[governance] IANA transition - BR Gov comments on the CCWG-Accountability Draft Proposal
Michael Froomkin - U.Miami School of Law
froomkin at law.miami.edu
Thu Jun 11 10:16:58 EDT 2015
I am afraid that the door for any recourse via NITA is basically shut at
present. I have three relevant articles that trace the developments.
Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the
Constitution, 50 DUKE L.J. 17 (2000),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=252523
Form and Substance in Cyberspace, 6 J. SMALL & EMERGING BUS. L. 93 (2002),
http://www.law.miami.edu/%7Efroomkin/articles/formandsubstance.pdf
Almost Free: An Analysis of ICANN’s ‘Affirmation of Commitments’, 9 J.
Telecom. & High Tech. Law 187 (2011), http://ssrn.com/abstract=1744086
If you are in a rush, just read the last one.
On Wed, 10 Jun 2015, Seth Johnson wrote:
> 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
>>>>>>> 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:
>>>>>>> >> 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:
>>>>>>> >> 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:
>>>>>> 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
>>
>>
>
--
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.<--
-------------- next part --------------
____________________________________________________________
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
More information about the Governance
mailing list