[governance] IANA transition - BR Gov comments on the CCWG-Accountability Draft Proposal
Seth Johnson
seth.p.johnson at gmail.com
Thu Jun 11 10:34:10 EDT 2015
I see from that last paper that it's a "public-private partnership?"
Uh-oh. :-) And a weird one. I'll try to think about what it does in
light of recourse to rights.
On Thu, Jun 11, 2015 at 10:16 AM, Michael Froomkin - U.Miami School of
Law <froomkin at law.miami.edu> wrote:
>
> 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.<--
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