
>> >>       >>                         >
>> >>       >>                         >
>> >>       >>                         >
>> >>       >>                         > On Sat, 6 Jun 2015, Carlos A.
>> >>       Afonso wrote:
>> >>       >>                         >
>> >>       >>                         >> For the ones who are following the
>> >>       IANA
>> >>       >> transition process:
>> >>       >>             attached
>> >>       >>                         >> please find the comments posted by
>> >>       the
>> >>       >> government of Brazil
>> >>       >>             on June 03,
>> >>       >>                         >> 2015, in response to the call for
>> >>       public
>> >>       >> comments on the
>> >>       >>                         >> CCWG-Accountability Initial Draft
>> >>       Proposal.
>> >>       >>                         >>
>> >>       >>                         >> I generally agree with the
>> >>       comments.
>> >>       >>                         >>
>> >>       >>                         >> fraternal regards
>> >>       >>                         >>
>> >>       >>                         >> --c.a.
>> >>       >>                         >>
>> >>       >>                         >
>> >>       >>                         > --
>> >>       >>                         > A. Michael Froomkin, http://law.tm
>> >>       >>                         > Laurie Silvers & Mitchell
>> >>       Rubenstein
>> >>       >> Distinguished Professor
>> >>       >>             of Law
>> >>       >>                         > Editor, Jotwell: The Journal of
>> >>       Things We
>> >>       >> Like (Lots),
>> >>       >>             jotwell.com
>> >>       >>                         > Program Chair, We Robot 2016 | +1
>> >>       (305)
>> >>       >> 284-4285 |
>> >>       >>             froomkin at law.tm
>> >>       >>                         > U. Miami School of Law, P.O. Box
>> >>       248087,
>> >>       >> Coral Gables, FL
>> >>       >>             33124 USA
>> >>       >>                         >                         -->It's
>> >>       warm here.<--
>> >>       >>                         >
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>> > A. Michael Froomkin, http://law.tm
>> > Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
>> > Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
>> > Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
>> > U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
>> >                         -->It's warm here.<--
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From kichango at gmail.com  Wed Jun 10 16:58:23 2015
From: kichango at gmail.com (Mawaki Chango)
Date: Wed, 10 Jun 2015 20:58:23 +0000
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <alpine.LRH.2.00.1506101532320.9106@post.law.miami.edu>
References: <557378D2.6030503@cafonso.ca>
	<alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu>
	<CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com>
	<alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu>
	<5576ED01.9010606@itforchange.net>
	<alpine.LRH.2.00.1506090955160.12194@post.law.miami.edu>
	<55770298.20609@itforchange.net>
	<alpine.LRH.2.00.1506091131280.12194@post.law.miami.edu>
	<557802CE.4080505@itforchange.net>
	<CAOz-jXSR0tQFx8RV4Rtw_O=RbsHSNnRwQbZCsYA-9QTXBV-cnQ@mail.gmail.com>
	<alpine.LRH.2.00.1506101025020.8188@post.law.miami.edu>
	<CAJkfFByPDZj=6erciGUHiyAtCqSCSrpB1HQUCdGfm3QuMM2iTA@mail.gmail.com>
	<CACTo+v89idk43xf9+8GuwtuxfKD=h7QDay6KsDN-rzswRAETAQ@mail.gmail.com>
	<alpine.LRH.2.00.1506101532320.9106@post.law.miami.edu>
Message-ID: <CACTo+v-WjHYFLPbaGiWPcBTMiLZm8uawHwVCXK=wMSgS=q6E=A@mail.gmail.com>

A couple of points below, in-line.

On Jun 10, 2015 7:41 PM, "Michael Froomkin - U.Miami School of Law" <
froomkin at law.miami.edu> wrote:
>
> On Wed, 10 Jun 2015, Mawaki Chango wrote:
>
>>
>> Simple and maybe trivial question, again (since my previous one about
>> delegation hasn't found a taker.)
>
>
> Neither simple nor trivial!  Please preserve me from your hard and
important questions!
>

Not a chance! As a matter of fact, I alluded to that first question again
hoping you would magnanimously volunteer an answer, as I seem to remember
reading some of your works on delegation and/or administrative procedures
law (in the US)?

>
>>
>> Scenario 1*: I am a citizen of Togo, quite a small country sitting on the
>> belly of Africa to the west (you may check our macro economic indicators
in
>> the CIA Facebook or from the World Bank online sources.) I am a domain
name
>> registrant. In year 2018 ICANN makes a decision, later upheld by the
>> conflict resolution mechanism in place, but which I think violates my
>> fundamental rights as I understand them by any international standards.
I am
>> even pretty convinced that I might win the case in a US court based on
the
>> documentation available /jurisprudence in that country. Problem is, I
have
>> no access to the institutional resources that would allow me to use the
US
>> judicial system as a plaintiff, much less the financial resources it
would
>> take to get a lawyer to represent my interests.
>>
>> Is that -- the need for everybody to be equal before the law, in
practice,
>> and have their rights equally secured, -- in your view, a problem worthy
of
>> our attention? If so how can we address it.
>
>
>
> Sadly, most US citizens don't have those resources either (in their
private capacities).  Hence, litigation of this kind tends to rely on the
case being adopted by an NGO such as EFF or ACLU or the like that does the
legal work.  This isn't a very good solution, but it does mean that the
footing is less uneven than you might think.
>
> That said, I think this is a very good problem to worry about.  (The
economic answer would be for ICANN to offer law bounties -- like some
software firms offer bug bounties -- that it would pay if it lost a legal
case.  If they were high enough, private firms would take your case on
contingency.  While this is economically elegant, it has no traction in the
real world.)
>
> A more real solution would be for someone to set up an NGO which saw such
cases as a core part of its mission, or to endow a program at an existing
NGO.  More realistic, but still difficult to conjure out of the air.
>
> I would however note that if the system of law is 'international' then
the costs to the litigant are in practice even higher, and the
accessibility to the average citizen of even rich countries is even less.
Thus your question applies strongly in both (all?) scenarios.

Thanks for the answer. I think we're now clear about (at least some of) the
practical challenges of the status quo or similar scenarios to global
constituencies. My understanding of an "international public law" scenario
is one where governments sign off on some agreement (you may call that
treaty, I guess) for such body and related institutional processes. As a
result:

1) Governments are often represented to/within that body by one specific
department of their own (e.g., UNESCO National Commissions generally hosted
at the Education or the Communication & Culture department accessible to
citizens within the country, plus a Representative in Paris for nationals
abroad.) Those entities would be in position to help their nationals inside
and outside the country address any legitimate issue with the organization.

2) If the business of the body needed a court of its own, chances are it
will be funded by government dues so that it doesn't cost much more,
presumably, than a national case or an average cost based on some index
blah blah blah (just like the way the level of their dues is calculated...
all things that the UN is accustomed to.) Otherwise there's also the
solution of delegation/recognition of authority to national courts or some
of them distrubuted worldwide or regionally in order to litigate the issue
so that justice can be served the nearest possible to what/who we call in
French the "justiciable" (the plaintiff citizen or user.)

Anyway, being that we are dealing here with private corporate law (and at
that, in a country with a culture of litigation like no other where people
are hardly impressed by long figures with a dollar sign in front), the very
least we can hope for is more global ACLUs and EFFs (plus, why not, the law
bounties attitude from ICANN.) However, that's kind of taking chances, is
it not? Is it really the best we can do?

Mawaki
>
>
>>
>> Thanks
>>
>> (*) I only have one scenario for now but I'm numbering #1 just in case
>> others come up later in the discussion.
>>
>> /Brought to you by Mawaki's droid agent
>>
>> On Jun 10, 2015 3:57 PM, "Seth Johnson" <seth.p.johnson at gmail.com> wrote:
>>       I believe the most important focus is on the question of how to
>>       install effective fundamental liberties limits in the context of
>>       an
>>       international political forum.  That's how you can hope to
>>       maintain
>>       the type of stewardship context we want associated with a medium
>>       of
>>       communication.  The presence of recourse of that sort -- related
>>       to
>>       being based in a national context -- is one of the main reasons
>>       why
>>       ICANN has not gone further off the rails.  Same as for
>>       government in
>>       general in such a national context: we don't get the government
>>       meddling specifically because the relationship to the national
>>       context
>>       (via the bare presence of NTIA) means the people (at least of
>>       the US)
>>       have recourse against it if it does.
>>
>>       Keep in mind that one of the chief reasons why Obama (and his
>>       predecessor) have gone off the rails with surveillance and other
>>       fundamental rights violations is because they have the notion
>>       that the
>>       international arena provides means to act that way without the
>>       recourse we have against it domestically.  There's still the
>>       problem
>>       of laundering the surveillance by having private corporations
>>       (whether
>>       telco or app) do it on the government's behalf.  But we see an
>>       effort
>>       at long last to try to "legitimize" what they're doing that way
>>       at
>>       least (more apparent effort to not violate citizens in the
>>       domestic
>>       sphere), because we finally got standing in the courts, and
>>       documentation that was taken seriously via Snowden.  Still just
>>       domestic, so that doesn't answer general concerns, but this
>>       should
>>       highlight the nature of the problem.  You don't actually have
>>       fundamental rights in the international arena, no matter how
>>       many
>>       human rights treaties you pass.  That's not what secures rights
>>       against acts of governments.
>>
>>       Note that this is stuff the UN has been utterly clueless about
>>       for
>>       years and years and years, along with many followers-on.  And I
>>       think
>>       in general the parties who have been acting in the international
>>       arena
>>       like it that way.  We, the people(s), are really the ones to
>>       bring it
>>       into the discourse in a real way, now that we are here in
>>       proceedings
>>       that deign to appear to engage us substantively in international
>>       policy.
>>
>>
>>       Seth
>>
>>       On Wed, Jun 10, 2015 at 10:36 AM, Michael Froomkin - U.Miami
>>       School of
>>       Law <froomkin at law.miami.edu> wrote:
>>       > On Wed, 10 Jun 2015, Chris Prince Udochukwu Njoku wrote:
>>       >
>>       >>
>>       >> Parminder is emphasizing a true point. An organization which
>>       represents
>>       >> the
>>       >> interests of many nations, though located in one nation (as
>>       it must be)
>>       >> must
>>       >> not be subjected to laws that ought to be (and are) for
>>       national
>>       >
>>       >
>>       > It is, I think, possible to act as a trustee of international
>>       interests
>>       > while still having accountability rooted in national law.  It
>>       may not be
>>       > possible to accommodate the desires of governments to, in
>>       effect, serve
>>       > directly on the governing body given the view of e.g. the
>>       Brazilian
>>       > government that this is unacceptable subordination to another
>>       state, but
>>       > some may see that as a feature rather than a bug.
>>       >
>>       >
>>       >> organizations. This should be the definition of international
>>       jurisdiction
>>       >> here. If the host nation's laws don't actually accommodate
>>       the
>>       >> multinational
>>       >> stakeholding nature of the organization, it's a ripe clue to
>>       the need for
>>       >> relocation to a place that is more friendly to the
>>       organization's
>>       >> operations.
>>       >>
>>       >
>>       > The above contains a term that (to a lawyer) has multiple
>>       possible meanings.
>>       > The traditional way to " accommodate the multinational ...
>>       nature" of an
>>       > organization is to incorporate it in Switzerland, and have no
>>       effective
>>       > supervision.  FIFA.  IOC.  No thanks.
>>       >
>>       > So I would ask, what is the threat model here?  What is a
>>       (mildly realistic)
>>       > example of a scenario in which one fears the entity will do
>>       something
>>       > legitimate and a national court (of the US, Canada, the nation
>>       of your
>>       > choice) would have an appreciable chance of blocking it?  I
>>       would note, for
>>       > example, that the only time I can think of that a US court
>>       overruled ICANN
>>       > was when it froze out one of its own directors because the
>>       staff disagreed
>>       > with his views.  That violated California law empowering
>>       directors not to
>>       > mention any sense of natural justice.  The result was not only
>>       just, it was
>>       > necessary.  And it is Exhibit A as to why we cannot simply
>>       trust in ICANN,
>>       > or New New Co's, good faith.
>>       >
>>       > In other words, I submit that national court supervision in an
>>       appropriate
>>       > and democratic jurisdiction is far, far more likely to produce
>>       good outcomes
>>       > than bad ones, while the removal of this valuable check is
>>       almost certain to
>>       > lead to difficulties.  What is more, those difficulties will
>>       not be
>>       > prevented by having the body be "international" for any
>>       currently known
>>       > meaning of the term.
>>       >
>>       > Contrary to other messages in this thread, I do not believe
>>       that there is
>>       > much in the way of effective monitoring of many multi-national
>>       treaty bodies
>>       > other than by action of the member states.  No one else has
>>       much real
>>       > leverage over WIPO, GATT, you name it.  NGOs have some moral
>>       and
>>       > intellectual suasion, but some of their clout also comes from
>>       the fact that
>>       > it influences or might influence the members.
>>       >
>>       > I prefer to attempt to engineer a much surer means of dealing
>>       with major and
>>       > substantially foreseeable problems.
>>       >
>>       >
>>       >> On Jun 10, 2015 11:27 AM, "parminder"
>>       <parminder at itforchange.net> wrote:
>>       >>
>>       >>
>>       >>       On Tuesday 09 June 2015 09:09 PM, Michael Froomkin -
>>       U.Miami
>>       >>       School of
>>       >>       Law wrote:
>>       >>       > On Tue, 9 Jun 2015, parminder wrote:
>>       >>       >
>>       >>       >> Are you saying that it is not possible for ICANN to
>>       undertake
>>       >>       the
>>       >>       >> functions that it needs to
>>       >>       >> undertake while being an international institution
>>       >>       incorporated under
>>       >>       >> international law, and free
>>       >>       >> from any countries jurisdiction in terms of its
>>       basic
>>       >>       governance
>>       >>       >> functions? I just want to be clear.
>>       >>       >
>>       >>       > I don't know what an "an international institution
>>       >>       incorporated under
>>       >>       > international law" is except bodies like FIFA (under
>>       Swiss
>>       >>       law), or UN
>>       >>       > bodies, or sui generis treaty bodies.  It is
>>       certainly
>>       >>       *possible* for
>>       >>       > ICANN to have any of those statuses and to
>>       "function"; as far
>>       >>       as I can
>>       >>       > tell, however, it's just not possible to build in
>>       meaningful
>>       >>       > accountability in those structures.
>>       >>
>>       >>       There are of course problems and issues everywhere, but
>>       it can
>>       >>       hardly be
>>       >>       said that UN and/or treaty bodies work without
>>       meaningful
>>       >>       accountability. Further, any new international treaty/
>>       law
>>       >>       establishing
>>       >>       a new body - an really international ICANN for instance
>>       - can
>>       >>       write all
>>       >>       the accountability method it or we want to have written
>>       in it.
>>       >>       >
>>       >>       > There is no general international law of
>>       incorporation of
>>       >>       which I am
>>       >>       > aware.  Corporate (formation) law is all national
>>       law.  That
>>       >>       is the
>>       >>       > reality that must be confronted.  There is no place I
>>       can go
>>       >>       to get an
>>       >>       > international corporate charter, and good thing too -
>>       why
>>       >>       should I be
>>       >>       > able to exempt myself from national law?
>>       >>
>>       >>       This hits a fundamental issue - I see ICANN, in its
>>       ideal form,
>>       >>       as a
>>       >>       governance body, since it does governance functions,
>>       and not as
>>       >>       a
>>       >>       private corporation. So we need a new international
>>       treaty
>>       >>       sanctifying
>>       >>       ICANN as a global governance body - with its basic
>>       forms largely
>>       >>       unchanged, with new accountability means (including
>>       judicial
>>       >>       accountability) and not ways to be able incorporate a
>>       private
>>       >>       kind of an
>>       >>       entity outside national laws, which is admittedly both
>>       very
>>       >>       difficult,
>>       >>       and rather undesirable.
>>       >>
>>       >>       parminder
>>       >>
>>       >>       >
>>       >>       >>
>>       >>       >> If so, that would be an interesting assertion. Now,
>>       I am sure
>>       >>       this is
>>       >>       >> not true. However, I am not an
>>       >>       >> international legal expert and not able to right now
>>       build
>>       >>       and
>>       >>       >> present the whole scenario for you on
>>       >>       >> how it can be done. I am sure there are a number of
>>       >>       international
>>       >>       >> organisations that do different
>>       >>       >> kind of complex activities and have found ways to do
>>       it under
>>       >>       >> international law and jurisdiction.
>>       >>       >
>>       >>       > But those are in the main treaty bodies.
>>       >>       >
>>       >>       >> And if some new directions and evolutions are needed
>>       that can
>>       >>       also be
>>       >>       >> worked out (please see my last
>>       >>       >> email on this count).
>>       >>       >>
>>       >>       >
>>       >>       > Here we just disagree. I see the task as monsterously
>>       hard,
>>       >>       the work
>>       >>       > of a decade or more.
>>       >>       >
>>       >>       >> BTW it is a sad statement on the geo political
>>       economy of
>>       >>       knowledge
>>       >>       >> production in this area that
>>       >>       >> there is not one full fledged scenario developed by
>>       anyone on
>>       >>       how
>>       >>       >> ICANN can undertakes its
>>       >>       >> activities under international law/ jurisdiction -
>>       which I am
>>       >>       pretty
>>       >>       >> sure it can. Many parties,
>>       >>       >> including governments have called for it, and yes I
>>       agree
>>       >>       someone
>>       >>       >> should come up with a full
>>       >>       >> politico-legal and institutional description of how
>>       it can
>>       >>       and should
>>       >>       >> be done - with all the details
>>       >>       >> in place. And that is the sad part of it, of how
>>       things stand
>>       >>       at the
>>       >>       >> global level, had now lopsided
>>       >>       >> is resource distribution, all kinds of resources.
>>       >>       >>
>>       >>       >
>>       >>       > Alas.
>>       >>       >
>>       >>       >> Not to shy away from responsibility - I am happy to
>>       >>       collaborate with
>>       >>       >> anyone if someone can out time
>>       >>       >> into it.
>>       >>       >>
>>       >>       >> And no, it cannot be solved by any other country
>>       >>       jurisdiction. Apart
>>       >>       >> from it being still being wrong
>>       >>       >> in principle, how would US accept that another
>>       jurisdiction
>>       >>       is better
>>       >>       >> than its own and accede to
>>       >>       >> such a change. Accepting the patently justified fact
>>       that an
>>       >>       >> international infrastructure should be
>>       >>       >> governed internationally, on the other hand, is much
>>       easier .
>>       >>       >>
>>       >>       >
>>       >>       > I would not dismiss this so quickly.  I take a
>>       substantial
>>       >>       fraction of
>>       >>       > the opposition to US residual control (for that is
>>       all we are
>>       >>       talking
>>       >>       > about) to be tied to the US's status as defacto
>>       hegemon.
>>       >>       Moving ICANN
>>       >>       > to another state with a strong human rights record
>>       would
>>       >>       answer that
>>       >>       > part of the critique.
>>       >>       >
>>       >>       > In my view, a bespoke international structure is
>>       actually much
>>       >>       harder
>>       >>       > -- it would need to be invented almost from scratch.
>>       And it
>>       >>       is bound
>>       >>       > to be flawed; national rules are the result of at
>>       least
>>       >>       decades if not
>>       >>       > more of trial and error.
>>       >>       >
>>       >>       >> parminder
>>       >>       >>
>>       >>       >> On Tuesday 09 June 2015 07:31 PM, Michael Froomkin -
>>       U.Miami
>>       >>       School
>>       >>       >> of Law wrote:
>>       >>       >>       I don't know what it means to say that ICANN
>>       should be
>>       >>       subject
>>       >>       >> to "international
>>       >>       >>       jurisdiction and law".  For the relevant
>>       issues, that
>>       >>       sounds
>>       >>       >> like a pretty empty set.
>>       >>       >>
>>       >>       >>       As regards most of the sort of things one
>>       might expect
>>       >>       to worry
>>       >>       >> about - e.g. fidelity to
>>       >>       >>       articles of incorporation - international law
>>       is
>>       >>       basically
>>       >>       >> silent.  And there is no
>>       >>       >>       relevant jurisdiction either.  So I remain
>>       stuck in the
>>       >>       >> position that there must be a
>>       >>       >>       state anchor whose courts are given the job.
>>       It does
>>       >>       not of
>>       >>       >> course need to be the US,
>>       >>       >>       although I would note that the US courts are
>>       by
>>       >>       international
>>       >>       >> standards not shy and
>>       >>       >>       actually fairly good at this sort of thing.
>>       >>       >>
>>       >>       >>       I do think, however, that it should NOT be
>>       Switzerland,
>>       >>       as its
>>       >>       >> courts are historically
>>       >>       >>       over-deferential to international bodies -
>>       perhaps as
>>       >>       part of
>>       >>       >> state policy to be an
>>       >>       >>       attractive location for those high-spending
>>       >>       international
>>       >>       >> meetings.
>>       >>       >>
>>       >>       >>       I'd be real happy with Canada, though.
>>       >>       >>
>>       >>       >>       On Tue, 9 Jun 2015, parminder wrote:
>>       >>       >>
>>       >>       >>
>>       >>       >>
>>       >>       >>             On Tuesday 09 June 2015 06:26 PM,
>>       Michael
>>       >>       Froomkin -
>>       >>       >> U.Miami School of Law
>>       >>       >>             wrote:
>>       >>       >>
>>       >>       >>                   I think that bodies which do not
>>       need to
>>       >>       fear
>>       >>       >> supervision by
>>       >>       >>             legitimate courts end up
>>       >>       >>                   like FIFA. FIFA had a legal status
>>       in
>>       >>       Switzerland
>>       >>       >> that basically
>>       >>       >>             insulated it the way
>>       >>       >>                   that the Brazilian document seems
>>       to
>>       >>       suggest would
>>       >>       >> be what they want
>>       >>       >>             for ICANN.  (It's
>>       >>       >>                   also the legal status ICANN has at
>>       times
>>       >>       suggested
>>       >>       >> it would like.)
>>       >>       >>
>>       >>       >>                   The lesson of history seems
>>       unusually clear
>>       >>       here.
>>       >>       >>
>>       >>       >>
>>       >>       >>             Agree that ICANN cannot be left
>>       jurisdictionally
>>       >>       >> un-supervised - that may be
>>       >>       >>             even more dangerous
>>       >>       >>             than the present situation. However, the
>>       right
>>       >>       >> supervision or oversight is
>>       >>       >>             of international
>>       >>       >>             jurisdiction and law, not that of the US
>>       . This
>>       >>       is what
>>       >>       >> Brazil has to make
>>       >>       >>             upfront as the
>>       >>       >>             implication of what it is really
>>       seeking, and its
>>       >>       shyness
>>       >>       >> and reticence to
>>       >>       >>             say so is what I noted as
>>       >>       >>             surprising in an earlier email in this
>>       thread.
>>       >>       Not
>>       >>       >> putting out clearly what
>>       >>       >>             exactly it wants would
>>       >>       >>             lead to misconceptions about its
>>       position, which
>>       >>       IMHO can
>>       >>       >> be seen from how
>>       >>       >>             Michael reads it.  I am
>>       >>       >>             sure this is not how Brazil meant it -
>>       to free
>>       >>       ICANN from
>>       >>       >> all kinds of
>>       >>       >>             jurisdictional oversight
>>       >>       >>             whatsoever - but then Brazil needs to
>>       say clearly
>>       >>       what is
>>       >>       >> it that it wants,
>>       >>       >>             and how can it can
>>       >>       >>             obtained. Brazil, please come out of
>>       your
>>       >>       NetMundial
>>       >>       >> hangover and take
>>       >>       >>             political responsibility for
>>       >>       >>             what you say and seek!
>>       >>       >>
>>       >>       >>             parminder
>>       >>       >>
>>       >>       >>
>>       >>       >>
>>       >>       >>                   On Tue, 9 Jun 2015, Mawaki Chango
>>       wrote:
>>       >>       >>
>>       >>       >>
>>       >>       >>                         It's good to see a law
>>       scholar
>>       >>       involved in
>>       >>       >> this discussion. I'll
>>       >>       >>             leave it to
>>       >>       >>                         the Brazilian party to
>>       >>       >>                         ultimate tell whether your
>>       reading is
>>       >>       correct
>>       >>       >> or not. In the
>>       >>       >>             meantime I'd
>>       >>       >>                         volunteer the following
>>       >>       >>                         comments.
>>       >>       >>
>>       >>       >>                         On Jun 8, 2015 10:46 PM,
>>       "Michael
>>       >>       Froomkin -
>>       >>       >> U.Miami School of
>>       >>       >>             Law"
>>       >>       >>                         <froomkin at law.miami.edu>
>>       wrote:
>>       >>       >>                         >
>>       >>       >>                         > Perhaps I'm misreading
>>       something,
>>       >>       but I
>>       >>       >> read this document to
>>       >>       >>             make the
>>       >>       >>                         following assertions:
>>       >>       >>                         >
>>       >>       >>                         > 1. All restrictions on
>>       ICANN's
>>       >>       location
>>       >>       >> must be removed.
>>       >>       >>                         >
>>       >>       >>
>>       >>       >>                         And the question reopened
>>       for
>>       >>       deliberation by
>>       >>       >> all stakeholders,
>>       >>       >>             including
>>       >>       >>                         governments among others.
>>       >>       >>                         Only the outcome of such
>>       deliberation
>>       >>       will be
>>       >>       >> fully legitimate
>>       >>       >>             within the
>>       >>       >>                         framework of the post-2015
>>       >>       >>                         ICANN.
>>       >>       >>
>>       >>       >>                         > 2. ICANN does not have to
>>       leave the
>>       >>       US but
>>       >>       >> must be located in
>>       >>       >>             a place
>>       >>       >>                         where the governing law has
>>       >>       >>                         certain characteristics,
>>       including
>>       >>       not having
>>       >>       >> the possibiliity
>>       >>       >>             that courts
>>       >>       >>                         overrule ICANN (or at
>>       >>       >>                         least the IRP).
>>       >>       >>                         >
>>       >>       >>                         > (And, as it happens, the
>>       US is not
>>       >>       such a
>>       >>       >> place....)
>>       >>       >>                         >
>>       >>       >>
>>       >>       >>                         Not only avoiding courts
>>       overruling
>>       >>       relevant
>>       >>       >> outcomes of the
>>       >>       >>             Internet global
>>       >>       >>                         community processes,
>>       >>       >>                         but also examining and
>>       resolving the
>>       >>       possible
>>       >>       >>             interferences/conflicts that
>>       >>       >>                         might arise for
>>       >>       >>                         government representatives
>>       being
>>       >>       subject to a
>>       >>       >> foreign country
>>       >>       >>             law simply in
>>       >>       >>                         the process of attending
>>       >>       >>                         to their regular duties (if
>>       they were
>>       >>       to be
>>       >>       >> fully engaged with
>>       >>       >>             ICANN).
>>       >>       >>
>>       >>       >>                         Quote:
>>       >>       >>
>>       >>       >>
>>       >>       >> "From the Brazilian perspective the existing
>>       structure
>>       >>       clearly imposes limits to the participation
>>       >>       >>
>>       >>       >>
>>       >>       >>      ???of governmental representatives, as it is
>>       unlikely
>>       >>       that a representative of a foreign government
>>       >>       >>              w
>>       >>       >>                   i
>>       >>       >> ll be authorized (by its own government) to formally
>>       accept a
>>       >>       position in a body pertaining to a U.
>>       >>       >>
>>       >>       >>
>>       >>       >>
>>       >>       >>                         S. corporation."
>>       >>       >>
>>       >>       >>                         This may be what you're
>>       getting at
>>       >>       with your
>>       >>       >> point 3 below, but
>>       >>       >>             I'm not sure
>>       >>       >>                         whether the problem is
>>       >>       >>                         only the fact that
>>       governments have
>>       >>       to deal
>>       >>       >> with a corporate
>>       >>       >>             form/law or
>>       >>       >>                         whether it is altogether
>>       >>       >>                         the fact that it is a single
>>       country
>>       >>       law
>>       >>       >> without any form of
>>       >>       >>             deliberate
>>       >>       >>                         endorsement by the other
>>       >>       >>                         governments (who also have
>>       law making
>>       >>       power
>>       >>       >> in their respective
>>       >>       >>             country just
>>       >>       >>                         as the US government).
>>       >>       >>
>>       >>       >>                         Assuming your reading is
>>       correct, and
>>       >>       if
>>       >>       >> necessary complemented
>>       >>       >>             by my
>>       >>       >>                         remarks above, I'd be
>>       >>       >>                         interested in hearing from
>>       you about
>>       >>       any
>>       >>       >> issues you may see with
>>       >>       >>             the BR gov
>>       >>       >>                         comments.
>>       >>       >>                         Thanks,
>>       >>       >>
>>       >>       >>                         Mawaki
>>       >>       >>
>>       >>       >>                         >
>>       >>       >>                         > 3. ICANN doesn't have to
>>       change its
>>       >>       form,
>>       >>       >> but it needs a form
>>       >>       >>             where
>>       >>       >>                         governments are comfortable.
>>       >>       >>                         >
>>       >>       >>                         > (And, as it happens, the
>>       corporate
>>       >>       form is
>>       >>       >> not such a
>>       >>       >>             form....)
>>       >>       >>                         >
>>       >>       >>                         >
>>       >>       >>                         > What am I missing?
>>       >>       >>                         >
>>       >>       >>                         >
>>       >>       >>                         >
>>       >>       >>                         > On Sat, 6 Jun 2015, Carlos
>>       A.
>>       >>       Afonso wrote:
>>       >>       >>                         >
>>       >>       >>                         >> For the ones who are
>>       following the
>>       >>       IANA
>>       >>       >> transition process:
>>       >>       >>             attached
>>       >>       >>                         >> please find the comments
>>       posted by
>>       >>       the
>>       >>       >> government of Brazil
>>       >>       >>             on June 03,
>>       >>       >>                         >> 2015, in response to the
>>       call for
>>       >>       public
>>       >>       >> comments on the
>>       >>       >>                         >> CCWG-Accountability
>>       Initial Draft
>>       >>       Proposal.
>>       >>       >>                         >>
>>       >>       >>                         >> I generally agree with
>>       the
>>       >>       comments.
>>       >>       >>                         >>
>>       >>       >>                         >> fraternal regards
>>       >>       >>                         >>
>>       >>       >>                         >> --c.a.
>>       >>       >>                         >>
>>       >>       >>                         >
>>       >>       >>                         > --
>>       >>       >>                         > A. Michael Froomkin,
>>       http://law.tm
>>       >>       >>                         > Laurie Silvers & Mitchell
>>       >>       Rubenstein
>>       >>       >> Distinguished Professor
>>       >>       >>             of Law
>>       >>       >>                         > Editor, Jotwell: The
>>       Journal of
>>       >>       Things We
>>       >>       >> Like (Lots),
>>       >>       >>             jotwell.com
>>       >>       >>                         > Program Chair, We Robot
>>       2016 | +1
>>       >>       (305)
>>       >>       >> 284-4285 |
>>       >>       >>             froomkin at law.tm
>>       >>       >>                         > U. Miami School of Law,
>>       P.O. Box
>>       >>       248087,
>>       >>       >> Coral Gables, FL
>>       >>       >>             33124 USA
>>       >>       >>                         >
>>        -->It's
>>       >>       warm here.<--
>>       >>       >>                         >
>>       >>       >>
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From seth.p.johnson at gmail.com  Wed Jun 10 17:04:24 2015
From: seth.p.johnson at gmail.com (Seth Johnson)
Date: Wed, 10 Jun 2015 17:04:24 -0400
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <CAJkfFBwSGPfkSiKG_-OBSceua1aohek5R2Vf6nu+jhNT2dC5bQ@mail.gmail.com>
References: <557378D2.6030503@cafonso.ca> <alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu>
 <CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com>
 <alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu> <5576ED01.9010606@itforchange.net>
 <alpine.LRH.2.00.1506090955160.12194@post.law.miami.edu> <55770298.20609@itforchange.net>
 <alpine.LRH.2.00.1506091131280.12194@post.law.miami.edu> <557802CE.4080505@itforchange.net>
 <CAOz-jXSR0tQFx8RV4Rtw_O=RbsHSNnRwQbZCsYA-9QTXBV-cnQ@mail.gmail.com>
 <alpine.LRH.2.00.1506101025020.8188@post.law.miami.edu> <CAJkfFByPDZj=6erciGUHiyAtCqSCSrpB1HQUCdGfm3QuMM2iTA@mail.gmail.com>
 <CACTo+v89idk43xf9+8GuwtuxfKD=h7QDay6KsDN-rzswRAETAQ@mail.gmail.com> <CAJkfFBwSGPfkSiKG_-OBSceua1aohek5R2Vf6nu+jhNT2dC5bQ@mail.gmail.com>
Message-ID: <CAJkfFBxTYpxNYR0JukOJDTwh7q=7OEeUgrALeo7pZ1tbOnjaJw@mail.gmail.com>

