[governance] IANA transition - BR Gov comments on the CCWG-Accountability Draft Proposal
Dr Yassin Mshana
ymshana2003 at gmail.com
Thu Jun 11 11:17:44 EDT 2015
Very true Seth...
On 11 Jun 2015 17:11, "Seth Johnson" <seth.p.johnson at gmail.com> wrote:
> My issue is that I don't think people really know what they're doing.
> I tend to be inclined to get something international in place, except
> I just don't see any discussion that really gets what the implications
> are. The techies all think it's just a matter of keeping the
> contracts as much the same as possible, and they don't get that the
> context changes everything. And the civil society folks have a
> different kind of short-sightedness (I think the JNC folks are trying
> to push to more substantive discussion, but they miss some basics in
> their eagerness to establish a shortsighted view of legitimacy. And
> the other camp, which tends to talk MS-ism and resist governmental
> encroachment per se, also doesn't see that they're not living in
> reality).
>
>
>
> On Thu, Jun 11, 2015 at 10:48 AM, Seth Johnson <seth.p.johnson at gmail.com>
> wrote:
> > Without getting very deep into it yet, I think you emphasize the
> > question of control, whereas I would talk about recourse, in a more
> > "transferable" way. What we don't want to do is put things into an
> > international arena where we (all) the people(s) have much less
> > recourse. Talking about degrees of positive control by the US per se
> > and whether that matters doesn't seem like a way to really sort the
> > questions out. It's more a problem of people eager to "go there"
> > understanding that what's wrong there isn't actually about the US,
> > even though it is in fact the case that the US is really leading the
> > charge in exploiting what's wrong there to the expense of all the
> > people(s).
> >
> >
> >
> > On Thu, Jun 11, 2015 at 10:34 AM, Seth Johnson <seth.p.johnson at gmail.com>
> wrote:
> >> 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.<--
> >>>>>>>>>> >> >
> >>>>>>>>>> >>
> ____________________________________________________________
> >>>>>>>>>> >> >
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> ____________________________________________________________
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> >>>>>>>>>
> >>>>>>>>> --
> >>>>>>>>> A. Michael Froomkin, http://law.tm
> >>>>>>>>> Laurie Silvers & Mitchell Rubenstein Distinguished Professor of
> Law
> >>>>>>>>> Editor, Jotwell: The Journal of Things We Like (Lots),
> jotwell.com
> >>>>>>>>> Program Chair, We Robot 2016 | +1 (305) 284-4285 |
> froomkin at law.tm
> >>>>>>>>> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124
> USA
> >>>>>>>>> -->It's warm here.<--
> >>>>>>>>>
> >>>>>>>>> ____________________________________________________________
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> >>>>> A. Michael Froomkin, http://law.tm
> >>>>> Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
> >>>>> Editor, Jotwell: The Journal of Things We Like (Lots), jotwell.com
> >>>>> Program Chair, We Robot 2016 | +1 (305) 284-4285 | froomkin at law.tm
> >>>>> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> >>>>> -->It's warm here.<--
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> >>> 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
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