[discuss] Who-and-where vs. what

[Barry Shein]

One concern I hear regarding ICANN's California/US status is the
unspecified anxiety that there exists a /fait accompli/ within
US/California (US/CA) law which could produce a disasterous result.

For example the concern over this forfeiture of the .IR ccTLD.

Let's assume for a moment -- should a court successfully order ICANN
to "hand over" .IR operations to a plaintiff in satisfaction of a
judgement -- that it would be a disaster. If not directly a disaster
then as a precedent, other similar lawsuits flood the courts. I'm not
sure that's a valid concern but I think it's an apt example of
something expressed in this context.

And we the (I*) people decide that was the result of ICANN's
jurisdictional status in US/CA. Had other suggestions been heeded to
move their jurisdiction then, the reasoning would follow, this would
not have happened. No interested court would have had jurisdiction
(&c) to impose such a judgement.

>From that standpoint one would need to categorize the sorts of /fait
accompli/ one is concerned about. And what similar exposures exist in
a proposed, new, jurisdiction.

Similar examples could be generated in the areas of surveillance,
state prohibitions (e.g., forbidding a ccTLD to an "enemy" of the
jurisdiction even though a normal PDP recommended it), etc.

I think that's the framework needed to discuss this aspect of the
problem rather than leaving it all as a vague, unspecified anxiety.

In particular how any proposed jursidiction is superior in this
regard.

-- 
        -Barry Shein

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