[governance] FW: [Internet Policy] ICANN's US jurisdiction

Michael Gurstein gurstein at gmail.com
Sun Nov 20 21:45:34 EST 2016

I would be interested if various of the folks on this elist with whom I/we
have jousted on these issues might be interested in commenting.




From: Michael Gurstein [mailto:gurstein at gmail.com] 
Sent: November 20, 2016 10:46 AM
To: internetpolicy at elists.isoc.org
Subject: RE: [Internet Policy] ICANN's US jurisdiction


I think the larger question is how much (and what specifically) in our
expectations and assumptions concerning Internet Governance (and so much
else) have been based on presumed continuity and (benign?) rationality of
the US as the "necessary power".  With a Trump Presidency these assumptions
must be rethought and the frameworks and implicit expectations must be


I'm wondering what this group for example would recognize how our framework
of understanding and agreement or disagreement on the issue of the
significance or not of "US jurisdiction" has changed in the last 10 days.




From: InternetPolicy [mailto:and internetpolicy-bounces at elists.isoc.org
<mailto:internetpolicy-bounces at elists.isoc.org> ] On Behalf Of parminder
Sent: November 20, 2016 9:18 AM
To: internetpolicy at elists.isoc.org
Subject: Re: [Internet Policy] ICANN's US jurisdiction



The US Federal Communications Commission ( FCC)  clearly has authority over
Internet names and numbers although it has currently chosen to forbear
application of this authority (which by definition is a reversible
decision). This fact of forbearance was recently stated by FCC chair. To
quote him, while referring to ICANN's remit on Internet names and number, he

""In fact, the Commission forebore [sic] from Section 251(e)-the provision
that gives the Commission authority over telephone numbers. IP addressing-in
contrast to telephone numbers-is already governed by IANA...."

I am sure, the legally inclined here would know that an authority can only
do forbearance with regard to an authority that it actually has, but chooses
not to apply -- a decision that can be reversed at any time. Much like FCC
reversed its earlier decision to treat the Internet as title 1 service to
treating it as title 2. Very similarly, without any new legislative
requirement, FCC (the new Trump's FCC?) can decide to vacate its forbearance
regarding Internet names and numbers and begin extending its authority over

I have already quoted FCC chair to use the term 'forbearance' with regard to
authority over names and numbers. 

Now let me quote the web site of Electronic Frontier Foundation - normally
legally very sound people, about what 'forbearance' as a legal concept

"Forbearance is how we help ensure the FCC does what is necessary - and no
more. It isn't an iron-clad limit; the FCC must choose to do it, and it can
change course if need be." (emphasis added)

I think the above makes amply clear that FCC can, as and when it wishes,
exercise regulatory authority over ICANN/ IANA... 



On Sunday 20 November 2016 09:59 PM, parminder wrote:



On Thursday 10 November 2016 09:29 AM, Michael Froomkin - U.Miami School of
Law wrote:

I do not think that there is any obvious way for the US to assert regulatory
power over IANA at present.  No agency has the authority, so legislation
would be needed.

All US regulatory agencies that have regulatory competence in any given area
- health, communication, trade, civil rights, whatever -- have remit over
IANA to the extend that its policies and operation affect these areas. This
is so for every country at all time. This is just as such regulatory
agencies - directly or through courts -  have competence for ensuring
compliance from a country's banking/ finance system so that their regulatory
powers can be enforced as per their mandate. I do not know its exact
statute, but I am sure that FDA, for instance, pressing a regulatory case
about drugs etc would be able to get US's banks etc to act in a manner that
is required for FDA to meet and enforce its mandate. 

Are you really saying that Office for Foreign Assets Control does not have
regulatory / executive power over IANA? I understand that recently ISOC
could not provide some Iranians its fellowship because of OFAC related
issues. I really do not know how ICANN extends such fellowships to citizens
of countries under OFAC control list, much less allows ICANN/ IANA to
transact business with these countries and/ or their citizens. I did ask
recently on this list if ICANN has an OFAC licence in this regard but did
not get any response Anyone willing to let us know?

  To the extent that the effects would be extraterritorial, the courts now
require very clear authority from Congress, and this doesn't currently exist
and is not often given. 

Are you saying that for a US court to give a ruling having extra territorial
bearing, they need to be authorised by congress? This is not at all my
understanding (for US, or for any other country court). For instance, in the
.africa case, this particular point has never been presented by anyone, and
court has take cognizance of the case of which almost the entire effect will
be outside the US. Even in the .ir case, this position was taken by no one.
I really do not understand your point here. 

To the extent that taking 'ownership' of IANA or anything else is involved,
the US would have to pay compensation under the Takings Clause of the Fifth
Amendment - which requires payment of full market value of the asset taken. 