(One insert below, referencing your concern about being able to
financially pursue litigation internationally.  Plus a brief note
about ICANN versus governments)

On Wed, Jun 10, 2015 at 4:15 PM, Seth Johnson <seth.p.johnson at gmail.com> wrote:
> On Wed, Jun 10, 2015 at 2:51 PM, Mawaki Chango <kichango at gmail.com> wrote:
>> Simple and maybe trivial question, again (since my previous one about
>> delegation hasn't found a taker.)
>>
>> Scenario 1*: I am a citizen of Togo, quite a small country sitting on the
>> belly of Africa to the west (you may check our macro economic indicators in
>> the CIA Facebook or from the World Bank online sources.) I am a domain name
>> registrant. In year 2018 ICANN makes a decision, later upheld by the
>> conflict resolution mechanism in place, but which I think violates my
>> fundamental rights as I understand them by any international standards. I am
>> even pretty convinced that I might win the case in a US court based on the
>> documentation available /jurisprudence in that country. Problem is, I have
>> no access to the institutional resources that would allow me to use the US
>> judicial system as a plaintiff, much less the financial resources it would
>> take to get a lawyer to represent my interests.
>>
>> Is that -- the need for everybody to be equal before the law, in practice,
>> and have their rights equally secured, -- in your view, a problem worthy of
>> our attention? If so how can we address it.
>
>
> It is.  But no, you would not have recourse to US courts.  The problem
> for the international arena is that nobody has that "trump card"
> recourse that keeps governments in check *other than* those who have a
> claim that their own government is doing or allowing things to happen
> that violate their own fundamental rights as a citizen.  The kind of
> rights you get internationally are really almost what we call
> statutory rights -- the problem being that the "legislature" can
> always rewrite those kinds of rights.  Or, since in fact going and
> revising a treaty provision regarding rights poses some political
> difficulty, what you'll see more often is that the rights expressed in
> treaties have no more weight against things like "national interests"
> or "national security" or the "war on" x, y, and z -- than a
> "balancing standard."  Governments can well do whatever they say is
> necessary (like vacuum up all communications for surveillance, or for,
> hey, regular spying) for their national interests and they essentially
> just "bear in mind" whatever rights are expressed in treaties.  And no
> judge in an ostensible international tribunal can really simply cancel
> a treaty the way they can an unconstitutional law in a national
> context (without a clear founding act prior to the government, where
> the people(s) claim their priority and authorize government(s) to
> proceed only under certain limits).  Treaties are agreements among
> governments, so what the governments "meant" is what you have to
> deliberate over in interpreting the treaties -- not over whether the
> people have rights regardless of the governments' intention in the
> treaty.  A judge would at best weigh treaty elements and try to
> articulate how to settle all parts without saying any part is
> "unconstitutional."  The problem is how to get the closest you can to
> that kind of a "trump card" standing for fundamental rights.
>
> An ostensible "constitution" among governments (like the ITU's) has
> the same problem.  In general, the way the real claim of priority of
> the people and their rights happens is when the people self-evidently
> act to fill in the gap when a government is rendered illegitimate (or
> overthrown): acting independent of the pre-established government to
> select delegates to their own constitutional convention, draft a
> constitution, and then ratify it -- they thereby set a definitive
> historical register of the people setting limits that the government
> must thenceforth operate within to be legitimate.  This is called the
> "constituent power."  Historians point at Massachusetts as the first
> US colony/state to exercise the consttuent power that way -- when the
> towns rejected the state constitution the state legislature had
> written for them and insisted on having their own constitutional
> process.  It was done by similar principles for the US federal
> constitution.  That's how you get a fundamental right "trump card."
>
> If you have that, and it's exercised a few times well or for a while,
> then you have a situation where goverments are in check -- they don't
> overreach too obviously, or they test the boundaries but they get
> trumped by a judiciary that's rooted that way.


(This should be a sort of answer to your concern: yes, financing
international litigation is a problem -- Michael's note on relying on
advocate groups is on point -- and of course, the same problem also
applies to simply participating in international policy channels --
but when the recourse is solid, is set up well and has been resorted
to effectively, what happens is it's more that the prospect of
recourse is there and you're not going to court all the time to set
basic principles -- the governmental processes check themselves to a
great extent.  They do know your rights count, so they are careful.
You still do have individual situations, some of which might be
"constitutional" questions, but what you're asking is about setting
things up to work.  Representing the less-well-off remains a problem,
but I hope you understand how effective recourse creates a situation
where everybody needs to worry less about government(s) getting out of
hand.)


(Note that I am not talking about ICANN so much here, or recourse
against corporations [which, BTW, people really need to recognize that
we really don't have any kind of a good handle on, in the first
place].  My comments should be related to ICANN most directly in light
of the role of the Government Advisory Committee, which can play a
very different role once ICANN is unmoored from a national context;
right now the GAC is very circumspect, for some of the same reasons
I've given.  And indeed many forces -- governmental abetting corporate
[and vice versa] will have greater play on ICANN in a more purely
international arena context.  You lose recourse that many are not even
conscious of, releasing forces that are subject to checks that many
don't even think about.  I gave an explanation of that just above, re
how having solid recourse keeps governments in check and reduces the
need for litigation to secure your rights.)

