[governance] IANA transition - BR Gov comments on the CCWG-Accountability Draft Proposal
Michael Froomkin - U.Miami School of Law
froomkin at law.miami.edu
Wed Jun 10 15:38:48 EDT 2015
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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> ____________________________________________________________
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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.<--
> >
> > ____________________________________________________________
> >
> > 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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> >
> >
> >
> > 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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> > To be removed from the list, visit:
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> >
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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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> To be removed from the list, visit:
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>
> For all other list information and functions, see:
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> 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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____________________________________________________________
You received this message as a subscriber on the list:
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http://www.igcaucus.org/unsubscribing
For all other list information and functions, see:
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