[discuss] discuss Digest, Vol 4, Issue 145

Niels ten Oever lists at digitaldissidents.org
Thu Mar 20 11:45:17 UTC 2014

Dear Avri and others,

What concrete proposals for alternatives are there? What I could find
was that Paul Twomey, ICANN's President & CEO between 2003 and 2009,
commissioned a legal opinion [1] as to what status ICANN should try to
achieve as a private international entity in its host country. The
opinion examined a number of options including arrangements for a
private entity in Switzerland, the US, France, Netherlands and the UK
among others.  In particular, it examined the possibility of obtaining
immunities and privileges as a private entity rather than a subject of
public international law. The report’s preliminary conclusion was that
there were a number of advantages to the Swiss model. The agreement
between Switzerland and the International Olympic Committee was also of
particular interest.

But then it would be the question whether ICANN would be changing legal
status from a private sector entity to legal personality under public
international law. This would entail significant changes in terms of
immunities and privileges. Similarly, assuming that ICANN would remain a
private entity, the decision to be based in a particular country would
be based on factors such as a strong rule of law tradition (including
reliability and independence of the court system); strong antitrust
legislation; flexible employment laws etc.  Moreover, any move to
another jurisdiction would raise a host of issues regarding the validity
and execution of current contractual obligations. For this reason, a
2009 draft Implementation Plan for Improving Institutional Confidence
recommended that ICANN should retain its headquarters in the US to
ensure certainty about ICANN's registry, registrar and IANA contracts.
At the same time, the draft report recommended to retain a presence in
countries with strong antitrust and competition law.

Would be very interested in further reading on research into (legal)
models and possible countries. We should perhaps also keep in mind that
Switzerland is not as eager to attract new international organizations
as it once was.



[1] http://archive.icann.org/en/psc/corell-24aug06.html


Niels ten Oever
Acting Head of Digital

Article 19

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On 03/20/2014 11:35 AM, Francis Augusto Medeiros wrote:
> On 16/03/2014, at 22:32, Avri Doria <avri at ACM.ORG <mailto:avri at ACM.ORG>> wrote:
>>> The question has already been asked and I’ll ask again.  What is the
>>> specific problem about being subject to US law?  As a general matter,
>>> rule of law is usually considered one of the U.S.’s very strongest
>>> qualities.
>> This has been answered many times by many people, but I will answer yet again. 
>>  US law on occasion restricts who a company does business with. Losing NTIA 
>> oversight does not change that.  IANA should not be subject to such vagaries 
>> of national law.
>> Beyond that, US law allows infractions of rights against the privacy etc of 
>> data and pervasive monitoring that may not be appropriate for the future of 
>> IANA and which are not consistent with other rule of law jurisdictions.
>> avri
> Dear Avri and everyone,
> I agree with you, Avri. But I believe there's even more at stake, and I think it 
> should be carefully studied:
> In the days pre-gTLD expansion, ICANN was shielded from prosecution concerning 
> domain name conflicts/issues. The place of enforcement of court decisions was 
> always on the domicile of the registrars and later, unfortunately, on 
> registries. This, as many have demonstrated (Komaitis work showcases a lot of 
> examples on this), has submitted most gTLD's to US law compliance.
> With the expansion of gTLDs, as the TLD itself now has "content" (therefore we 
> have/had lots of IPR dicussions about, as well as of public policy, etc), the 
> place of enforcement of court decisions may end up being ICANN (or whoever has 
> the technical authority to implement a change in the root obeying court orders).
> When ICM (.web) sued ICANN last year, it showed that this "authority" - the 
> proposed DNSA or ICANN - will be increasingly subject to litigation and/or 
> enforcement concerning changes to the root determined by US courts. ICANN's 
> willingness to comply to non-US court-orders might be superseded by a decision 
> issued by an US court.
> Of course, moving the administration of the IANA functions to another country 
> will not necessarily fix the problem, as the new organization will have to 
> comply to (better or worse) local laws.
> While the idea of not having governments involved in the administration of IANA 
> functions is essencial, there is still a need for a legal framework for gTLDs to 
> prevent conflict of laws and to attend to global interests.
> Sorry for may late .2.
> Best,
> Francis
> (my opinions do not necessarily reflect those of my organization)
> __
> Francis Augusto Medeiros
> www.francisaugusto.com <http://www.francisaugusto.com>
> Norwegian Research Center for Computers and Law
> Oslo, Norway
> <http://www.linkedin.com/in/francismedeiros><http://twitter.com/francisaugusto><http://myskype.info/francisaugusto>
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