(eom)



> You posed the question of equal rights before the law, in the
> international context.  I certainly do not advocate a global
> revolution where all the people(s) seize a moment to stop their
> governments and tell them how they may all proceed.
>
> What I have tended to suggest is approaches that can be interim
> measures that tend towards the principles that we want to have in
> play, but which we can't yet quite have in play.
>
> One approach that seems like a way towards that kind of conception
> might be: Imagine a bicameral "House of Rights" or more narrowly an
> "International Internet Communications Rights Forum."  It doesn't need
> to say "Rights," though that's the point, so maybe call it an
> "Internet Stewards House."  This is modeled like a legislature, with a
> house to represent countries equally, and another house to represent
> populations proportionally -- except it's not empowered to write law
> (or treaties), but rather to play the role of voting to *veto* acts of
> other (or some one or few other) intergovernmental bodies that
> actually do start enacting binding "legislation."  You might be able
> to get freedom-loving countries to endorse constructing something like
> that, and while it's not as solid as court rulings that keep all
> lawlike activities in check more definitively, it would be a solid
> register of the priority of rights.
>
> There are a lot of holes in that, but I think it conveys something of
> the kind of concerns and how they might be approached that we should
> really have in mind rather than blindly handing things off to the
> international arena (which is really *always* "intergovernmental" --
> governments are the entities that act there).
>
> So, that's a sort of answer, stab at describing things properly and
> with some sort of practical conception.  I don't press specific
> solutions though, just describe notions that I think can give people a
> better understanding of the real nature of the difficulties and
> problems involved.
>
> Ponder that; you'll think of plenty of problems with it.  But the
> important thing is this is a far more real characterization of the
> situation.  And I describe an idea like this solely to set a proper
> stage for talking about things with a better sense of what's going on.
> Take it as a brainstorm.  But also take it as a reality check and a
> call and challenge to try to define and understand the situation
> properly and well.
>
> (The above line of exposition talks mostly about governmental-related
> issues.  The issues brought by the corporate form are a whole other
> area that also needs fuller appreciation.  And really, we most want
> not to be so governmental [even those of us stressing the validity of
> the role of government]; we want to just build our Internet and let
> that be mostly a discussion of how to solve problems in a technical
> way and one where our rights aren't on the line.)
>
> See what you think of that.
>
>
> Seth
>
>> Thanks
>>
>> (*) I only have one scenario for now but I'm numbering #1 just in case
>> others come up later in the discussion.
>>
>> /Brought to you by Mawaki's droid agent
>>
>> On Jun 10, 2015 3:57 PM, "Seth Johnson" <seth.p.johnson at gmail.com> wrote:
>>>
>>> I believe the most important focus is on the question of how to
>>> install effective fundamental liberties limits in the context of an
>>> international political forum.  That's how you can hope to maintain
>>> the type of stewardship context we want associated with a medium of
>>> communication.  The presence of recourse of that sort -- related to
>>> being based in a national context -- is one of the main reasons why
>>> ICANN has not gone further off the rails.  Same as for government in
>>> general in such a national context: we don't get the government
>>> meddling specifically because the relationship to the national context
>>> (via the bare presence of NTIA) means the people (at least of the US)
>>> have recourse against it if it does.
>>>
>>> Keep in mind that one of the chief reasons why Obama (and his
>>> predecessor) have gone off the rails with surveillance and other
>>> fundamental rights violations is because they have the notion that the
>>> international arena provides means to act that way without the
>>> recourse we have against it domestically.  There's still the problem
>>> of laundering the surveillance by having private corporations (whether
>>> telco or app) do it on the government's behalf.  But we see an effort
>>> at long last to try to "legitimize" what they're doing that way at
>>> least (more apparent effort to not violate citizens in the domestic
>>> sphere), because we finally got standing in the courts, and
>>> documentation that was taken seriously via Snowden.  Still just
>>> domestic, so that doesn't answer general concerns, but this should
>>> highlight the nature of the problem.  You don't actually have
>>> fundamental rights in the international arena, no matter how many
>>> human rights treaties you pass.  That's not what secures rights
>>> against acts of governments.
>>>
>>> Note that this is stuff the UN has been utterly clueless about for
>>> years and years and years, along with many followers-on.  And I think
>>> in general the parties who have been acting in the international arena
>>> like it that way.  We, the people(s), are really the ones to bring it
>>> into the discourse in a real way, now that we are here in proceedings
>>> that deign to appear to engage us substantively in international
>>> policy.
>>>
>>>
>>> Seth
>>>
>>> On Wed, Jun 10, 2015 at 10:36 AM, Michael Froomkin - U.Miami School of
>>> Law <froomkin at law.miami.edu> wrote:
>>> > On Wed, 10 Jun 2015, Chris Prince Udochukwu Njoku wrote:
>>> >
>>> >>
>>> >> Parminder is emphasizing a true point. An organization which represents
>>> >> the
>>> >> interests of many nations, though located in one nation (as it must be)
>>> >> must
>>> >> not be subjected to laws that ought to be (and are) for national
>>> >
>>> >
>>> > It is, I think, possible to act as a trustee of international interests
>>> > while still having accountability rooted in national law.  It may not be
>>> > possible to accommodate the desires of governments to, in effect, serve
>>> > directly on the governing body given the view of e.g. the Brazilian
>>> > government that this is unacceptable subordination to another state, but
>>> > some may see that as a feature rather than a bug.
>>> >
>>> >
>>> >> organizations. This should be the definition of international
>>> >> jurisdiction
>>> >> here. If the host nation's laws don't actually accommodate the
>>> >> multinational
>>> >> stakeholding nature of the organization, it's a ripe clue to the need
>>> >> for
>>> >> relocation to a place that is more friendly to the organization's
>>> >> operations.
>>> >>
>>> >
>>> > The above contains a term that (to a lawyer) has multiple possible
>>> > meanings.
>>> > The traditional way to " accommodate the multinational ... nature" of an
>>> > organization is to incorporate it in Switzerland, and have no effective
>>> > supervision.  FIFA.  IOC.  No thanks.
>>> >
>>> > So I would ask, what is the threat model here?  What is a (mildly
>>> > realistic)
>>> > example of a scenario in which one fears the entity will do something
>>> > legitimate and a national court (of the US, Canada, the nation of your
>>> > choice) would have an appreciable chance of blocking it?  I would note,
>>> > for
>>> > example, that the only time I can think of that a US court overruled
>>> > ICANN
>>> > was when it froze out one of its own directors because the staff
>>> > disagreed
>>> > with his views.  That violated California law empowering directors not
>>> > to
>>> > mention any sense of natural justice.  The result was not only just, it
>>> > was
>>> > necessary.  And it is Exhibit A as to why we cannot simply trust in
>>> > ICANN,
>>> > or New New Co's, good faith.
>>> >
>>> > In other words, I submit that national court supervision in an
>>> > appropriate
>>> > and democratic jurisdiction is far, far more likely to produce good
>>> > outcomes
>>> > than bad ones, while the removal of this valuable check is almost
>>> > certain to
>>> > lead to difficulties.  What is more, those difficulties will not be
>>> > prevented by having the body be "international" for any currently known
>>> > meaning of the term.
>>> >
>>> > Contrary to other messages in this thread, I do not believe that there
>>> > is
>>> > much in the way of effective monitoring of many multi-national treaty
>>> > bodies
>>> > other than by action of the member states.  No one else has much real
>>> > leverage over WIPO, GATT, you name it.  NGOs have some moral and
>>> > intellectual suasion, but some of their clout also comes from the fact
>>> > that
>>> > it influences or might influence the members.
>>> >
>>> > I prefer to attempt to engineer a much surer means of dealing with major
>>> > and
>>> > substantially foreseeable problems.
>>> >
>>> >
>>> >> On Jun 10, 2015 11:27 AM, "parminder" <parminder at itforchange.net>
>>> >> wrote:
>>> >>
>>> >>
>>> >>       On Tuesday 09 June 2015 09:09 PM, Michael Froomkin - U.Miami
>>> >>       School of
>>> >>       Law wrote:
>>> >>       > On Tue, 9 Jun 2015, parminder wrote:
>>> >>       >
>>> >>       >> Are you saying that it is not possible for ICANN to undertake
>>> >>       the
>>> >>       >> functions that it needs to
>>> >>       >> undertake while being an international institution
>>> >>       incorporated under
>>> >>       >> international law, and free
>>> >>       >> from any countries jurisdiction in terms of its basic
>>> >>       governance
>>> >>       >> functions? I just want to be clear.
>>> >>       >
>>> >>       > I don't know what an "an international institution
>>> >>       incorporated under
>>> >>       > international law" is except bodies like FIFA (under Swiss
>>> >>       law), or UN
>>> >>       > bodies, or sui generis treaty bodies.  It is certainly
>>> >>       *possible* for
>>> >>       > ICANN to have any of those statuses and to "function"; as far
>>> >>       as I can
>>> >>       > tell, however, it's just not possible to build in meaningful
>>> >>       > accountability in those structures.
>>> >>
>>> >>       There are of course problems and issues everywhere, but it can
>>> >>       hardly be
>>> >>       said that UN and/or treaty bodies work without meaningful
>>> >>       accountability. Further, any new international treaty/ law
>>> >>       establishing
>>> >>       a new body - an really international ICANN for instance - can
>>> >>       write all
>>> >>       the accountability method it or we want to have written in it.
>>> >>       >
>>> >>       > There is no general international law of incorporation of
>>> >>       which I am
>>> >>       > aware.  Corporate (formation) law is all national law.  That
>>> >>       is the
>>> >>       > reality that must be confronted.  There is no place I can go
>>> >>       to get an
>>> >>       > international corporate charter, and good thing too - why
>>> >>       should I be
>>> >>       > able to exempt myself from national law?
>>> >>
>>> >>       This hits a fundamental issue - I see ICANN, in its ideal form,
>>> >>       as a
>>> >>       governance body, since it does governance functions, and not as
>>> >>       a
>>> >>       private corporation. So we need a new international treaty
>>> >>       sanctifying
>>> >>       ICANN as a global governance body - with its basic forms largely
>>> >>       unchanged, with new accountability means (including judicial
>>> >>       accountability) and not ways to be able incorporate a private
>>> >>       kind of an
>>> >>       entity outside national laws, which is admittedly both very
>>> >>       difficult,
>>> >>       and rather undesirable.
>>> >>
>>> >>       parminder
>>> >>
>>> >>       >
>>> >>       >>
>>> >>       >> If so, that would be an interesting assertion. Now, I am sure
>>> >>       this is
>>> >>       >> not true. However, I am not an
>>> >>       >> international legal expert and not able to right now build
>>> >>       and
>>> >>       >> present the whole scenario for you on
>>> >>       >> how it can be done. I am sure there are a number of
>>> >>       international
>>> >>       >> organisations that do different
>>> >>       >> kind of complex activities and have found ways to do it under
>>> >>       >> international law and jurisdiction.
>>> >>       >
>>> >>       > But those are in the main treaty bodies.
>>> >>       >
>>> >>       >> And if some new directions and evolutions are needed that can
>>> >>       also be
>>> >>       >> worked out (please see my last
>>> >>       >> email on this count).
>>> >>       >>
>>> >>       >
>>> >>       > Here we just disagree. I see the task as monsterously hard,
>>> >>       the work
>>> >>       > of a decade or more.
>>> >>       >
>>> >>       >> BTW it is a sad statement on the geo political economy of
>>> >>       knowledge
>>> >>       >> production in this area that
>>> >>       >> there is not one full fledged scenario developed by anyone on
>>> >>       how
>>> >>       >> ICANN can undertakes its
>>> >>       >> activities under international law/ jurisdiction - which I am
>>> >>       pretty
>>> >>       >> sure it can. Many parties,
>>> >>       >> including governments have called for it, and yes I agree
>>> >>       someone
>>> >>       >> should come up with a full
>>> >>       >> politico-legal and institutional description of how it can
>>> >>       and should
>>> >>       >> be done - with all the details
>>> >>       >> in place. And that is the sad part of it, of how things stand
>>> >>       at the
>>> >>       >> global level, had now lopsided
>>> >>       >> is resource distribution, all kinds of resources.
>>> >>       >>
>>> >>       >
>>> >>       > Alas.
>>> >>       >
>>> >>       >> Not to shy away from responsibility - I am happy to
>>> >>       collaborate with
>>> >>       >> anyone if someone can out time
>>> >>       >> into it.
>>> >>       >>
>>> >>       >> And no, it cannot be solved by any other country
>>> >>       jurisdiction. Apart
>>> >>       >> from it being still being wrong
>>> >>       >> in principle, how would US accept that another jurisdiction
>>> >>       is better
>>> >>       >> than its own and accede to
>>> >>       >> such a change. Accepting the patently justified fact that an
>>> >>       >> international infrastructure should be
>>> >>       >> governed internationally, on the other hand, is much easier .
>>> >>       >>
>>> >>       >
>>> >>       > I would not dismiss this so quickly.  I take a substantial
>>> >>       fraction of
>>> >>       > the opposition to US residual control (for that is all we are
>>> >>       talking
>>> >>       > about) to be tied to the US's status as defacto hegemon.
>>> >>       Moving ICANN
>>> >>       > to another state with a strong human rights record would
>>> >>       answer that
>>> >>       > part of the critique.
>>> >>       >
>>> >>       > In my view, a bespoke international structure is actually much
>>> >>       harder
>>> >>       > -- it would need to be invented almost from scratch.  And it
>>> >>       is bound
>>> >>       > to be flawed; national rules are the result of at least
>>> >>       decades if not
>>> >>       > more of trial and error.
>>> >>       >
>>> >>       >> parminder
>>> >>       >>
>>> >>       >> On Tuesday 09 June 2015 07:31 PM, Michael Froomkin - U.Miami
>>> >>       School
>>> >>       >> of Law wrote:
>>> >>       >>       I don't know what it means to say that ICANN should be
>>> >>       subject
>>> >>       >> to "international
>>> >>       >>       jurisdiction and law".  For the relevant issues, that
>>> >>       sounds
>>> >>       >> like a pretty empty set.
>>> >>       >>
>>> >>       >>       As regards most of the sort of things one might expect
>>> >>       to worry
>>> >>       >> about - e.g. fidelity to
>>> >>       >>       articles of incorporation - international law is
>>> >>       basically
>>> >>       >> silent.  And there is no
>>> >>       >>       relevant jurisdiction either.  So I remain stuck in the
>>> >>       >> position that there must be a
>>> >>       >>       state anchor whose courts are given the job.  It does
>>> >>       not of
>>> >>       >> course need to be the US,
>>> >>       >>       although I would note that the US courts are by
>>> >>       international
>>> >>       >> standards not shy and
>>> >>       >>       actually fairly good at this sort of thing.
>>> >>       >>
>>> >>       >>       I do think, however, that it should NOT be Switzerland,
>>> >>       as its
>>> >>       >> courts are historically
>>> >>       >>       over-deferential to international bodies - perhaps as
>>> >>       part of
>>> >>       >> state policy to be an
>>> >>       >>       attractive location for those high-spending
>>> >>       international
>>> >>       >> meetings.
>>> >>       >>
>>> >>       >>       I'd be real happy with Canada, though.
>>> >>       >>
>>> >>       >>       On Tue, 9 Jun 2015, parminder wrote:
>>> >>       >>
>>> >>       >>
>>> >>       >>
>>> >>       >>             On Tuesday 09 June 2015 06:26 PM, Michael
>>> >>       Froomkin -
>>> >>       >> U.Miami School of Law
>>> >>       >>             wrote:
>>> >>       >>
>>> >>       >>                   I think that bodies which do not need to
>>> >>       fear
>>> >>       >> supervision by
>>> >>       >>             legitimate courts end up
>>> >>       >>                   like FIFA. FIFA had a legal status in
>>> >>       Switzerland
>>> >>       >> that basically
>>> >>       >>             insulated it the way
>>> >>       >>                   that the Brazilian document seems to
>>> >>       suggest would
>>> >>       >> be what they want
>>> >>       >>             for ICANN.  (It's
>>> >>       >>                   also the legal status ICANN has at times
>>> >>       suggested
>>> >>       >> it would like.)
>>> >>       >>
>>> >>       >>                   The lesson of history seems unusually clear
>>> >>       here.
>>> >>       >>
>>> >>       >>
>>> >>       >>             Agree that ICANN cannot be left jurisdictionally
>>> >>       >> un-supervised - that may be
>>> >>       >>             even more dangerous
>>> >>       >>             than the present situation. However, the right
>>> >>       >> supervision or oversight is
>>> >>       >>             of international
>>> >>       >>             jurisdiction and law, not that of the US . This
>>> >>       is what
>>> >>       >> Brazil has to make
>>> >>       >>             upfront as the
>>> >>       >>             implication of what it is really seeking, and its
>>> >>       shyness
>>> >>       >> and reticence to
>>> >>       >>             say so is what I noted as
>>> >>       >>             surprising in an earlier email in this thread.
>>> >>       Not
>>> >>       >> putting out clearly what
>>> >>       >>             exactly it wants would
>>> >>       >>             lead to misconceptions about its position, which
>>> >>       IMHO can
>>> >>       >> be seen from how
>>> >>       >>             Michael reads it.  I am
>>> >>       >>             sure this is not how Brazil meant it - to free
>>> >>       ICANN from
>>> >>       >> all kinds of
>>> >>       >>             jurisdictional oversight
>>> >>       >>             whatsoever - but then Brazil needs to say clearly
>>> >>       what is
>>> >>       >> it that it wants,
>>> >>       >>             and how can it can
>>> >>       >>             obtained. Brazil, please come out of your
>>> >>       NetMundial
>>> >>       >> hangover and take
>>> >>       >>             political responsibility for
>>> >>       >>             what you say and seek!
>>> >>       >>
>>> >>       >>             parminder
>>> >>       >>
>>> >>       >>
>>> >>       >>
>>> >>       >>                   On Tue, 9 Jun 2015, Mawaki Chango wrote:
>>> >>       >>
>>> >>       >>
>>> >>       >>                         It's good to see a law scholar
>>> >>       involved in
>>> >>       >> this discussion. I'll
>>> >>       >>             leave it to
>>> >>       >>                         the Brazilian party to
>>> >>       >>                         ultimate tell whether your reading is
>>> >>       correct
>>> >>       >> or not. In the
>>> >>       >>             meantime I'd
>>> >>       >>                         volunteer the following
>>> >>       >>                         comments.
>>> >>       >>
>>> >>       >>                         On Jun 8, 2015 10:46 PM, "Michael
>>> >>       Froomkin -
>>> >>       >> U.Miami School of
>>> >>       >>             Law"
>>> >>       >>                         <froomkin at law.miami.edu> wrote:
>>> >>       >>                         >
>>> >>       >>                         > Perhaps I'm misreading something,
>>> >>       but I
>>> >>       >> read this document to
>>> >>       >>             make the
>>> >>       >>                         following assertions:
>>> >>       >>                         >
>>> >>       >>                         > 1. All restrictions on ICANN's
>>> >>       location
>>> >>       >> must be removed.
>>> >>       >>                         >
>>> >>       >>
>>> >>       >>                         And the question reopened for
>>> >>       deliberation by
>>> >>       >> all stakeholders,
>>> >>       >>             including
>>> >>       >>                         governments among others.
>>> >>       >>                         Only the outcome of such deliberation
>>> >>       will be
>>> >>       >> fully legitimate
>>> >>       >>             within the
>>> >>       >>                         framework of the post-2015
>>> >>       >>                         ICANN.
>>> >>       >>
>>> >>       >>                         > 2. ICANN does not have to leave the
>>> >>       US but
>>> >>       >> must be located in
>>> >>       >>             a place
>>> >>       >>                         where the governing law has
>>> >>       >>                         certain characteristics, including
>>> >>       not having
>>> >>       >> the possibiliity
>>> >>       >>             that courts
>>> >>       >>                         overrule ICANN (or at
>>> >>       >>                         least the IRP).
>>> >>       >>                         >
>>> >>       >>                         > (And, as it happens, the US is not
>>> >>       such a
>>> >>       >> place....)
>>> >>       >>                         >
>>> >>       >>
>>> >>       >>                         Not only avoiding courts overruling
>>> >>       relevant
>>> >>       >> outcomes of the
>>> >>       >>             Internet global
>>> >>       >>                         community processes,
>>> >>       >>                         but also examining and resolving the
>>> >>       possible
>>> >>       >>             interferences/conflicts that
>>> >>       >>                         might arise for
>>> >>       >>                         government representatives being
>>> >>       subject to a
>>> >>       >> foreign country
>>> >>       >>             law simply in
>>> >>       >>                         the process of attending
>>> >>       >>                         to their regular duties (if they were
>>> >>       to be
>>> >>       >> fully engaged with
>>> >>       >>             ICANN).
>>> >>       >>
>>> >>       >>                         Quote:
>>> >>       >>
>>> >>       >>
>>> >>       >> "From the Brazilian perspective the existing structure
>>> >>       clearly imposes limits to the participation
>>> >>       >>
>>> >>       >>
>>> >>       >>      ???of governmental representatives, as it is unlikely
>>> >>       that a representative of a foreign government
>>> >>       >>              w
>>> >>       >>                   i
>>> >>       >> ll be authorized (by its own government) to formally accept a
>>> >>       position in a body pertaining to a U.
>>> >>       >>
>>> >>       >>
>>> >>       >>
>>> >>       >>                         S. corporation."
>>> >>       >>
>>> >>       >>                         This may be what you're getting at
>>> >>       with your
>>> >>       >> point 3 below, but
>>> >>       >>             I'm not sure
>>> >>       >>                         whether the problem is
>>> >>       >>                         only the fact that governments have
>>> >>       to deal
>>> >>       >> with a corporate
>>> >>       >>             form/law or
>>> >>       >>                         whether it is altogether
>>> >>       >>                         the fact that it is a single country
>>> >>       law
>>> >>       >> without any form of
>>> >>       >>             deliberate
>>> >>       >>                         endorsement by the other
>>> >>       >>                         governments (who also have law making
>>> >>       power
>>> >>       >> in their respective
>>> >>       >>             country just
>>> >>       >>                         as the US government).
>>> >>       >>
>>> >>       >>                         Assuming your reading is correct, and
>>> >>       if
>>> >>       >> necessary complemented
>>> >>       >>             by my
>>> >>       >>                         remarks above, I'd be
>>> >>       >>                         interested in hearing from you about
>>> >>       any
>>> >>       >> issues you may see with
>>> >>       >>             the BR gov
>>> >>       >>                         comments.
>>> >>       >>                         Thanks,
>>> >>       >>
>>> >>       >>                         Mawaki
>>> >>       >>
>>> >>       >>                         >
>>> >>       >>                         > 3. ICANN doesn't have to change its
>>> >>       form,
>>> >>       >> but it needs a form
>>> >>       >>             where
>>> >>       >>                         governments are comfortable.
>>> >>       >>                         >
>>> >>       >>                         > (And, as it happens, the corporate
>>> >>       form is
>>> >>       >> not such a
>>> >>       >>             form....)
>>> >>       >>                         >
>>> >>       >>                         >
>>> >>       >>                         > What am I missing?
>>> >>       >>                         >
>>> >>       >>                         >
>>> >>       >>                         >
>>> >>       >>                         > On Sat, 6 Jun 2015, Carlos A.
>>> >>       Afonso wrote:
>>> >>       >>                         >
>>> >>       >>                         >> For the ones who are following the
>>> >>       IANA
>>> >>       >> transition process:
>>> >>       >>             attached
>>> >>       >>                         >> please find the comments posted by
>>> >>       the
>>> >>       >> government of Brazil
>>> >>       >>             on June 03,
>>> >>       >>                         >> 2015, in response to the call for
>>> >>       public
>>> >>       >> comments on the
>>> >>       >>                         >> CCWG-Accountability Initial Draft
>>> >>       Proposal.
>>> >>       >>                         >>
>>> >>       >>                         >> I generally agree with the
>>> >>       comments.
>>> >>       >>                         >>
>>> >>       >>                         >> fraternal regards
>>> >>       >>                         >>
>>> >>       >>                         >> --c.a.
>>> >>       >>                         >>
>>> >>       >>                         >
>>> >>       >>                         > --
>>> >>       >>                         > A. Michael Froomkin, http://law.tm
>>> >>       >>                         > Laurie Silvers & Mitchell
>>> >>       Rubenstein
>>> >>       >> Distinguished Professor
>>> >>       >>             of Law
>>> >>       >>                         > Editor, Jotwell: The Journal of
>>> >>       Things We
>>> >>       >> Like (Lots),
>>> >>       >>             jotwell.com
>>> >>       >>                         > Program Chair, We Robot 2016 | +1
>>> >>       (305)
>>> >>       >> 284-4285 |
>>> >>       >>             froomkin at law.tm
>>> >>       >>                         > U. Miami School of Law, P.O. Box
>>> >>       248087,
>>> >>       >> Coral Gables, FL
>>> >>       >>             33124 USA
>>> >>       >>                         >                         -->It's
>>> >>       warm here.<--
>>> >>       >>                         >
>>> >>       >> ____________________________________________________________
>>> >>       >>                         >
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>>> >>       >>                         >
>>> >>       >> ____________________________________________________________
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>>> > --
>>> > A. Michael Froomkin, http://law.tm
>>> > Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
>>> > Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
>>> > Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
>>> > U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
>>> >                         -->It's warm here.<--
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From remmyn at gmail.com  Wed Jun 10 17:15:39 2015
From: remmyn at gmail.com (Remmy Nweke)
Date: Wed, 10 Jun 2015 22:15:39 +0100
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <CACTo+v89idk43xf9+8GuwtuxfKD=h7QDay6KsDN-rzswRAETAQ@mail.gmail.com>
References: <557378D2.6030503@cafonso.ca>
	<alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu>
	<CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com>
	<alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu>
	<5576ED01.9010606@itforchange.net>
	<alpine.LRH.2.00.1506090955160.12194@post.law.miami.edu>
	<55770298.20609@itforchange.net>
	<alpine.LRH.2.00.1506091131280.12194@post.law.miami.edu>
	<557802CE.4080505@itforchange.net>
	<CAOz-jXSR0tQFx8RV4Rtw_O=RbsHSNnRwQbZCsYA-9QTXBV-cnQ@mail.gmail.com>
	<alpine.LRH.2.00.1506101025020.8188@post.law.miami.edu>
	<CAJkfFByPDZj=6erciGUHiyAtCqSCSrpB1HQUCdGfm3QuMM2iTA@mail.gmail.com>
	<CACTo+v89idk43xf9+8GuwtuxfKD=h7QDay6KsDN-rzswRAETAQ@mail.gmail.com>
Message-ID: <CAMc__oo2_1KnitRjNrObX4h90jrqXSaKE0OtyYeMyz9ZQBGkrg@mail.gmail.com>