It seems to me (please correct me if I am wrong) that you are taking IANA or
domains names directory to be asset or property. Am I wrong? But wasnt the
precisely opposite case argued during the transition process  by the US gov-
and almost everyone supporting the transition - that this is not property,
and therefore to divest it does not need legislative approval. How can we
reverse the argument now? 

And it would cause far more diplomatic pain than the US is likely to think
it is worth. 

Well, this is an old and unsustainable justification. I, and other citizens
of the non US world, are not ready to leave the oversight of this important
global system to one country with the simple fancy protection that US would
not do certain things because of 'diplomatic pain'. While never sustainable,
it is so much less so with the incoming US administration being clear that
they have a mind fully their own (which I from far suppose no one really
really understands well yet) and certainly they are leaning towards US
unilateralism, and are not great votaries of US's moral authority being used
for global purposes and so on (said with all due respect for US's electoral
choice, pl do not misunderstand me). 

So I really think this is not a great worry.  IANA transition is a done

On the other hand, ICANN situs in the US has some legal consequences, e.g.
US antitrust principles might apply.

Might apply? Is there any doubt in this? I think it is good to base the
discussion on facts, and not far-fetched hopes or whatever. Of course all
public laws of US apply on ICANN, there isnt any 'might' about it, any more
than there is any doubt about application of al public laws of India on my
NGO. Further, I often hear about US anti trust laws applying -- is there any
special constitutional status of anti trust laws of the US over and above
other kinds of public laws, whether in the area of security, health, civil
rights enforcement, and so on... Obviously, not just anti trust laws, but
each and every public law of US, of every sector, applies to ICANN. Which
precisely is the statement of the problem.

But I would argue almost all of those consequences are 1) unlikely 

This is said without reason or justification - why is it unlikely? 

and 2) if the unlikely happens it would be because of actions whose redress
was, on balance, good for the community.

I think this may be more for non US citizens to weigh on and 'decide'. US
citizens are in any case under a social contract to accept US law as being
in their larger interest or the public interest. We others have no such
relationship with US law, and are not a part in making it. In the recent US
elections, I was given no chance to give my opinion on electing either US
legislature or its chief executive. I have no reason to trust that these
will work with my best interest in mind -- especially so when the other
party be an US interest. One just keep hoping that democracy still means
something to people here. 


Note for example that, to date, the US courts have rejected antitrust claims
against ICANN, although that was when its connection to the government was
not severed and hence it benefited from the association. 

On Thu, 10 Nov 2016, parminder wrote: 

Hi All 

First of all, I am sure folks here know well that there are two quite
different issues here -- transition of ownership of 
IANA is very different from the jurisdiction issue (although the two
together, for me, constitute the oversight problem, a 
matter of contention since the WSIS days). I say this because the civil
society letter I posted had noting to do with IANA 
transition and only discussed the jurisdiction issue, but the subsequent
discussions seem to entirely be about IANA 

On the jurisdiction issue: 

There is no difference between Obama administration's view point and that
what is expected from Trump's (or what could 
have been Hillary's). All of them are clear that ICANN should stay in US

On IANA transition: 

I do not agree that Trump cannot do anything (though he may or may not do
it). There is a lot of executive, regulatory and 
legislative competence in the US state to take IANA back. For instance, like
FCC recently revised the assertion of its 
jurisdiction over Internet as a public utility (in its net neutrality
order), it could as well vacate its  - recently 
expressed --  forbearance on the naming and addressing system of the
Internet (it already regulated the telephones naming 
and addressing system) and begin 'interfering' with IANA, if not take it

As said, there are many other possibilities, and of course a new legislation
can practically do anything. And now we have 
Trump! Sorry, I do not normally comment on other country's democratic
choices, but unfortunately, even though I was not 
given the right to vote here, US presidency strongly affects my and other
non USian's rights, much more so in this area of 
Internet governance that I work in. I dont want it, but it does. 

But if a lot of non USians still want to keep staying in this non democratic
global order, I just find it very 
unfortunate. My pet theory of course is -- this is a trans national elite
that finds its interests best protected in this 
across-the-borders alliance, which provides "political safety" from their
domestic non-elites (sorry, but that very 
attitude backfired in the US to give the US its Trump!). The non US part of
this trans national elite has accepted the US 
as its political capital, however grudgingly (in swallowing their ethnic,
national, racial etc pride), in preference to 
being subject to their own domestic politics, because the former protects
their political economy interests and the latter 
can threaten them. 

A time for rethink guys if there ever was one! 


On Thursday 10 November 2016 04:31 AM, vinton cerf wrote: 
      it would be difficult for the president to intervene in a transition
that is already completed.  


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