Dear Mawaki
Thanks for this proposition.
As matter of fact it also applies to the issue of intellectual property or
pursuing such a case as IP as in Interlectual Property or better still in
our scene Internet Protocol related, most of these require the economic
wherewithal hence very often such case or cases are left unattempted or
even where there is an attempt it will 'never' be concluded especially when
it involves opposite economic powers that is between the countries of the
supposed advanced countries and developing economies.
But in the case of criminal cases the develop or advanced countries often
seek extradition of those involve though I am yet to see any of the reverse
from developing economies seeking extradiction for instance of a criminal
in order to arrive at a judgement or conclude a case, thus the gap persist
and unanswered remain unresolved.
Also though government tend to offer those unable to get solicitors a kind
of free service, really do not know the number of countries this still
obtains when it involves an international cases or jurisdictions.
Thanks
Remmy Nweke
@ITRealms

On Wednesday, June 10, 2015, Mawaki Chango <kichango at gmail.com> wrote:

> Simple and maybe trivial question, again (since my previous one about
> delegation hasn't found a taker.)
>
> Scenario 1*: I am a citizen of Togo, quite a small country sitting on the
> belly of Africa to the west (you may check our macro economic indicators in
> the CIA Facebook or from the World Bank online sources.) I am a domain name
> registrant. In year 2018 ICANN makes a decision, later upheld by the
> conflict resolution mechanism in place, but which I think violates my
> fundamental rights as I understand them by any international standards. I
> am even pretty convinced that I might win the case in a US court based on
> the documentation available /jurisprudence in that country. Problem is, I
> have no access to the institutional resources that would allow me to use
> the US judicial system as a plaintiff, much less the financial resources it
> would take to get a lawyer to represent my interests.
>
> Is that -- the need for everybody to be equal before the law, in practice,
> and have their rights equally secured, -- in your view, a problem worthy of
> our attention? If so how can we address it.
>
> Thanks
>
> (*) I only have one scenario for now but I'm numbering #1 just in case
> others come up later in the discussion.
>
> /Brought to you by Mawaki's droid agent
> On Jun 10, 2015 3:57 PM, "Seth Johnson" <seth.p.johnson at gmail.com
> <javascript:_e(%7B%7D,'cvml','seth.p.johnson at gmail.com');>> wrote:
>
>> I believe the most important focus is on the question of how to
>> install effective fundamental liberties limits in the context of an
>> international political forum.  That's how you can hope to maintain
>> the type of stewardship context we want associated with a medium of
>> communication.  The presence of recourse of that sort -- related to
>> being based in a national context -- is one of the main reasons why
>> ICANN has not gone further off the rails.  Same as for government in
>> general in such a national context: we don't get the government
>> meddling specifically because the relationship to the national context
>> (via the bare presence of NTIA) means the people (at least of the US)
>> have recourse against it if it does.
>>
>> Keep in mind that one of the chief reasons why Obama (and his
>> predecessor) have gone off the rails with surveillance and other
>> fundamental rights violations is because they have the notion that the
>> international arena provides means to act that way without the
>> recourse we have against it domestically.  There's still the problem
>> of laundering the surveillance by having private corporations (whether
>> telco or app) do it on the government's behalf.  But we see an effort
>> at long last to try to "legitimize" what they're doing that way at
>> least (more apparent effort to not violate citizens in the domestic
>> sphere), because we finally got standing in the courts, and
>> documentation that was taken seriously via Snowden.  Still just
>> domestic, so that doesn't answer general concerns, but this should
>> highlight the nature of the problem.  You don't actually have
>> fundamental rights in the international arena, no matter how many
>> human rights treaties you pass.  That's not what secures rights
>> against acts of governments.
>>
>> Note that this is stuff the UN has been utterly clueless about for
>> years and years and years, along with many followers-on.  And I think
>> in general the parties who have been acting in the international arena
>> like it that way.  We, the people(s), are really the ones to bring it
>> into the discourse in a real way, now that we are here in proceedings
>> that deign to appear to engage us substantively in international
>> policy.
>>
>>
>> Seth
>>
>> On Wed, Jun 10, 2015 at 10:36 AM, Michael Froomkin - U.Miami School of
>> Law <froomkin at law.miami.edu
>> <javascript:_e(%7B%7D,'cvml','froomkin at law.miami.edu');>> wrote:
>> > On Wed, 10 Jun 2015, Chris Prince Udochukwu Njoku wrote:
>> >
>> >>
>> >> Parminder is emphasizing a true point. An organization which represents
>> >> the
>> >> interests of many nations, though located in one nation (as it must be)
>> >> must
>> >> not be subjected to laws that ought to be (and are) for national
>> >
>> >
>> > It is, I think, possible to act as a trustee of international interests
>> > while still having accountability rooted in national law.  It may not be
>> > possible to accommodate the desires of governments to, in effect, serve
>> > directly on the governing body given the view of e.g. the Brazilian
>> > government that this is unacceptable subordination to another state, but
>> > some may see that as a feature rather than a bug.
>> >
>> >
>> >> organizations. This should be the definition of international
>> jurisdiction
>> >> here. If the host nation's laws don't actually accommodate the
>> >> multinational
>> >> stakeholding nature of the organization, it's a ripe clue to the need
>> for
>> >> relocation to a place that is more friendly to the organization's
>> >> operations.
>> >>
>> >
>> > The above contains a term that (to a lawyer) has multiple possible
>> meanings.
>> > The traditional way to " accommodate the multinational ... nature" of an
>> > organization is to incorporate it in Switzerland, and have no effective
>> > supervision.  FIFA.  IOC.  No thanks.
>> >
>> > So I would ask, what is the threat model here?  What is a (mildly
>> realistic)
>> > example of a scenario in which one fears the entity will do something
>> > legitimate and a national court (of the US, Canada, the nation of your
>> > choice) would have an appreciable chance of blocking it?  I would note,
>> for
>> > example, that the only time I can think of that a US court overruled
>> ICANN
>> > was when it froze out one of its own directors because the staff
>> disagreed
>> > with his views.  That violated California law empowering directors not
>> to
>> > mention any sense of natural justice.  The result was not only just, it
>> was
>> > necessary.  And it is Exhibit A as to why we cannot simply trust in
>> ICANN,
>> > or New New Co's, good faith.
>> >
>> > In other words, I submit that national court supervision in an
>> appropriate
>> > and democratic jurisdiction is far, far more likely to produce good
>> outcomes
>> > than bad ones, while the removal of this valuable check is almost
>> certain to
>> > lead to difficulties.  What is more, those difficulties will not be
>> > prevented by having the body be "international" for any currently known
>> > meaning of the term.
>> >
>> > Contrary to other messages in this thread, I do not believe that there
>> is
>> > much in the way of effective monitoring of many multi-national treaty
>> bodies
>> > other than by action of the member states.  No one else has much real
>> > leverage over WIPO, GATT, you name it.  NGOs have some moral and
>> > intellectual suasion, but some of their clout also comes from the fact
>> that
>> > it influences or might influence the members.
>> >
>> > I prefer to attempt to engineer a much surer means of dealing with
>> major and
>> > substantially foreseeable problems.
>> >
>> >
>> >> On Jun 10, 2015 11:27 AM, "parminder" <parminder at itforchange.net
>> <javascript:_e(%7B%7D,'cvml','parminder at itforchange.net');>> wrote:
>> >>
>> >>
>> >>       On Tuesday 09 June 2015 09:09 PM, Michael Froomkin - U.Miami
>> >>       School of
>> >>       Law wrote:
>> >>       > On Tue, 9 Jun 2015, parminder wrote:
>> >>       >
>> >>       >> Are you saying that it is not possible for ICANN to undertake
>> >>       the
>> >>       >> functions that it needs to
>> >>       >> undertake while being an international institution
>> >>       incorporated under
>> >>       >> international law, and free
>> >>       >> from any countries jurisdiction in terms of its basic
>> >>       governance
>> >>       >> functions? I just want to be clear.
>> >>       >
>> >>       > I don't know what an "an international institution
>> >>       incorporated under
>> >>       > international law" is except bodies like FIFA (under Swiss
>> >>       law), or UN
>> >>       > bodies, or sui generis treaty bodies.  It is certainly
>> >>       *possible* for
>> >>       > ICANN to have any of those statuses and to "function"; as far
>> >>       as I can
>> >>       > tell, however, it's just not possible to build in meaningful
>> >>       > accountability in those structures.
>> >>
>> >>       There are of course problems and issues everywhere, but it can
>> >>       hardly be
>> >>       said that UN and/or treaty bodies work without meaningful
>> >>       accountability. Further, any new international treaty/ law
>> >>       establishing
>> >>       a new body - an really international ICANN for instance - can
>> >>       write all
>> >>       the accountability method it or we want to have written in it.
>> >>       >
>> >>       > There is no general international law of incorporation of
>> >>       which I am
>> >>       > aware.  Corporate (formation) law is all national law.  That
>> >>       is the
>> >>       > reality that must be confronted.  There is no place I can go
>> >>       to get an
>> >>       > international corporate charter, and good thing too - why
>> >>       should I be
>> >>       > able to exempt myself from national law?
>> >>
>> >>       This hits a fundamental issue - I see ICANN, in its ideal form,
>> >>       as a
>> >>       governance body, since it does governance functions, and not as
>> >>       a
>> >>       private corporation. So we need a new international treaty
>> >>       sanctifying
>> >>       ICANN as a global governance body - with its basic forms largely
>> >>       unchanged, with new accountability means (including judicial
>> >>       accountability) and not ways to be able incorporate a private
>> >>       kind of an
>> >>       entity outside national laws, which is admittedly both very
>> >>       difficult,
>> >>       and rather undesirable.
>> >>
>> >>       parminder
>> >>
>> >>       >
>> >>       >>
>> >>       >> If so, that would be an interesting assertion. Now, I am sure
>> >>       this is
>> >>       >> not true. However, I am not an
>> >>       >> international legal expert and not able to right now build
>> >>       and
>> >>       >> present the whole scenario for you on
>> >>       >> how it can be done. I am sure there are a number of
>> >>       international
>> >>       >> organisations that do different
>> >>       >> kind of complex activities and have found ways to do it under
>> >>       >> international law and jurisdiction.
>> >>       >
>> >>       > But those are in the main treaty bodies.
>> >>       >
>> >>       >> And if some new directions and evolutions are needed that can
>> >>       also be
>> >>       >> worked out (please see my last
>> >>       >> email on this count).
>> >>       >>
>> >>       >
>> >>       > Here we just disagree. I see the task as monsterously hard,
>> >>       the work
>> >>       > of a decade or more.
>> >>       >
>> >>       >> BTW it is a sad statement on the geo political economy of
>> >>       knowledge
>> >>       >> production in this area that
>> >>       >> there is not one full fledged scenario developed by anyone on
>> >>       how
>> >>       >> ICANN can undertakes its
>> >>       >> activities under international law/ jurisdiction - which I am
>> >>       pretty
>> >>       >> sure it can. Many parties,
>> >>       >> including governments have called for it, and yes I agree
>> >>       someone
>> >>       >> should come up with a full
>> >>       >> politico-legal and institutional description of how it can
>> >>       and should
>> >>       >> be done - with all the details
>> >>       >> in place. And that is the sad part of it, of how things stand
>> >>       at the
>> >>       >> global level, had now lopsided
>> >>       >> is resource distribution, all kinds of resources.
>> >>       >>
>> >>       >
>> >>       > Alas.
>> >>       >
>> >>       >> Not to shy away from responsibility - I am happy to
>> >>       collaborate with
>> >>       >> anyone if someone can out time
>> >>       >> into it.
>> >>       >>
>> >>       >> And no, it cannot be solved by any other country
>> >>       jurisdiction. Apart
>> >>       >> from it being still being wrong
>> >>       >> in principle, how would US accept that another jurisdiction
>> >>       is better
>> >>       >> than its own and accede to
>> >>       >> such a change. Accepting the patently justified fact that an
>> >>       >> international infrastructure should be
>> >>       >> governed internationally, on the other hand, is much easier .
>> >>       >>
>> >>       >
>> >>       > I would not dismiss this so quickly.  I take a substantial
>> >>       fraction of
>> >>       > the opposition to US residual control (for that is all we are
>> >>       talking
>> >>       > about) to be tied to the US's status as defacto hegemon.
>> >>       Moving ICANN
>> >>       > to another state with a strong human rights record would
>> >>       answer that
>> >>       > part of the critique.
>> >>       >
>> >>       > In my view, a bespoke international structure is actually much
>> >>       harder
>> >>       > -- it would need to be invented almost from scratch.  And it
>> >>       is bound
>> >>       > to be flawed; national rules are the result of at least
>> >>       decades if not
>> >>       > more of trial and error.
>> >>       >
>> >>       >> parminder
>> >>       >>
>> >>       >> On Tuesday 09 June 2015 07:31 PM, Michael Froomkin - U.Miami
>> >>       School
>> >>       >> of Law wrote:
>> >>       >>       I don't know what it means to say that ICANN should be
>> >>       subject
>> >>       >> to "international
>> >>       >>       jurisdiction and law".  For the relevant issues, that
>> >>       sounds
>> >>       >> like a pretty empty set.
>> >>       >>
>> >>       >>       As regards most of the sort of things one might expect
>> >>       to worry
>> >>       >> about - e.g. fidelity to
>> >>       >>       articles of incorporation - international law is
>> >>       basically
>> >>       >> silent.  And there is no
>> >>       >>       relevant jurisdiction either.  So I remain stuck in the
>> >>       >> position that there must be a
>> >>       >>       state anchor whose courts are given the job.  It does
>> >>       not of
>> >>       >> course need to be the US,
>> >>       >>       although I would note that the US courts are by
>> >>       international
>> >>       >> standards not shy and
>> >>       >>       actually fairly good at this sort of thing.
>> >>       >>
>> >>       >>       I do think, however, that it should NOT be Switzerland,
>> >>       as its
>> >>       >> courts are historically
>> >>       >>       over-deferential to international bodies - perhaps as
>> >>       part of
>> >>       >> state policy to be an
>> >>       >>       attractive location for those high-spending
>> >>       international
>> >>       >> meetings.
>> >>       >>
>> >>       >>       I'd be real happy with Canada, though.
>> >>       >>
>> >>       >>       On Tue, 9 Jun 2015, parminder wrote:
>> >>       >>
>> >>       >>
>> >>       >>
>> >>       >>             On Tuesday 09 June 2015 06:26 PM, Michael
>> >>       Froomkin -
>> >>       >> U.Miami School of Law
>> >>       >>             wrote:
>> >>       >>
>> >>       >>                   I think that bodies which do not need to
>> >>       fear
>> >>       >> supervision by
>> >>       >>             legitimate courts end up
>> >>       >>                   like FIFA. FIFA had a legal status in
>> >>       Switzerland
>> >>       >> that basically
>> >>       >>             insulated it the way
>> >>       >>                   that the Brazilian document seems to
>> >>       suggest would
>> >>       >> be what they want
>> >>       >>             for ICANN.  (It's
>> >>       >>                   also the legal status ICANN has at times
>> >>       suggested
>> >>       >> it would like.)
>> >>       >>
>> >>       >>                   The lesson of history seems unusually clear
>> >>       here.
>> >>       >>
>> >>       >>
>> >>       >>             Agree that ICANN cannot be left jurisdictionally
>> >>       >> un-supervised - that may be
>> >>       >>             even more dangerous
>> >>       >>             than the present situation. However, the right
>> >>       >> supervision or oversight is
>> >>       >>             of international
>> >>       >>             jurisdiction and law, not that of the US . This
>> >>       is what
>> >>       >> Brazil has to make
>> >>       >>             upfront as the
>> >>       >>             implication of what it is really seeking, and its
>> >>       shyness
>> >>       >> and reticence to
>> >>       >>             say so is what I noted as
>> >>       >>             surprising in an earlier email in this thread.
>> >>       Not
>> >>       >> putting out clearly what
>> >>       >>             exactly it wants would
>> >>       >>             lead to misconceptions about its position, which
>> >>       IMHO can
>> >>       >> be seen from how
>> >>       >>             Michael reads it.  I am
>> >>       >>             sure this is not how Brazil meant it - to free
>> >>       ICANN from
>> >>       >> all kinds of
>> >>       >>             jurisdictional oversight
>> >>       >>             whatsoever - but then Brazil needs to say clearly
>> >>       what is
>> >>       >> it that it wants,
>> >>       >>             and how can it can
>> >>       >>             obtained. Brazil, please come out of your
>> >>       NetMundial
>> >>       >> hangover and take
>> >>       >>             political responsibility for
>> >>       >>             what you say and seek!
>> >>       >>
>> >>       >>             parminder
>> >>       >>
>> >>       >>
>> >>       >>
>> >>       >>                   On Tue, 9 Jun 2015, Mawaki Chango wrote:
>> >>       >>
>> >>       >>
>> >>       >>                         It's good to see a law scholar
>> >>       involved in
>> >>       >> this discussion. I'll
>> >>       >>             leave it to
>> >>       >>                         the Brazilian party to
>> >>       >>                         ultimate tell whether your reading is
>> >>       correct
>> >>       >> or not. In the
>> >>       >>             meantime I'd
>> >>       >>                         volunteer the following
>> >>       >>                         comments.
>> >>       >>
>> >>       >>                         On Jun 8, 2015 10:46 PM, "Michael
>> >>       Froomkin -
>> >>       >> U.Miami School of
>> >>       >>             Law"
>> >>       >>                         <froomkin at law.miami.edu
>> <javascript:_e(%7B%7D,'cvml','froomkin at law.miami.edu');>> wrote:
>> >>       >>                         >
>> >>       >>                         > Perhaps I'm misreading something,
>> >>       but I
>> >>       >> read this document to
>> >>       >>             make the
>> >>       >>                         following assertions:
>> >>       >>                         >
>> >>       >>                         > 1. All restrictions on ICANN's
>> >>       location
>> >>       >> must be removed.
>> >>       >>                         >
>> >>       >>
>> >>       >>                         And the question reopened for
>> >>       deliberation by
>> >>       >> all stakeholders,
>> >>       >>             including
>> >>       >>                         governments among others.
>> >>       >>                         Only the outcome of such deliberation
>> >>       will be
>> >>       >> fully legitimate
>> >>       >>             within the
>> >>       >>                         framework of the post-2015
>> >>       >>                         ICANN.
>> >>       >>
>> >>       >>                         > 2. ICANN does not have to leave the
>> >>       US but
>> >>       >> must be located in
>> >>       >>             a place
>> >>       >>                         where the governing law has
>> >>       >>                         certain characteristics, including
>> >>       not having
>> >>       >> the possibiliity
>> >>       >>             that courts
>> >>       >>                         overrule ICANN (or at
>> >>       >>                         least the IRP).
>> >>       >>                         >
>> >>       >>                         > (And, as it happens, the US is not
>> >>       such a
>> >>       >> place....)
>> >>       >>                         >
>> >>       >>
>> >>       >>                         Not only avoiding courts overruling
>> >>       relevant
>> >>       >> outcomes of the
>> >>       >>             Internet global
>> >>       >>                         community processes,
>> >>       >>                         but also examining and resolving the
>> >>       possible
>> >>       >>             interferences/conflicts that
>> >>       >>                         might arise for
>> >>       >>                         government representatives being
>> >>       subject to a
>> >>       >> foreign country
>> >>       >>             law simply in
>> >>       >>                         the process of attending
>> >>       >>                         to their regular duties (if they were
>> >>       to be
>> >>       >> fully engaged with
>> >>       >>             ICANN).
>> >>       >>
>> >>       >>                         Quote:
>> >>       >>
>> >>       >>
>> >>       >> "From the Brazilian perspective the existing structure
>> >>       clearly imposes limits to the participation
>> >>       >>
>> >>       >>
>> >>       >>      ???of governmental representatives, as it is unlikely
>> >>       that a representative of a foreign government
>> >>       >>              w
>> >>       >>                   i
>> >>       >> ll be authorized (by its own government) to formally accept a
>> >>       position in a body pertaining to a U.
>> >>       >>
>> >>       >>
>> >>       >>
>> >>       >>                         S. corporation."
>> >>       >>
>> >>       >>                         This may be what you're getting at
>> >>       with your
>> >>       >> point 3 below, but
>> >>       >>             I'm not sure
>> >>       >>                         whether the problem is
>> >>       >>                         only the fact that governments have
>> >>       to deal
>> >>       >> with a corporate
>> >>       >>             form/law or
>> >>       >>                         whether it is altogether
>> >>       >>                         the fact that it is a single country
>> >>       law
>> >>       >> without any form of
>> >>       >>             deliberate
>> >>       >>                         endorsement by the other
>> >>       >>                         governments (who also have law making
>> >>       power
>> >>       >> in their respective
>> >>       >>             country just
>> >>       >>                         as the US government).
>> >>       >>
>> >>       >>                         Assuming your reading is correct, and
>> >>       if
>> >>       >> necessary complemented
>> >>       >>             by my
>> >>       >>                         remarks above, I'd be
>> >>       >>                         interested in hearing from you about
>> >>       any
>> >>       >> issues you may see with
>> >>       >>             the BR gov
>> >>       >>                         comments.
>> >>       >>                         Thanks,
>> >>       >>
>> >>       >>                         Mawaki
>> >>       >>
>> >>       >>                         >
>> >>       >>                         > 3. ICANN doesn't have to change its
>> >>       form,
>> >>       >> but it needs a form
>> >>       >>             where
>> >>       >>                         governments are comfortable.
>> >>       >>                         >
>> >>       >>                         > (And, as it happens, the corporate
>> >>       form is
>> >>       >> not such a
>> >>       >>             form....)
>> >>       >>                         >
>> >>       >>                         >
>> >>       >>                         > What am I missing?
>> >>       >>                         >
>> >>       >>                         >
>> >>       >>                         >
>> >>       >>                         > On Sat, 6 Jun 2015, Carlos A.
>> >>       Afonso wrote:
>> >>       >>                         >
>> >>       >>                         >> For the ones who are following the
>> >>       IANA
>> >>       >> transition process:
>> >>       >>             attached
>> >>       >>                         >> please find the comments posted by
>> >>       the
>> >>       >> government of Brazil
>> >>       >>             on June 03,
>> >>       >>                         >> 2015, in response to the call for
>> >>       public
>> >>       >> comments on the
>> >>       >>                         >> CCWG-Accountability Initial Draft
>> >>       Proposal.
>> >>       >>                         >>
>> >>       >>                         >> I generally agree with the
>> >>       comments.
>> >>       >>                         >>
>> >>       >>                         >> fraternal regards
>> >>       >>                         >>
>> >>       >>                         >> --c.a.
>> >>       >>                         >>
>> >>       >>                         >
>> >>       >>                         > --
>> >>       >>                         > A. Michael Froomkin, http://law.tm
>> >>       >>                         > Laurie Silvers & Mitchell
>> >>       Rubenstein
>> >>       >> Distinguished Professor
>> >>       >>             of Law
>> >>       >>                         > Editor, Jotwell: The Journal of
>> >>       Things We
>> >>       >> Like (Lots),
>> >>       >>             jotwell.com
>> >>       >>                         > Program Chair, We Robot 2016 | +1
>> >>       (305)
>> >>       >> 284-4285 |
>> >>       >>             froomkin at law.tm
>> <javascript:_e(%7B%7D,'cvml','froomkin at law.tm');>
>> >>       >>                         > U. Miami School of Law, P.O. Box
>> >>       248087,
>> >>       >> Coral Gables, FL
>> >>       >>             33124 USA
>> >>       >>                         >                         -->It's
>> >>       warm here.<--
>> >>       >>                         >
>> >>       >> ____________________________________________________________
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>> >>       >>                         >
>> >>       >> ____________________________________________________________
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>> > --
>> > A. Michael Froomkin, http://law.tm
>> > Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
>> > Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
>> > Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
>> <javascript:_e(%7B%7D,'cvml','froomkin at law.tm');>
>> > U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
>> >                         -->It's warm here.<--
>> >
>> > ____________________________________________________________
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From seth.p.johnson at gmail.com  Wed Jun 10 17:47:31 2015
From: seth.p.johnson at gmail.com (Seth Johnson)
Date: Wed, 10 Jun 2015 17:47:31 -0400
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <CAJkfFBwSGPfkSiKG_-OBSceua1aohek5R2Vf6nu+jhNT2dC5bQ@mail.gmail.com>
References: <557378D2.6030503@cafonso.ca> <alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu>
 <CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com>
 <alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu> <5576ED01.9010606@itforchange.net>
 <alpine.LRH.2.00.1506090955160.12194@post.law.miami.edu> <55770298.20609@itforchange.net>
 <alpine.LRH.2.00.1506091131280.12194@post.law.miami.edu> <557802CE.4080505@itforchange.net>
 <CAOz-jXSR0tQFx8RV4Rtw_O=RbsHSNnRwQbZCsYA-9QTXBV-cnQ@mail.gmail.com>
 <alpine.LRH.2.00.1506101025020.8188@post.law.miami.edu> <CAJkfFByPDZj=6erciGUHiyAtCqSCSrpB1HQUCdGfm3QuMM2iTA@mail.gmail.com>
 <CACTo+v89idk43xf9+8GuwtuxfKD=h7QDay6KsDN-rzswRAETAQ@mail.gmail.com> <CAJkfFBwSGPfkSiKG_-OBSceua1aohek5R2Vf6nu+jhNT2dC5bQ@mail.gmail.com>
Message-ID: <CAJkfFBzk4dX=GHL2c-BdYLR17LY3WZW0hBE-xzGOsFjHcJiEcQ@mail.gmail.com>

(Hate to add another edit, but the below clarification seems
necessary.  I'll snip to get right to it though)

On Wed, Jun 10, 2015 at 4:15 PM, Seth Johnson <seth.p.johnson at gmail.com> wrote:

<snip>

> It is.  But no, you would not have recourse to US courts.  The problem
> for the international arena is that nobody has that "trump card"
> recourse that keeps governments in check *other than* those who have a
> claim that their own government is doing or allowing things to happen
> that violate their own fundamental rights as a citizen.  The kind of
> rights you get internationally are really almost what we call
> statutory rights -- the problem being that the "legislature" can
> always rewrite those kinds of rights.  Or, since in fact going and
> revising a treaty provision regarding rights poses some political
> difficulty, what you'll see more often is that the rights expressed in
> treaties have no more weight against things like "national interests"
> or "national security" or the "war on" x, y, and z -- than a
> "balancing standard."  Governments can well do whatever they say is
> necessary (like vacuum up all communications for surveillance, or for,
> hey, regular spying) for their national interests and they essentially
> just "bear in mind" whatever rights are expressed in treaties.  And no
> judge in an ostensible international tribunal can really simply cancel
> a treaty the way they can an unconstitutional law in a national
> context (without a clear founding act prior to the government, where
> the people(s) claim their priority and authorize government(s) to
> proceed only under certain limits).  Treaties are agreements among
> governments, so what the governments "meant" is what you have to
> deliberate over in interpreting the treaties -- not over whether the
> people have rights regardless of the governments' intention in the
> treaty.  A judge would at best weigh treaty elements and try to
> articulate how to settle all parts without saying any part is
> "unconstitutional."  The problem is how to get the closest you can to
> that kind of a "trump card" standing for fundamental rights.


Last sentence above should be:

The problem is how to get away from that kind of "balancing" approach
and how to get the closest to the kind of a "trump card" standing that
you get with real fundamental rights.

(eom)


<snip>

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From LB at lucabelli.net  Wed Jun 10 17:58:15 2015
From: LB at lucabelli.net (LB at lucabelli.net)
Date: Wed, 10 Jun 2015 14:58:15 -0700
Subject: [governance] =?UTF-8?Q?Request_for_Comments_-_Statement_on_Ne?=
 =?UTF-8?Q?t_Neutrality_=E2=80=8F?=
Message-ID: <20150610145815.2700328f4bbfc197480209526f2a1375.6776d3fb08.wbe@email07.europe.secureserver.net>

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From froomkin at law.miami.edu  Wed Jun 10 19:11:20 2015
From: froomkin at law.miami.edu (Michael Froomkin - U.Miami School of Law)
Date: Wed, 10 Jun 2015 19:11:20 -0400
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <CAJkfFBwSGPfkSiKG_-OBSceua1aohek5R2Vf6nu+jhNT2dC5bQ@mail.gmail.com>
References: <557378D2.6030503@cafonso.ca> <alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu> <CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com> <alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu> <5576ED01.9010606@itforchange.net>
 <alpine.LRH.2.00.1506090955160.12194@post.law.miami.edu> <55770298.20609@itforchange.net> <alpine.LRH.2.00.1506091131280.12194@post.law.miami.edu> <557802CE.4080505@itforchange.net> <CAOz-jXSR0tQFx8RV4Rtw_O=RbsHSNnRwQbZCsYA-9QTXBV-cnQ@mail.gmail.com>
 <alpine.LRH.2.00.1506101025020.8188@post.law.miami.edu> <CAJkfFByPDZj=6erciGUHiyAtCqSCSrpB1HQUCdGfm3QuMM2iTA@mail.gmail.com> <CACTo+v89idk43xf9+8GuwtuxfKD=h7QDay6KsDN-rzswRAETAQ@mail.gmail.com>
 <CAJkfFBwSGPfkSiKG_-OBSceua1aohek5R2Vf6nu+jhNT2dC5bQ@mail.gmail.com>
Message-ID: <alpine.LRH.2.00.1506101902540.11271@post.law.miami.edu>

Just to head off a possible and no doubt unintentional misunderstanding:

Non-US persons have recourse to US courts for many things, including 
contractual rights.  Non-US persons located outside the US do not, in the 
main, have the right to make constitutional claims or defenses against the 
US government.  But since ICANN, or New New Co., is not part of the US 
government, this is not relevant.

If a corporation is located in a US state, then it can be sued there by 
**anyone*** from ***anywhere*** so long as they are in fact alleging facts 
showing they were wronged by it.  In other words, the issue is what 
(mainly private law) rights one might have to assert, not whether the 
court will hear you due to your citizenship or domicile or even (if 
represented by counsel) location.


On Wed, 10 Jun 2015, Seth Johnson wrote:

> On Wed, Jun 10, 2015 at 2:51 PM, Mawaki Chango <kichango at gmail.com> wrote:
>> Simple and maybe trivial question, again (since my previous one about
>> delegation hasn't found a taker.)
>>
>> Scenario 1*: I am a citizen of Togo, quite a small country sitting on the
>> belly of Africa to the west (you may check our macro economic indicators in
>> the CIA Facebook or from the World Bank online sources.) I am a domain name
>> registrant. In year 2018 ICANN makes a decision, later upheld by the
>> conflict resolution mechanism in place, but which I think violates my
>> fundamental rights as I understand them by any international standards. I am
>> even pretty convinced that I might win the case in a US court based on the
>> documentation available /jurisprudence in that country. Problem is, I have
>> no access to the institutional resources that would allow me to use the US
>> judicial system as a plaintiff, much less the financial resources it would
>> take to get a lawyer to represent my interests.
>>
>> Is that -- the need for everybody to be equal before the law, in practice,
>> and have their rights equally secured, -- in your view, a problem worthy of
>> our attention? If so how can we address it.
>
>
> It is.  But no, you would not have recourse to US courts.  The problem
> for the international arena is that nobody has that "trump card"
> recourse that keeps governments in check *other than* those who have a
> claim that their own government is doing or allowing things to happen
> that violate their own fundamental rights as a citizen.  The kind of
> rights you get internationally are really almost what we call
> statutory rights -- the problem being that the "legislature" can
> always rewrite those kinds of rights.  Or, since in fact going and
> revising a treaty provision regarding rights poses some political
> difficulty, what you'll see more often is that the rights expressed in
> treaties have no more weight against things like "national interests"
> or "national security" or the "war on" x, y, and z -- than a
> "balancing standard."  Governments can well do whatever they say is
> necessary (like vacuum up all communications for surveillance, or for,
> hey, regular spying) for their national interests and they essentially
> just "bear in mind" whatever rights are expressed in treaties.  And no
> judge in an ostensible international tribunal can really simply cancel
> a treaty the way they can an unconstitutional law in a national
> context (without a clear founding act prior to the government, where
> the people(s) claim their priority and authorize government(s) to
> proceed only under certain limits).  Treaties are agreements among
> governments, so what the governments "meant" is what you have to
> deliberate over in interpreting the treaties -- not over whether the
> people have rights regardless of the governments' intention in the
> treaty.  A judge would at best weigh treaty elements and try to
> articulate how to settle all parts without saying any part is
> "unconstitutional."  The problem is how to get the closest you can to
> that kind of a "trump card" standing for fundamental rights.
>
> An ostensible "constitution" among governments (like the ITU's) has
> the same problem.  In general, the way the real claim of priority of
> the people and their rights happens is when the people self-evidently
> act to fill in the gap when a government is rendered illegitimate (or
> overthrown): acting independent of the pre-established government to
> select delegates to their own constitutional convention, draft a
> constitution, and then ratify it -- they thereby set a definitive
> historical register of the people setting limits that the government
> must thenceforth operate within to be legitimate.  This is called the
> "constituent power."  Historians point at Massachusetts as the first
> US colony/state to exercise the consttuent power that way -- when the
> towns rejected the state constitution the state legislature had
> written for them and insisted on having their own constitutional
> process.  It was done by similar principles for the US federal
> constitution.  That's how you get a fundamental right "trump card."
>
> If you have that, and it's exercised a few times well or for a while,
> then you have a situation where goverments are in check -- they don't
> overreach too obviously, or they test the boundaries but they get
> trumped by a judiciary that's rooted that way.
>
> You posed the question of equal rights before the law, in the
> international context.  I certainly do not advocate a global
> revolution where all the people(s) seize a moment to stop their
> governments and tell them how they may all proceed.
>
> What I have tended to suggest is approaches that can be interim
> measures that tend towards the principles that we want to have in
> play, but which we can't yet quite have in play.
>
> One approach that seems like a way towards that kind of conception
> might be: Imagine a bicameral "House of Rights" or more narrowly an
> "International Internet Communications Rights Forum."  It doesn't need
> to say "Rights," though that's the point, so maybe call it an
> "Internet Stewards House."  This is modeled like a legislature, with a
> house to represent countries equally, and another house to represent
> populations proportionally -- except it's not empowered to write law
> (or treaties), but rather to play the role of voting to *veto* acts of
> other (or some one or few other) intergovernmental bodies that
> actually do start enacting binding "legislation."  You might be able
> to get freedom-loving countries to endorse constructing something like
> that, and while it's not as solid as court rulings that keep all
> lawlike activities in check more definitively, it would be a solid
> register of the priority of rights.
>
> There are a lot of holes in that, but I think it conveys something of
> the kind of concerns and how they might be approached that we should
> really have in mind rather than blindly handing things off to the
> international arena (which is really *always* "intergovernmental" --
> governments are the entities that act there).
>
> So, that's a sort of answer, stab at describing things properly and
> with some sort of practical conception.  I don't press specific
> solutions though, just describe notions that I think can give people a
> better understanding of the real nature of the difficulties and
> problems involved.
>
> Ponder that; you'll think of plenty of problems with it.  But the
> important thing is this is a far more real characterization of the
> situation.  And I describe an idea like this solely to set a proper
> stage for talking about things with a better sense of what's going on.
> Take it as a brainstorm.  But also take it as a reality check and a
> call and challenge to try to define and understand the situation
> properly and well.
>
> (The above line of exposition talks mostly about governmental-related
> issues.  The issues brought by the corporate form are a whole other
> area that also needs fuller appreciation.  And really, we most want
> not to be so governmental [even those of us stressing the validity of
> the role of government]; we want to just build our Internet and let
> that be mostly a discussion of how to solve problems in a technical
> way and one where our rights aren't on the line.)
>
> See what you think of that.
>
>
> Seth
>
>> Thanks
>>
>> (*) I only have one scenario for now but I'm numbering #1 just in case
>> others come up later in the discussion.
>>
>> /Brought to you by Mawaki's droid agent
>>
>> On Jun 10, 2015 3:57 PM, "Seth Johnson" <seth.p.johnson at gmail.com> wrote:
>>>
>>> I believe the most important focus is on the question of how to
>>> install effective fundamental liberties limits in the context of an
>>> international political forum.  That's how you can hope to maintain
>>> the type of stewardship context we want associated with a medium of
>>> communication.  The presence of recourse of that sort -- related to
>>> being based in a national context -- is one of the main reasons why
>>> ICANN has not gone further off the rails.  Same as for government in
>>> general in such a national context: we don't get the government
>>> meddling specifically because the relationship to the national context
>>> (via the bare presence of NTIA) means the people (at least of the US)
>>> have recourse against it if it does.
>>>
>>> Keep in mind that one of the chief reasons why Obama (and his
>>> predecessor) have gone off the rails with surveillance and other
>>> fundamental rights violations is because they have the notion that the
>>> international arena provides means to act that way without the
>>> recourse we have against it domestically.  There's still the problem
>>> of laundering the surveillance by having private corporations (whether
>>> telco or app) do it on the government's behalf.  But we see an effort
>>> at long last to try to "legitimize" what they're doing that way at
>>> least (more apparent effort to not violate citizens in the domestic
>>> sphere), because we finally got standing in the courts, and
>>> documentation that was taken seriously via Snowden.  Still just
>>> domestic, so that doesn't answer general concerns, but this should
>>> highlight the nature of the problem.  You don't actually have
>>> fundamental rights in the international arena, no matter how many
>>> human rights treaties you pass.  That's not what secures rights
>>> against acts of governments.
>>>
>>> Note that this is stuff the UN has been utterly clueless about for
>>> years and years and years, along with many followers-on.  And I think
>>> in general the parties who have been acting in the international arena
>>> like it that way.  We, the people(s), are really the ones to bring it
>>> into the discourse in a real way, now that we are here in proceedings
>>> that deign to appear to engage us substantively in international
>>> policy.
>>>
>>>
>>> Seth
>>>
>>> On Wed, Jun 10, 2015 at 10:36 AM, Michael Froomkin - U.Miami School of
>>> Law <froomkin at law.miami.edu> wrote:
>>>> On Wed, 10 Jun 2015, Chris Prince Udochukwu Njoku wrote:
>>>>
>>>>>
>>>>> Parminder is emphasizing a true point. An organization which represents
>>>>> the
>>>>> interests of many nations, though located in one nation (as it must be)
>>>>> must
>>>>> not be subjected to laws that ought to be (and are) for national
>>>>
>>>>
>>>> It is, I think, possible to act as a trustee of international interests
>>>> while still having accountability rooted in national law.  It may not be
>>>> possible to accommodate the desires of governments to, in effect, serve
>>>> directly on the governing body given the view of e.g. the Brazilian
>>>> government that this is unacceptable subordination to another state, but
>>>> some may see that as a feature rather than a bug.
>>>>
>>>>
>>>>> organizations. This should be the definition of international
>>>>> jurisdiction
>>>>> here. If the host nation's laws don't actually accommodate the
>>>>> multinational
>>>>> stakeholding nature of the organization, it's a ripe clue to the need
>>>>> for
>>>>> relocation to a place that is more friendly to the organization's
>>>>> operations.
>>>>>
>>>>
>>>> The above contains a term that (to a lawyer) has multiple possible
>>>> meanings.
>>>> The traditional way to " accommodate the multinational ... nature" of an
>>>> organization is to incorporate it in Switzerland, and have no effective
>>>> supervision.  FIFA.  IOC.  No thanks.
>>>>
>>>> So I would ask, what is the threat model here?  What is a (mildly
>>>> realistic)
>>>> example of a scenario in which one fears the entity will do something
>>>> legitimate and a national court (of the US, Canada, the nation of your
>>>> choice) would have an appreciable chance of blocking it?  I would note,
>>>> for
>>>> example, that the only time I can think of that a US court overruled
>>>> ICANN
>>>> was when it froze out one of its own directors because the staff
>>>> disagreed
>>>> with his views.  That violated California law empowering directors not
>>>> to
>>>> mention any sense of natural justice.  The result was not only just, it
>>>> was
>>>> necessary.  And it is Exhibit A as to why we cannot simply trust in
>>>> ICANN,
>>>> or New New Co's, good faith.
>>>>
>>>> In other words, I submit that national court supervision in an
>>>> appropriate
>>>> and democratic jurisdiction is far, far more likely to produce good
>>>> outcomes
>>>> than bad ones, while the removal of this valuable check is almost
>>>> certain to
>>>> lead to difficulties.  What is more, those difficulties will not be
>>>> prevented by having the body be "international" for any currently known
>>>> meaning of the term.
>>>>
>>>> Contrary to other messages in this thread, I do not believe that there
>>>> is
>>>> much in the way of effective monitoring of many multi-national treaty
>>>> bodies
>>>> other than by action of the member states.  No one else has much real
>>>> leverage over WIPO, GATT, you name it.  NGOs have some moral and
>>>> intellectual suasion, but some of their clout also comes from the fact
>>>> that
>>>> it influences or might influence the members.
>>>>
>>>> I prefer to attempt to engineer a much surer means of dealing with major
>>>> and
>>>> substantially foreseeable problems.
>>>>
>>>>
>>>>> On Jun 10, 2015 11:27 AM, "parminder" <parminder at itforchange.net>
>>>>> wrote:
>>>>>
>>>>>
>>>>>       On Tuesday 09 June 2015 09:09 PM, Michael Froomkin - U.Miami
>>>>>       School of
>>>>>       Law wrote:
>>>>>      > On Tue, 9 Jun 2015, parminder wrote:
>>>>>      >
>>>>>      >> Are you saying that it is not possible for ICANN to undertake
>>>>>       the
>>>>>      >> functions that it needs to
>>>>>      >> undertake while being an international institution
>>>>>       incorporated under
>>>>>      >> international law, and free
>>>>>      >> from any countries jurisdiction in terms of its basic
>>>>>       governance
>>>>>      >> functions? I just want to be clear.
>>>>>      >
>>>>>      > I don't know what an "an international institution
>>>>>       incorporated under
>>>>>      > international law" is except bodies like FIFA (under Swiss
>>>>>       law), or UN
>>>>>      > bodies, or sui generis treaty bodies.  It is certainly
>>>>>       *possible* for
>>>>>      > ICANN to have any of those statuses and to "function"; as far
>>>>>       as I can
>>>>>      > tell, however, it's just not possible to build in meaningful
>>>>>      > accountability in those structures.
>>>>>
>>>>>       There are of course problems and issues everywhere, but it can
>>>>>       hardly be
>>>>>       said that UN and/or treaty bodies work without meaningful
>>>>>       accountability. Further, any new international treaty/ law
>>>>>       establishing
>>>>>       a new body - an really international ICANN for instance - can
>>>>>       write all
>>>>>       the accountability method it or we want to have written in it.
>>>>>      >
>>>>>      > There is no general international law of incorporation of
>>>>>       which I am
>>>>>      > aware.  Corporate (formation) law is all national law.  That
>>>>>       is the
>>>>>      > reality that must be confronted.  There is no place I can go
>>>>>       to get an
>>>>>      > international corporate charter, and good thing too - why
>>>>>       should I be
>>>>>      > able to exempt myself from national law?
>>>>>
>>>>>       This hits a fundamental issue - I see ICANN, in its ideal form,
>>>>>       as a
>>>>>       governance body, since it does governance functions, and not as
>>>>>       a
>>>>>       private corporation. So we need a new international treaty
>>>>>       sanctifying
>>>>>       ICANN as a global governance body - with its basic forms largely
>>>>>       unchanged, with new accountability means (including judicial
>>>>>       accountability) and not ways to be able incorporate a private
>>>>>       kind of an
>>>>>       entity outside national laws, which is admittedly both very
>>>>>       difficult,
>>>>>       and rather undesirable.
>>>>>
>>>>>       parminder
>>>>>
>>>>>      >
>>>>>      >>
>>>>>      >> If so, that would be an interesting assertion. Now, I am sure
>>>>>       this is
>>>>>      >> not true. However, I am not an
>>>>>      >> international legal expert and not able to right now build
>>>>>       and
>>>>>      >> present the whole scenario for you on
>>>>>      >> how it can be done. I am sure there are a number of
>>>>>       international
>>>>>      >> organisations that do different
>>>>>      >> kind of complex activities and have found ways to do it under
>>>>>      >> international law and jurisdiction.
>>>>>      >
>>>>>      > But those are in the main treaty bodies.
>>>>>      >
>>>>>      >> And if some new directions and evolutions are needed that can
>>>>>       also be
>>>>>      >> worked out (please see my last
>>>>>      >> email on this count).
>>>>>      >>
>>>>>      >
>>>>>      > Here we just disagree. I see the task as monsterously hard,
>>>>>       the work
>>>>>      > of a decade or more.
>>>>>      >
>>>>>      >> BTW it is a sad statement on the geo political economy of
>>>>>       knowledge
>>>>>      >> production in this area that
>>>>>      >> there is not one full fledged scenario developed by anyone on
>>>>>       how
>>>>>      >> ICANN can undertakes its
>>>>>      >> activities under international law/ jurisdiction - which I am
>>>>>       pretty
>>>>>      >> sure it can. Many parties,
>>>>>      >> including governments have called for it, and yes I agree
>>>>>       someone
>>>>>      >> should come up with a full
>>>>>      >> politico-legal and institutional description of how it can
>>>>>       and should
>>>>>      >> be done - with all the details
>>>>>      >> in place. And that is the sad part of it, of how things stand
>>>>>       at the
>>>>>      >> global level, had now lopsided
>>>>>      >> is resource distribution, all kinds of resources.
>>>>>      >>
>>>>>      >
>>>>>      > Alas.
>>>>>      >
>>>>>      >> Not to shy away from responsibility - I am happy to
>>>>>       collaborate with
>>>>>      >> anyone if someone can out time
>>>>>      >> into it.
>>>>>      >>
>>>>>      >> And no, it cannot be solved by any other country
>>>>>       jurisdiction. Apart
>>>>>      >> from it being still being wrong
>>>>>      >> in principle, how would US accept that another jurisdiction
>>>>>       is better
>>>>>      >> than its own and accede to
>>>>>      >> such a change. Accepting the patently justified fact that an
>>>>>      >> international infrastructure should be
>>>>>      >> governed internationally, on the other hand, is much easier .
>>>>>      >>
>>>>>      >
>>>>>      > I would not dismiss this so quickly.  I take a substantial
>>>>>       fraction of
>>>>>      > the opposition to US residual control (for that is all we are
>>>>>       talking
>>>>>      > about) to be tied to the US's status as defacto hegemon.
>>>>>       Moving ICANN
>>>>>      > to another state with a strong human rights record would
>>>>>       answer that
>>>>>      > part of the critique.
>>>>>      >
>>>>>      > In my view, a bespoke international structure is actually much
>>>>>       harder
>>>>>      > -- it would need to be invented almost from scratch.  And it
>>>>>       is bound
>>>>>      > to be flawed; national rules are the result of at least
>>>>>       decades if not
>>>>>      > more of trial and error.
>>>>>      >
>>>>>      >> parminder
>>>>>      >>
>>>>>      >> On Tuesday 09 June 2015 07:31 PM, Michael Froomkin - U.Miami
>>>>>       School
>>>>>      >> of Law wrote:
>>>>>      >>       I don't know what it means to say that ICANN should be
>>>>>       subject
>>>>>      >> to "international
>>>>>      >>       jurisdiction and law".  For the relevant issues, that
>>>>>       sounds
>>>>>      >> like a pretty empty set.
>>>>>      >>
>>>>>      >>       As regards most of the sort of things one might expect
>>>>>       to worry
>>>>>      >> about - e.g. fidelity to
>>>>>      >>       articles of incorporation - international law is
>>>>>       basically
>>>>>      >> silent.  And there is no
>>>>>      >>       relevant jurisdiction either.  So I remain stuck in the
>>>>>      >> position that there must be a
>>>>>      >>       state anchor whose courts are given the job.  It does
>>>>>       not of
>>>>>      >> course need to be the US,
>>>>>      >>       although I would note that the US courts are by
>>>>>       international
>>>>>      >> standards not shy and
>>>>>      >>       actually fairly good at this sort of thing.
>>>>>      >>
>>>>>      >>       I do think, however, that it should NOT be Switzerland,
>>>>>       as its
>>>>>      >> courts are historically
>>>>>      >>       over-deferential to international bodies - perhaps as
>>>>>       part of
>>>>>      >> state policy to be an
>>>>>      >>       attractive location for those high-spending
>>>>>       international
>>>>>      >> meetings.
>>>>>      >>
>>>>>      >>       I'd be real happy with Canada, though.
>>>>>      >>
>>>>>      >>       On Tue, 9 Jun 2015, parminder wrote:
>>>>>      >>
>>>>>      >>
>>>>>      >>
>>>>>      >>             On Tuesday 09 June 2015 06:26 PM, Michael
>>>>>       Froomkin -
>>>>>      >> U.Miami School of Law
>>>>>      >>             wrote:
>>>>>      >>
>>>>>      >>                   I think that bodies which do not need to
>>>>>       fear
>>>>>      >> supervision by
>>>>>      >>             legitimate courts end up
>>>>>      >>                   like FIFA. FIFA had a legal status in
>>>>>       Switzerland
>>>>>      >> that basically
>>>>>      >>             insulated it the way
>>>>>      >>                   that the Brazilian document seems to
>>>>>       suggest would
>>>>>      >> be what they want
>>>>>      >>             for ICANN.  (It's
>>>>>      >>                   also the legal status ICANN has at times
>>>>>       suggested
>>>>>      >> it would like.)
>>>>>      >>
>>>>>      >>                   The lesson of history seems unusually clear
>>>>>       here.
>>>>>      >>
>>>>>      >>
>>>>>      >>             Agree that ICANN cannot be left jurisdictionally
>>>>>      >> un-supervised - that may be
>>>>>      >>             even more dangerous
>>>>>      >>             than the present situation. However, the right
>>>>>      >> supervision or oversight is
>>>>>      >>             of international
>>>>>      >>             jurisdiction and law, not that of the US . This
>>>>>       is what
>>>>>      >> Brazil has to make
>>>>>      >>             upfront as the
>>>>>      >>             implication of what it is really seeking, and its
>>>>>       shyness
>>>>>      >> and reticence to
>>>>>      >>             say so is what I noted as
>>>>>      >>             surprising in an earlier email in this thread.
>>>>>       Not
>>>>>      >> putting out clearly what
>>>>>      >>             exactly it wants would
>>>>>      >>             lead to misconceptions about its position, which
>>>>>       IMHO can
>>>>>      >> be seen from how
>>>>>      >>             Michael reads it.  I am
>>>>>      >>             sure this is not how Brazil meant it - to free
>>>>>       ICANN from
>>>>>      >> all kinds of
>>>>>      >>             jurisdictional oversight
>>>>>      >>             whatsoever - but then Brazil needs to say clearly
>>>>>       what is
>>>>>      >> it that it wants,
>>>>>      >>             and how can it can
>>>>>      >>             obtained. Brazil, please come out of your
>>>>>       NetMundial
>>>>>      >> hangover and take
>>>>>      >>             political responsibility for
>>>>>      >>             what you say and seek!
>>>>>      >>
>>>>>      >>             parminder
>>>>>      >>
>>>>>      >>
>>>>>      >>
>>>>>      >>                   On Tue, 9 Jun 2015, Mawaki Chango wrote:
>>>>>      >>
>>>>>      >>
>>>>>      >>                         It's good to see a law scholar
>>>>>       involved in
>>>>>      >> this discussion. I'll
>>>>>      >>             leave it to
>>>>>      >>                         the Brazilian party to
>>>>>      >>                         ultimate tell whether your reading is
>>>>>       correct
>>>>>      >> or not. In the
>>>>>      >>             meantime I'd
>>>>>      >>                         volunteer the following
>>>>>      >>                         comments.
>>>>>      >>
>>>>>      >>                         On Jun 8, 2015 10:46 PM, "Michael
>>>>>       Froomkin -
>>>>>      >> U.Miami School of
>>>>>      >>             Law"
>>>>>      >>                         <froomkin at law.miami.edu> wrote:
>>>>>      >>                        >
>>>>>      >>                        > Perhaps I'm misreading something,
>>>>>       but I
>>>>>      >> read this document to
>>>>>      >>             make the
>>>>>      >>                         following assertions:
>>>>>      >>                        >
>>>>>      >>                        > 1. All restrictions on ICANN's
>>>>>       location
>>>>>      >> must be removed.
>>>>>      >>                        >
>>>>>      >>
>>>>>      >>                         And the question reopened for
>>>>>       deliberation by
>>>>>      >> all stakeholders,
>>>>>      >>             including
>>>>>      >>                         governments among others.
>>>>>      >>                         Only the outcome of such deliberation
>>>>>       will be
>>>>>      >> fully legitimate
>>>>>      >>             within the
>>>>>      >>                         framework of the post-2015
>>>>>      >>                         ICANN.
>>>>>      >>
>>>>>      >>                        > 2. ICANN does not have to leave the
>>>>>       US but
>>>>>      >> must be located in
>>>>>      >>             a place
>>>>>      >>                         where the governing law has
>>>>>      >>                         certain characteristics, including
>>>>>       not having
>>>>>      >> the possibiliity
>>>>>      >>             that courts
>>>>>      >>                         overrule ICANN (or at
>>>>>      >>                         least the IRP).
>>>>>      >>                        >
>>>>>      >>                        > (And, as it happens, the US is not
>>>>>       such a
>>>>>      >> place....)
>>>>>      >>                        >
>>>>>      >>
>>>>>      >>                         Not only avoiding courts overruling
>>>>>       relevant
>>>>>      >> outcomes of the
>>>>>      >>             Internet global
>>>>>      >>                         community processes,
>>>>>      >>                         but also examining and resolving the
>>>>>       possible
>>>>>      >>             interferences/conflicts that
>>>>>      >>                         might arise for
>>>>>      >>                         government representatives being
>>>>>       subject to a
>>>>>      >> foreign country
>>>>>      >>             law simply in
>>>>>      >>                         the process of attending
>>>>>      >>                         to their regular duties (if they were
>>>>>       to be
>>>>>      >> fully engaged with
>>>>>      >>             ICANN).
>>>>>      >>
>>>>>      >>                         Quote:
>>>>>      >>
>>>>>      >>
>>>>>      >> "From the Brazilian perspective the existing structure
>>>>>       clearly imposes limits to the participation
>>>>>      >>
>>>>>      >>
>>>>>      >>      ???of governmental representatives, as it is unlikely
>>>>>       that a representative of a foreign government
>>>>>      >>              w
>>>>>      >>                   i
>>>>>      >> ll be authorized (by its own government) to formally accept a
>>>>>       position in a body pertaining to a U.
>>>>>      >>
>>>>>      >>
>>>>>      >>
>>>>>      >>                         S. corporation."
>>>>>      >>
>>>>>      >>                         This may be what you're getting at
>>>>>       with your
>>>>>      >> point 3 below, but
>>>>>      >>             I'm not sure
>>>>>      >>                         whether the problem is
>>>>>      >>                         only the fact that governments have
>>>>>       to deal
>>>>>      >> with a corporate
>>>>>      >>             form/law or
>>>>>      >>                         whether it is altogether
>>>>>      >>                         the fact that it is a single country
>>>>>       law
>>>>>      >> without any form of
>>>>>      >>             deliberate
>>>>>      >>                         endorsement by the other
>>>>>      >>                         governments (who also have law making
>>>>>       power
>>>>>      >> in their respective
>>>>>      >>             country just
>>>>>      >>                         as the US government).
>>>>>      >>
>>>>>      >>                         Assuming your reading is correct, and
>>>>>       if
>>>>>      >> necessary complemented
>>>>>      >>             by my
>>>>>      >>                         remarks above, I'd be
>>>>>      >>                         interested in hearing from you about
>>>>>       any
>>>>>      >> issues you may see with
>>>>>      >>             the BR gov
>>>>>      >>                         comments.
>>>>>      >>                         Thanks,
>>>>>      >>
>>>>>      >>                         Mawaki
>>>>>      >>
>>>>>      >>                        >
>>>>>      >>                        > 3. ICANN doesn't have to change its
>>>>>       form,
>>>>>      >> but it needs a form
>>>>>      >>             where
>>>>>      >>                         governments are comfortable.
>>>>>      >>                        >
>>>>>      >>                        > (And, as it happens, the corporate
>>>>>       form is
>>>>>      >> not such a
>>>>>      >>             form....)
>>>>>      >>                        >
>>>>>      >>                        >
>>>>>      >>                        > What am I missing?
>>>>>      >>                        >
>>>>>      >>                        >
>>>>>      >>                        >
>>>>>      >>                        > On Sat, 6 Jun 2015, Carlos A.
>>>>>       Afonso wrote:
>>>>>      >>                        >
>>>>>      >>                        >> For the ones who are following the
>>>>>       IANA
>>>>>      >> transition process:
>>>>>      >>             attached
>>>>>      >>                        >> please find the comments posted by
>>>>>       the
>>>>>      >> government of Brazil
>>>>>      >>             on June 03,
>>>>>      >>                        >> 2015, in response to the call for
>>>>>       public
>>>>>      >> comments on the
>>>>>      >>                        >> CCWG-Accountability Initial Draft
>>>>>       Proposal.
>>>>>      >>                        >>
>>>>>      >>                        >> I generally agree with the
>>>>>       comments.
>>>>>      >>                        >>
>>>>>      >>                        >> fraternal regards
>>>>>      >>                        >>
>>>>>      >>                        >> --c.a.
>>>>>      >>                        >>
>>>>>      >>                        >
>>>>>      >>                        > --
>>>>>      >>                        > A. Michael Froomkin, http://law.tm
>>>>>      >>                        > Laurie Silvers & Mitchell
>>>>>       Rubenstein
>>>>>      >> Distinguished Professor
>>>>>      >>             of Law
>>>>>      >>                        > Editor, Jotwell: The Journal of
>>>>>       Things We
>>>>>      >> Like (Lots),
>>>>>      >>             jotwell.com
>>>>>      >>                        > Program Chair, We Robot 2016 | +1
>>>>>       (305)
>>>>>      >> 284-4285 |
>>>>>      >>             froomkin at law.tm
>>>>>      >>                        > U. Miami School of Law, P.O. Box
>>>>>       248087,
>>>>>      >> Coral Gables, FL
>>>>>      >>             33124 USA
>>>>>      >>                        >                         -->It's
>>>>>       warm here.<--
>>>>>      >>                        >
>>>>>      >> ____________________________________________________________
>>>>>      >>                        >
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>>>>>      >>                        >
>>>>>      >> ____________________________________________________________
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>>>>>      >>
>>>>>      >>
>>>>>        ____________________________________________________________
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>>>>>
>>>>>
>>>>>
>>>>>
>>>>>       ____________________________________________________________
>>>>>       You received this message as a subscriber on the list:
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>>>>
>>>> --
>>>> A. Michael Froomkin, http://law.tm
>>>> Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
>>>> Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
>>>> Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
>>>> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
>>>>                         -->It's warm here.<--
>>>>
>>>> ____________________________________________________________
>>>>
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>>>>
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>>>>
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>

-- 
A. Michael Froomkin, http://law.tm
Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
                         -->It's warm here.<--
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From seth.p.johnson at gmail.com  Wed Jun 10 21:22:09 2015
From: seth.p.johnson at gmail.com (Seth Johnson)
Date: Wed, 10 Jun 2015 21:22:09 -0400
Subject: [governance] IANA transition - BR Gov comments on the
 CCWG-Accountability Draft Proposal
In-Reply-To: <alpine.LRH.2.00.1506101902540.11271@post.law.miami.edu>
References: <557378D2.6030503@cafonso.ca> <alpine.LRH.2.00.1506081844300.5383@post.law.miami.edu>
 <CACTo+v_RMTkfU95sHL1PGorTSrfsmV+aLv57dVN2G-p+kqM0dQ@mail.gmail.com>
 <alpine.LRH.2.00.1506090854280.12194@post.law.miami.edu> <5576ED01.9010606@itforchange.net>
 <alpine.LRH.2.00.1506090955160.12194@post.law.miami.edu> <55770298.20609@itforchange.net>
 <alpine.LRH.2.00.1506091131280.12194@post.law.miami.edu> <557802CE.4080505@itforchange.net>
 <CAOz-jXSR0tQFx8RV4Rtw_O=RbsHSNnRwQbZCsYA-9QTXBV-cnQ@mail.gmail.com>
 <alpine.LRH.2.00.1506101025020.8188@post.law.miami.edu> <CAJkfFByPDZj=6erciGUHiyAtCqSCSrpB1HQUCdGfm3QuMM2iTA@mail.gmail.com>
 <CACTo+v89idk43xf9+8GuwtuxfKD=h7QDay6KsDN-rzswRAETAQ@mail.gmail.com>
 <CAJkfFBwSGPfkSiKG_-OBSceua1aohek5R2Vf6nu+jhNT2dC5bQ@mail.gmail.com> <alpine.LRH.2.00.1506101902540.11271@post.law.miami.edu>
Message-ID: <CAJkfFBzTBnp3Mc1r3BxCxtAjqtcX_Ftp+opdE_yqRyrBcE3R=Q@mail.gmail.com>

On Wed, Jun 10, 2015 at 7:11 PM, Michael Froomkin - U.Miami School of
Law <froomkin at law.miami.edu> wrote:
> Just to head off a possible and no doubt unintentional misunderstanding:
>
> Non-US persons have recourse to US courts for many things, including
> contractual rights.  Non-US persons located outside the US do not, in the
> main, have the right to make constitutional claims or defenses against the
> US government.  But since ICANN, or New New Co., is not part of the US
> government, this is not relevant.
>
> If a corporation is located in a US state, then it can be sued there by
> **anyone*** from ***anywhere*** so long as they are in fact alleging facts
> showing they were wronged by it.  In other words, the issue is what (mainly
> private law) rights one might have to assert, not whether the court will
> hear you due to your citizenship or domicile or even (if represented by
> counsel) location.


Right.  I am speaking specifically about fundamental rights claims
against the government, which is the key thing I emphasize we need to
understand.  I am also not talking about the issues related to the
corporate form.  I believe I am correct that there would be a basis
for recourse against the US government via the NTIA connection, though
I'm unsure about whether that basis applies to ICANN in particular in
the present relationship.  Removing that connection in the IANA
functions would remove even that basis for a fundamental rights claim
as it's then private.  I'm not too sure how strong the basis for the
claim via NTIA would be, but if it's a question of fundamental rights
it would be heightened scrutiny inasmuch as the activities in question
can be attributed to the US government.  And the US doesn't muck
around with the IANA or any other Internet-related stewardship area,
as it's all so close to areas of free speech, association, press (and
searches and seizures) (which is central to my message here)  --
except through the international arena, where there are ways to get in
there (and which is really a big part of what's going on with the
whole transition, whether IANA or "Internet governance" in general).

My emphasis in this thread is not on the corporate form, or private
issues in general.  You and I are talking about different angles, but
I am also concerned about the corporate angle; I just emphasize that
on a kind of first principles basis (and things that I think need to
be understood in general as first principles), the way to examine a
transition to the international arena should be looked at in this
light first.

One can certainly go to court in the US on all sorts of diversity
jurisdiction bases -- other than fundamental rights claims, which as
you say have to be of a citizen against their government.

I have plenty to say about the corporate form, but it's a very
different story.  That tends to be what people talk about first.
People want to talk that way rather than sound like they're
questioning "good governance" in this area (which I'm not; I might
sound  anti-government or like a latter-day radical libertarian here,
but I'm really just describing the relationship between people and
their fundamental rights and the government).  However, I think we get
someplace clearer, sooner, in terms of properly characterizing the
international arena, with regard to fundamental rights.

I really want to go way back on the corporate form and the whole US
legacy of federal common law and forum shopping.  But we really messed
that domain up royally, from way back.  Then again, we didn't know
enough to consider it as an issue for the constitutional moment, which
I think it really should have been if we'd known enough back then.


Seth



> On Wed, 10 Jun 2015, Seth Johnson wrote:
>
>> On Wed, Jun 10, 2015 at 2:51 PM, Mawaki Chango <kichango at gmail.com> wrote:
>>>
>>> Simple and maybe trivial question, again (since my previous one about
>>> delegation hasn't found a taker.)
>>>
>>> Scenario 1*: I am a citizen of Togo, quite a small country sitting on the
>>> belly of Africa to the west (you may check our macro economic indicators
>>> in
>>> the CIA Facebook or from the World Bank online sources.) I am a domain
>>> name
>>> registrant. In year 2018 ICANN makes a decision, later upheld by the
>>> conflict resolution mechanism in place, but which I think violates my
>>> fundamental rights as I understand them by any international standards. I
>>> am
>>> even pretty convinced that I might win the case in a US court based on
>>> the
>>> documentation available /jurisprudence in that country. Problem is, I
>>> have
>>> no access to the institutional resources that would allow me to use the
>>> US
>>> judicial system as a plaintiff, much less the financial resources it
>>> would
>>> take to get a lawyer to represent my interests.
>>>
>>> Is that -- the need for everybody to be equal before the law, in
>>> practice,
>>> and have their rights equally secured, -- in your view, a problem worthy
>>> of
>>> our attention? If so how can we address it.
>>
>>
>>
>> It is.  But no, you would not have recourse to US courts.  The problem
>> for the international arena is that nobody has that "trump card"
>> recourse that keeps governments in check *other than* those who have a
>> claim that their own government is doing or allowing things to happen
>> that violate their own fundamental rights as a citizen.  The kind of
>> rights you get internationally are really almost what we call
>> statutory rights -- the problem being that the "legislature" can
>> always rewrite those kinds of rights.  Or, since in fact going and
>> revising a treaty provision regarding rights poses some political
>> difficulty, what you'll see more often is that the rights expressed in
>> treaties have no more weight against things like "national interests"
>> or "national security" or the "war on" x, y, and z -- than a
>> "balancing standard."  Governments can well do whatever they say is
>> necessary (like vacuum up all communications for surveillance, or for,
>> hey, regular spying) for their national interests and they essentially
>> just "bear in mind" whatever rights are expressed in treaties.  And no
>> judge in an ostensible international tribunal can really simply cancel
>> a treaty the way they can an unconstitutional law in a national
>> context (without a clear founding act prior to the government, where
>> the people(s) claim their priority and authorize government(s) to
>> proceed only under certain limits).  Treaties are agreements among
>> governments, so what the governments "meant" is what you have to
>> deliberate over in interpreting the treaties -- not over whether the
>> people have rights regardless of the governments' intention in the
>> treaty.  A judge would at best weigh treaty elements and try to
>> articulate how to settle all parts without saying any part is
>> "unconstitutional."  The problem is how to get the closest you can to
>> that kind of a "trump card" standing for fundamental rights.
>>
>> An ostensible "constitution" among governments (like the ITU's) has
>> the same problem.  In general, the way the real claim of priority of
>> the people and their rights happens is when the people self-evidently
>> act to fill in the gap when a government is rendered illegitimate (or
>> overthrown): acting independent of the pre-established government to
>> select delegates to their own constitutional convention, draft a
>> constitution, and then ratify it -- they thereby set a definitive
>> historical register of the people setting limits that the government
>> must thenceforth operate within to be legitimate.  This is called the
>> "constituent power."  Historians point at Massachusetts as the first
>> US colony/state to exercise the consttuent power that way -- when the
>> towns rejected the state constitution the state legislature had
>> written for them and insisted on having their own constitutional
>> process.  It was done by similar principles for the US federal
>> constitution.  That's how you get a fundamental right "trump card."
>>
>> If you have that, and it's exercised a few times well or for a while,
>> then you have a situation where goverments are in check -- they don't
>> overreach too obviously, or they test the boundaries but they get
>> trumped by a judiciary that's rooted that way.
>>
>> You posed the question of equal rights before the law, in the
>> international context.  I certainly do not advocate a global
>> revolution where all the people(s) seize a moment to stop their
>> governments and tell them how they may all proceed.
>>
>> What I have tended to suggest is approaches that can be interim
>> measures that tend towards the principles that we want to have in
>> play, but which we can't yet quite have in play.
>>
>> One approach that seems like a way towards that kind of conception
>> might be: Imagine a bicameral "House of Rights" or more narrowly an
>> "International Internet Communications Rights Forum."  It doesn't need
>> to say "Rights," though that's the point, so maybe call it an
>> "Internet Stewards House."  This is modeled like a legislature, with a
>> house to represent countries equally, and another house to represent
>> populations proportionally -- except it's not empowered to write law
>> (or treaties), but rather to play the role of voting to *veto* acts of
>> other (or some one or few other) intergovernmental bodies that
>> actually do start enacting binding "legislation."  You might be able
>> to get freedom-loving countries to endorse constructing something like
>> that, and while it's not as solid as court rulings that keep all
>> lawlike activities in check more definitively, it would be a solid
>> register of the priority of rights.
>>
>> There are a lot of holes in that, but I think it conveys something of
>> the kind of concerns and how they might be approached that we should
>> really have in mind rather than blindly handing things off to the
>> international arena (which is really *always* "intergovernmental" --
>> governments are the entities that act there).
>>
>> So, that's a sort of answer, stab at describing things properly and
>> with some sort of practical conception.  I don't press specific
>> solutions though, just describe notions that I think can give people a
>> better understanding of the real nature of the difficulties and
>> problems involved.
>>
>> Ponder that; you'll think of plenty of problems with it.  But the
>> important thing is this is a far more real characterization of the
>> situation.  And I describe an idea like this solely to set a proper
>> stage for talking about things with a better sense of what's going on.
>> Take it as a brainstorm.  But also take it as a reality check and a
>> call and challenge to try to define and understand the situation
>> properly and well.
>>
>> (The above line of exposition talks mostly about governmental-related
>> issues.  The issues brought by the corporate form are a whole other
>> area that also needs fuller appreciation.  And really, we most want
>> not to be so governmental [even those of us stressing the validity of
>> the role of government]; we want to just build our Internet and let
>> that be mostly a discussion of how to solve problems in a technical
>> way and one where our rights aren't on the line.)
>>
>> See what you think of that.
>>
>>
>> Seth
>>
>>> Thanks
>>>
>>> (*) I only have one scenario for now but I'm numbering #1 just in case
>>> others come up later in the discussion.
>>>
>>> /Brought to you by Mawaki's droid agent
>>>
>>> On Jun 10, 2015 3:57 PM, "Seth Johnson" <seth.p.johnson at gmail.com> wrote:
>>>>
>>>>
>>>> I believe the most important focus is on the question of how to
>>>> install effective fundamental liberties limits in the context of an
>>>> international political forum.  That's how you can hope to maintain
>>>> the type of stewardship context we want associated with a medium of
>>>> communication.  The presence of recourse of that sort -- related to
>>>> being based in a national context -- is one of the main reasons why
>>>> ICANN has not gone further off the rails.  Same as for government in
>>>> general in such a national context: we don't get the government
>>>> meddling specifically because the relationship to the national context
>>>> (via the bare presence of NTIA) means the people (at least of the US)
>>>> have recourse against it if it does.
>>>>
>>>> Keep in mind that one of the chief reasons why Obama (and his
>>>> predecessor) have gone off the rails with surveillance and other
>>>> fundamental rights violations is because they have the notion that the
>>>> international arena provides means to act that way without the
>>>> recourse we have against it domestically.  There's still the problem
>>>> of laundering the surveillance by having private corporations (whether
>>>> telco or app) do it on the government's behalf.  But we see an effort
>>>> at long last to try to "legitimize" what they're doing that way at
>>>> least (more apparent effort to not violate citizens in the domestic
>>>> sphere), because we finally got standing in the courts, and
>>>> documentation that was taken seriously via Snowden.  Still just
>>>> domestic, so that doesn't answer general concerns, but this should
>>>> highlight the nature of the problem.  You don't actually have
>>>> fundamental rights in the international arena, no matter how many
>>>> human rights treaties you pass.  That's not what secures rights
>>>> against acts of governments.
>>>>
>>>> Note that this is stuff the UN has been utterly clueless about for
>>>> years and years and years, along with many followers-on.  And I think
>>>> in general the parties who have been acting in the international arena
>>>> like it that way.  We, the people(s), are really the ones to bring it
>>>> into the discourse in a real way, now that we are here in proceedings
>>>> that deign to appear to engage us substantively in international
>>>> policy.
>>>>
>>>>
>>>> Seth
>>>>
>>>> On Wed, Jun 10, 2015 at 10:36 AM, Michael Froomkin - U.Miami School of
>>>> Law <froomkin at law.miami.edu> wrote:
>>>>>
>>>>> On Wed, 10 Jun 2015, Chris Prince Udochukwu Njoku wrote:
>>>>>
>>>>>>
>>>>>> Parminder is emphasizing a true point. An organization which
>>>>>> represents
>>>>>> the
>>>>>> interests of many nations, though located in one nation (as it must
>>>>>> be)
>>>>>> must
>>>>>> not be subjected to laws that ought to be (and are) for national
>>>>>
>>>>>
>>>>>
>>>>> It is, I think, possible to act as a trustee of international interests
>>>>> while still having accountability rooted in national law.  It may not
>>>>> be
>>>>> possible to accommodate the desires of governments to, in effect, serve
>>>>> directly on the governing body given the view of e.g. the Brazilian
>>>>> government that this is unacceptable subordination to another state,
>>>>> but
>>>>> some may see that as a feature rather than a bug.
>>>>>
>>>>>
>>>>>> organizations. This should be the definition of international
>>>>>> jurisdiction
>>>>>> here. If the host nation's laws don't actually accommodate the
>>>>>> multinational
>>>>>> stakeholding nature of the organization, it's a ripe clue to the need
>>>>>> for
>>>>>> relocation to a place that is more friendly to the organization's
>>>>>> operations.
>>>>>>
>>>>>
>>>>> The above contains a term that (to a lawyer) has multiple possible
>>>>> meanings.
>>>>> The traditional way to " accommodate the multinational ... nature" of
>>>>> an
>>>>> organization is to incorporate it in Switzerland, and have no effective
>>>>> supervision.  FIFA.  IOC.  No thanks.
>>>>>
>>>>> So I would ask, what is the threat model here?  What is a (mildly
>>>>> realistic)
>>>>> example of a scenario in which one fears the entity will do something
>>>>> legitimate and a national court (of the US, Canada, the nation of your
>>>>> choice) would have an appreciable chance of blocking it?  I would note,
>>>>> for
>>>>> example, that the only time I can think of that a US court overruled
>>>>> ICANN
>>>>> was when it froze out one of its own directors because the staff
>>>>> disagreed
>>>>> with his views.  That violated California law empowering directors not
>>>>> to
>>>>> mention any sense of natural justice.  The result was not only just, it
>>>>> was
>>>>> necessary.  And it is Exhibit A as to why we cannot simply trust in
>>>>> ICANN,
>>>>> or New New Co's, good faith.
>>>>>
>>>>> In other words, I submit that national court supervision in an
>>>>> appropriate
>>>>> and democratic jurisdiction is far, far more likely to produce good
>>>>> outcomes
>>>>> than bad ones, while the removal of this valuable check is almost
>>>>> certain to
>>>>> lead to difficulties.  What is more, those difficulties will not be
>>>>> prevented by having the body be "international" for any currently known
>>>>> meaning of the term.
>>>>>
>>>>> Contrary to other messages in this thread, I do not believe that there
>>>>> is
>>>>> much in the way of effective monitoring of many multi-national treaty
>>>>> bodies
>>>>> other than by action of the member states.  No one else has much real
>>>>> leverage over WIPO, GATT, you name it.  NGOs have some moral and
>>>>> intellectual suasion, but some of their clout also comes from the fact
>>>>> that
>>>>> it influences or might influence the members.
>>>>>
>>>>> I prefer to attempt to engineer a much surer means of dealing with
>>>>> major
>>>>> and
>>>>> substantially foreseeable problems.
>>>>>
>>>>>
>>>>>> On Jun 10, 2015 11:27 AM, "parminder" <parminder at itforchange.net>
>>>>>> wrote:
>>>>>>
>>>>>>
>>>>>>       On Tuesday 09 June 2015 09:09 PM, Michael Froomkin - U.Miami
>>>>>>       School of
>>>>>>       Law wrote:
>>>>>>      > On Tue, 9 Jun 2015, parminder wrote:
>>>>>>      >
>>>>>>      >> Are you saying that it is not possible for ICANN to undertake
>>>>>>       the
>>>>>>      >> functions that it needs to
>>>>>>      >> undertake while being an international institution
>>>>>>       incorporated under
>>>>>>      >> international law, and free
>>>>>>      >> from any countries jurisdiction in terms of its basic
>>>>>>       governance
>>>>>>      >> functions? I just want to be clear.
>>>>>>      >
>>>>>>      > I don't know what an "an international institution
>>>>>>       incorporated under
>>>>>>      > international law" is except bodies like FIFA (under Swiss
>>>>>>       law), or UN
>>>>>>      > bodies, or sui generis treaty bodies.  It is certainly
>>>>>>       *possible* for
>>>>>>      > ICANN to have any of those statuses and to "function"; as far
>>>>>>       as I can
>>>>>>      > tell, however, it's just not possible to build in meaningful
>>>>>>      > accountability in those structures.
>>>>>>
>>>>>>       There are of course problems and issues everywhere, but it can
>>>>>>       hardly be
>>>>>>       said that UN and/or treaty bodies work without meaningful
>>>>>>       accountability. Further, any new international treaty/ law
>>>>>>       establishing
>>>>>>       a new body - an really international ICANN for instance - can
>>>>>>       write all
>>>>>>       the accountability method it or we want to have written in it.
>>>>>>      >
>>>>>>      > There is no general international law of incorporation of
>>>>>>       which I am
>>>>>>      > aware.  Corporate (formation) law is all national law.  That
>>>>>>       is the
>>>>>>      > reality that must be confronted.  There is no place I can go
>>>>>>       to get an
>>>>>>      > international corporate charter, and good thing too - why
>>>>>>       should I be
>>>>>>      > able to exempt myself from national law?
>>>>>>
>>>>>>       This hits a fundamental issue - I see ICANN, in its ideal form,
>>>>>>       as a
>>>>>>       governance body, since it does governance functions, and not as
>>>>>>       a
>>>>>>       private corporation. So we need a new international treaty
>>>>>>       sanctifying
>>>>>>       ICANN as a global governance body - with its basic forms largely
>>>>>>       unchanged, with new accountability means (including judicial
>>>>>>       accountability) and not ways to be able incorporate a private
>>>>>>       kind of an
>>>>>>       entity outside national laws, which is admittedly both very
>>>>>>       difficult,
>>>>>>       and rather undesirable.
>>>>>>
>>>>>>       parminder
>>>>>>
>>>>>>      >
>>>>>>      >>
>>>>>>      >> If so, that would be an interesting assertion. Now, I am sure
>>>>>>       this is
>>>>>>      >> not true. However, I am not an
>>>>>>      >> international legal expert and not able to right now build
>>>>>>       and
>>>>>>      >> present the whole scenario for you on
>>>>>>      >> how it can be done. I am sure there are a number of
>>>>>>       international
>>>>>>      >> organisations that do different
>>>>>>      >> kind of complex activities and have found ways to do it under
>>>>>>      >> international law and jurisdiction.
>>>>>>      >
>>>>>>      > But those are in the main treaty bodies.
>>>>>>      >
>>>>>>      >> And if some new directions and evolutions are needed that can
>>>>>>       also be
>>>>>>      >> worked out (please see my last
>>>>>>      >> email on this count).
>>>>>>      >>
>>>>>>      >
>>>>>>      > Here we just disagree. I see the task as monsterously hard,
>>>>>>       the work
>>>>>>      > of a decade or more.
>>>>>>      >
>>>>>>      >> BTW it is a sad statement on the geo political economy of
>>>>>>       knowledge
>>>>>>      >> production in this area that
>>>>>>      >> there is not one full fledged scenario developed by anyone on
>>>>>>       how
>>>>>>      >> ICANN can undertakes its
>>>>>>      >> activities under international law/ jurisdiction - which I am
>>>>>>       pretty
>>>>>>      >> sure it can. Many parties,
>>>>>>      >> including governments have called for it, and yes I agree
>>>>>>       someone
>>>>>>      >> should come up with a full
>>>>>>      >> politico-legal and institutional description of how it can
>>>>>>       and should
>>>>>>      >> be done - with all the details
>>>>>>      >> in place. And that is the sad part of it, of how things stand
>>>>>>       at the
>>>>>>      >> global level, had now lopsided
>>>>>>      >> is resource distribution, all kinds of resources.
>>>>>>      >>
>>>>>>      >
>>>>>>      > Alas.
>>>>>>      >
>>>>>>      >> Not to shy away from responsibility - I am happy to
>>>>>>       collaborate with
>>>>>>      >> anyone if someone can out time
>>>>>>      >> into it.
>>>>>>      >>
>>>>>>      >> And no, it cannot be solved by any other country
>>>>>>       jurisdiction. Apart
>>>>>>      >> from it being still being wrong
>>>>>>      >> in principle, how would US accept that another jurisdiction
>>>>>>       is better
>>>>>>      >> than its own and accede to
>>>>>>      >> such a change. Accepting the patently justified fact that an
>>>>>>      >> international infrastructure should be
>>>>>>      >> governed internationally, on the other hand, is much easier .
>>>>>>      >>
>>>>>>      >
>>>>>>      > I would not dismiss this so quickly.  I take a substantial
>>>>>>       fraction of
>>>>>>      > the opposition to US residual control (for that is all we are
>>>>>>       talking
>>>>>>      > about) to be tied to the US's status as defacto hegemon.
>>>>>>       Moving ICANN
>>>>>>      > to another state with a strong human rights record would
>>>>>>       answer that
>>>>>>      > part of the critique.
>>>>>>      >
>>>>>>      > In my view, a bespoke international structure is actually much
>>>>>>       harder
>>>>>>      > -- it would need to be invented almost from scratch.  And it
>>>>>>       is bound
>>>>>>      > to be flawed; national rules are the result of at least
>>>>>>       decades if not
>>>>>>      > more of trial and error.
>>>>>>      >
>>>>>>      >> parminder
>>>>>>      >>
>>>>>>      >> On Tuesday 09 June 2015 07:31 PM, Michael Froomkin - U.Miami
>>>>>>       School
>>>>>>      >> of Law wrote:
>>>>>>      >>       I don't know what it means to say that ICANN should be
>>>>>>       subject
>>>>>>      >> to "international
>>>>>>      >>       jurisdiction and law".  For the relevant issues, that
>>>>>>       sounds
>>>>>>      >> like a pretty empty set.
>>>>>>      >>
>>>>>>      >>       As regards most of the sort of things one might expect
>>>>>>       to worry
>>>>>>      >> about - e.g. fidelity to
>>>>>>      >>       articles of incorporation - international law is
>>>>>>       basically
>>>>>>      >> silent.  And there is no
>>>>>>      >>       relevant jurisdiction either.  So I remain stuck in the
>>>>>>      >> position that there must be a
>>>>>>      >>       state anchor whose courts are given the job.  It does
>>>>>>       not of
>>>>>>      >> course need to be the US,
>>>>>>      >>       although I would note that the US courts are by
>>>>>>       international
>>>>>>      >> standards not shy and
>>>>>>      >>       actually fairly good at this sort of thing.
>>>>>>      >>
>>>>>>      >>       I do think, however, that it should NOT be Switzerland,
>>>>>>       as its
>>>>>>      >> courts are historically
>>>>>>      >>       over-deferential to international bodies - perhaps as
>>>>>>       part of
>>>>>>      >> state policy to be an
>>>>>>      >>       attractive location for those high-spending
>>>>>>       international
>>>>>>      >> meetings.
>>>>>>      >>
>>>>>>      >>       I'd be real happy with Canada, though.
>>>>>>      >>
>>>>>>      >>       On Tue, 9 Jun 2015, parminder wrote:
>>>>>>      >>
>>>>>>      >>
>>>>>>      >>
>>>>>>      >>             On Tuesday 09 June 2015 06:26 PM, Michael
>>>>>>       Froomkin -
>>>>>>      >> U.Miami School of Law
>>>>>>      >>             wrote:
>>>>>>      >>
>>>>>>      >>                   I think that bodies which do not need to
>>>>>>       fear
>>>>>>      >> supervision by
>>>>>>      >>             legitimate courts end up
>>>>>>      >>                   like FIFA. FIFA had a legal status in
>>>>>>       Switzerland
>>>>>>      >> that basically
>>>>>>      >>             insulated it the way
>>>>>>      >>                   that the Brazilian document seems to
>>>>>>       suggest would
>>>>>>      >> be what they want
>>>>>>      >>             for ICANN.  (It's
>>>>>>      >>                   also the legal status ICANN has at times
>>>>>>       suggested
>>>>>>      >> it would like.)
>>>>>>      >>
>>>>>>      >>                   The lesson of history seems unusually clear
>>>>>>       here.
>>>>>>      >>
>>>>>>      >>
>>>>>>      >>             Agree that ICANN cannot be left jurisdictionally
>>>>>>      >> un-supervised - that may be
>>>>>>      >>             even more dangerous
>>>>>>      >>             than the present situation. However, the right
>>>>>>      >> supervision or oversight is
>>>>>>      >>             of international
>>>>>>      >>             jurisdiction and law, not that of the US . This
>>>>>>       is what
>>>>>>      >> Brazil has to make
>>>>>>      >>             upfront as the
>>>>>>      >>             implication of what it is really seeking, and its
>>>>>>       shyness
>>>>>>      >> and reticence to
>>>>>>      >>             say so is what I noted as
>>>>>>      >>             surprising in an earlier email in this thread.
>>>>>>       Not
>>>>>>      >> putting out clearly what
>>>>>>      >>             exactly it wants would
>>>>>>      >>             lead to misconceptions about its position, which
>>>>>>       IMHO can
>>>>>>      >> be seen from how
>>>>>>      >>             Michael reads it.  I am
>>>>>>      >>             sure this is not how Brazil meant it - to free
>>>>>>       ICANN from
>>>>>>      >> all kinds of
>>>>>>      >>             jurisdictional oversight
>>>>>>      >>             whatsoever - but then Brazil needs to say clearly
>>>>>>       what is
>>>>>>      >> it that it wants,
>>>>>>      >>             and how can it can
>>>>>>      >>             obtained. Brazil, please come out of your
>>>>>>       NetMundial
>>>>>>      >> hangover and take
>>>>>>      >>             political responsibility for
>>>>>>      >>             what you say and seek!
>>>>>>      >>
>>>>>>      >>             parminder
>>>>>>      >>
>>>>>>      >>
>>>>>>      >>
>>>>>>      >>                   On Tue, 9 Jun 2015, Mawaki Chango wrote:
>>>>>>      >>
>>>>>>      >>
>>>>>>      >>                         It's good to see a law scholar
>>>>>>       involved in
>>>>>>      >> this discussion. I'll
>>>>>>      >>             leave it to
>>>>>>      >>                         the Brazilian party to
>>>>>>      >>                         ultimate tell whether your reading is
>>>>>>       correct
>>>>>>      >> or not. In the
>>>>>>      >>             meantime I'd
>>>>>>      >>                         volunteer the following
>>>>>>      >>                         comments.
>>>>>>      >>
>>>>>>      >>                         On Jun 8, 2015 10:46 PM, "Michael
>>>>>>       Froomkin -
>>>>>>      >> U.Miami School of
>>>>>>      >>             Law"
>>>>>>      >>                         <froomkin at law.miami.edu> wrote:
>>>>>>      >>                        >
>>>>>>      >>                        > Perhaps I'm misreading something,
>>>>>>       but I
>>>>>>      >> read this document to
>>>>>>      >>             make the
>>>>>>      >>                         following assertions:
>>>>>>      >>                        >
>>>>>>      >>                        > 1. All restrictions on ICANN's
>>>>>>       location
>>>>>>      >> must be removed.
>>>>>>      >>                        >
>>>>>>      >>
>>>>>>      >>                         And the question reopened for
>>>>>>       deliberation by
>>>>>>      >> all stakeholders,
>>>>>>      >>             including
>>>>>>      >>                         governments among others.
>>>>>>      >>                         Only the outcome of such deliberation
>>>>>>       will be
>>>>>>      >> fully legitimate
>>>>>>      >>             within the
>>>>>>      >>                         framework of the post-2015
>>>>>>      >>                         ICANN.
>>>>>>      >>
>>>>>>      >>                        > 2. ICANN does not have to leave the
>>>>>>       US but
>>>>>>      >> must be located in
>>>>>>      >>             a place
>>>>>>      >>                         where the governing law has
>>>>>>      >>                         certain characteristics, including
>>>>>>       not having
>>>>>>      >> the possibiliity
>>>>>>      >>             that courts
>>>>>>      >>                         overrule ICANN (or at
>>>>>>      >>                         least the IRP).
>>>>>>      >>                        >
>>>>>>      >>                        > (And, as it happens, the US is not
>>>>>>       such a
>>>>>>      >> place....)
>>>>>>      >>                        >
>>>>>>      >>
>>>>>>      >>                         Not only avoiding courts overruling
>>>>>>       relevant
>>>>>>      >> outcomes of the
>>>>>>      >>             Internet global
>>>>>>      >>                         community processes,
>>>>>>      >>                         but also examining and resolving the
>>>>>>       possible
>>>>>>      >>             interferences/conflicts that
>>>>>>      >>                         might arise for
>>>>>>      >>                         government representatives being
>>>>>>       subject to a
>>>>>>      >> foreign country
>>>>>>      >>             law simply in
>>>>>>      >>                         the process of attending
>>>>>>      >>                         to their regular duties (if they were
>>>>>>       to be
>>>>>>      >> fully engaged with
>>>>>>      >>             ICANN).
>>>>>>      >>
>>>>>>      >>                         Quote:
>>>>>>      >>
>>>>>>      >>
>>>>>>      >> "From the Brazilian perspective the existing structure
>>>>>>       clearly imposes limits to the participation
>>>>>>      >>
>>>>>>      >>
>>>>>>      >>      ???of governmental representatives, as it is unlikely
>>>>>>       that a representative of a foreign government
>>>>>>      >>              w
>>>>>>      >>                   i
>>>>>>      >> ll be authorized (by its own government) to formally accept a
>>>>>>       position in a body pertaining to a U.
>>>>>>      >>
>>>>>>      >>
>>>>>>      >>
>>>>>>      >>                         S. corporation."
>>>>>>      >>
>>>>>>      >>                         This may be what you're getting at
>>>>>>       with your
>>>>>>      >> point 3 below, but
>>>>>>      >>             I'm not sure
>>>>>>      >>                         whether the problem is
>>>>>>      >>                         only the fact that governments have
>>>>>>       to deal
>>>>>>      >> with a corporate
>>>>>>      >>             form/law or
>>>>>>      >>                         whether it is altogether
>>>>>>      >>                         the fact that it is a single country
>>>>>>       law
>>>>>>      >> without any form of
>>>>>>      >>             deliberate
>>>>>>      >>                         endorsement by the other
>>>>>>      >>                         governments (who also have law making
>>>>>>       power
>>>>>>      >> in their respective
>>>>>>      >>             country just
>>>>>>      >>                         as the US government).
>>>>>>      >>
>>>>>>      >>                         Assuming your reading is correct, and
>>>>>>       if
>>>>>>      >> necessary complemented
>>>>>>      >>             by my
>>>>>>      >>                         remarks above, I'd be
>>>>>>      >>                         interested in hearing from you about
>>>>>>       any
>>>>>>      >> issues you may see with
>>>>>>      >>             the BR gov
>>>>>>      >>                         comments.
>>>>>>      >>                         Thanks,
>>>>>>      >>
>>>>>>      >>                         Mawaki
>>>>>>      >>
>>>>>>      >>                        >
>>>>>>      >>                        > 3. ICANN doesn't have to change its
>>>>>>       form,
>>>>>>      >> but it needs a form
>>>>>>      >>             where
>>>>>>      >>                         governments are comfortable.
>>>>>>      >>                        >
>>>>>>      >>                        > (And, as it happens, the corporate
>>>>>>       form is
>>>>>>      >> not such a
>>>>>>      >>             form....)
>>>>>>      >>                        >
>>>>>>      >>                        >
>>>>>>      >>                        > What am I missing?
>>>>>>      >>                        >
>>>>>>      >>                        >
>>>>>>      >>                        >
>>>>>>      >>                        > On Sat, 6 Jun 2015, Carlos A.
>>>>>>       Afonso wrote:
>>>>>>      >>                        >
>>>>>>      >>                        >> For the ones who are following the
>>>>>>       IANA
>>>>>>      >> transition process:
>>>>>>      >>             attached
>>>>>>      >>                        >> please find the comments posted by
>>>>>>       the
>>>>>>      >> government of Brazil
>>>>>>      >>             on June 03,
>>>>>>      >>                        >> 2015, in response to the call for
>>>>>>       public
>>>>>>      >> comments on the
>>>>>>      >>                        >> CCWG-Accountability Initial Draft
>>>>>>       Proposal.
>>>>>>      >>                        >>
>>>>>>      >>                        >> I generally agree with the
>>>>>>       comments.
>>>>>>      >>                        >>
>>>>>>      >>                        >> fraternal regards
>>>>>>      >>                        >>
>>>>>>      >>                        >> --c.a.
>>>>>>      >>                        >>
>>>>>>      >>                        >
>>>>>>      >>                        > --
>>>>>>      >>                        > A. Michael Froomkin, http://law.tm
>>>>>>      >>                        > Laurie Silvers & Mitchell
>>>>>>       Rubenstein
>>>>>>      >> Distinguished Professor
>>>>>>      >>             of Law
>>>>>>      >>                        > Editor, Jotwell: The Journal of
>>>>>>       Things We
>>>>>>      >> Like (Lots),
>>>>>>      >>             jotwell.com
>>>>>>      >>                        > Program Chair, We Robot 2016 | +1
>>>>>>       (305)
>>>>>>      >> 284-4285 |
>>>>>>      >>             froomkin at law.tm
>>>>>>      >>                        > U. Miami School of Law, P.O. Box
>>>>>>       248087,
>>>>>>      >> Coral Gables, FL
>>>>>>      >>             33124 USA
>>>>>>      >>                        >                         -->It's
>>>>>>       warm here.<--
>>>>>>      >>                        >
>>>>>>      >> ____________________________________________________________
>>>>>>      >>                        >
>>>>>>      >>                        > You received this message as a
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>>>>>>      >>
>>>>>>      >>
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>>>>>>      >>
>>>>>>      >>                        >
>>>>>>      >> ____________________________________________________________
>>>>>>      >>                        > You received this message as a
>>>>>>       subscriber
>>>>>>      >> on the list:
>>>>>>      >>                        >      governance at lists.igcaucus.org
>>>>>>      >>                        > To be removed from the list, visit:
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>>>>>>       http://www.igcaucus.org/unsubscribing
>>>>>>      >>                        >
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>>>>>>      >> functions, see:
>>>>>>      >>                        >
>>>>>>       http://lists.igcaucus.org/info/governance
>>>>>>      >>                        > To edit your profile and to find
>>>>>>       the IGC's
>>>>>>      >> charter, see:
>>>>>>      >>                        >      http://www.igcaucus.org/
>>>>>>      >>                        >
>>>>>>      >>                        > Translate this email:
>>>>>>      >> http://translate.google.com/translate_t
>>>>>>      >>                        >
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>>>>>>      >>
>>>>>>      >>
>>>>>>        ____________________________________________________________
>>>>>>      >>             You received this message as a subscriber on the
>>>>>>       list:
>>>>>>      >>                  governance at lists.igcaucus.org
>>>>>>      >>             To be removed from the list, visit:
>>>>>>      >>                  http://www.igcaucus.org/unsubscribing
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>>>>>>      >>             For all other list information and functions,
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>>>>>>      >>             Translate this email:
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>>>>>>      >>
>>>>>>        ____________________________________________________________
>>>>>>      >>             You received this message as a subscriber on the
>>>>>>       list:
>>>>>>      >>                  governance at lists.igcaucus.org
>>>>>>      >>             To be removed from the list, visit:
>>>>>>      >>                  http://www.igcaucus.org/unsubscribing
>>>>>>      >>
>>>>>>      >>             For all other list information and functions,
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>>>>>>      >>                  http://lists.igcaucus.org/info/governance
>>>>>>      >>             To edit your profile and to find the IGC's
>>>>>>       charter, see:
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>>>>>>      >> http://translate.google.com/translate_t
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>>>>>>      >>
>>>>>>      >>
>>>>>>      >> ____________________________________________________________
>>>>>>      >> You received this message as a subscriber on the list:
>>>>>>      >>      governance at lists.igcaucus.org
>>>>>>      >> To be removed from the list, visit:
>>>>>>      >>      http://www.igcaucus.org/unsubscribing
>>>>>>      >>
>>>>>>      >> For all other list information and functions, see:
>>>>>>      >>      http://lists.igcaucus.org/info/governance
>>>>>>      >> To edit your profile and to find the IGC's charter, see:
>>>>>>      >>      http://www.igcaucus.org/
>>>>>>      >>
>>>>>>      >> Translate this email: http://translate.google.com/translate_t
>>>>>>      >>
>>>>>>      >>
>>>>>>      >>
>>>>>>      >>
>>>>>>      >
>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>>       ____________________________________________________________
>>>>>>       You received this message as a subscriber on the list:
>>>>>>            governance at lists.igcaucus.org
>>>>>>       To be removed from the list, visit:
>>>>>>            http://www.igcaucus.org/unsubscribing
>>>>>>
>>>>>>       For all other list information and functions, see:
>>>>>>            http://lists.igcaucus.org/info/governance
>>>>>>       To edit your profile and to find the IGC's charter, see:
>>>>>>            http://www.igcaucus.org/
>>>>>>
>>>>>>       Translate this email: http://translate.google.com/translate_t
>>>>>>
>>>>>>
>>>>>>
>>>>>
>>>>> --
>>>>> A. Michael Froomkin, http://law.tm
>>>>> Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
>>>>> Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
>>>>> Program Chair, We Robot 2016 | +1 (305) 284-4285 |  froomkin at law.tm
>>>>> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
>>>>>                         -->It's warm here.<--
>>>>>
>>>>> ____________________________________________________________
>>>>>
>>>>> You received this message as a subscriber on the list:
>>>>>
>>>>>      governance at lists.igcaucus.org
>>>>>
>>>>> To be removed from the list, visit:
>>>>>
>>>>>      http://www.igcaucus.org/unsubscribing
>>>>>
>>>>>
>>>>>
>>>>> For all other list information and functions, see:
>>>>>
>>>>>      http://lists.igcaucus.org/info/governance
>>>>>
>>>>> To edit your profile and to find the IGC's charter, see:
>>>>>
>>>>>      http://www.igcaucus.org/
>>>>>
>>>>>
>>>>>
>>>>> Translate this email: http://translate.google.com/translate_t
>>>>>
>>>>>
>>>>> ____________________________________________________________
>>>>> You received this message as a subscriber on the list:
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>>>>> Translate this email: http://translate.google.com/translate_t
>>>>>
>>>>
>>>>
>>>> ____________________________________________________________
>>>> You received this message as a subscriber on the list:
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>>>>
>>>> For all other list information and functions, see:
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>>>> To edit