The jurisdictional issue is fascinating, but it's also worth asking why RIPE had to be ordered to work with ISC and the multinational law enforcement effort aimed at shutting this down.
Bret
I was reading up on the effect of international law and European law, I
came across this:
“In the famous Costa-Enel case (6/64) the Court of Justice of the European Community has ruled that European law is an integral part of the national legal system of the EC member countries and takes precedence over national law. Therefore one cannot fully ascertain the applicable law without researching the relevant European law”. See: http://www.llrx.com/features/dutch2.htm
*European Ministerial Declaration on the Management of the Internet Protocol Address Resources in the Public Interest*
Firstly, Declaration of the Committee of Ministers on the management of the Internet protocol address resources in the public interest (Adopted by the Committee of Ministers on 29 September 2010 at the 1094th meeting of the Ministers' Deputies) is available via https://wcd.coe.int/ViewDoc.jsp?id=1678299&Site=CM&BackColorInternet=C3C3C3&...
I would invite you to pay particular attention to para 11 of the Ministerial Text where the Committee of Ministers, therefore, declares the following:-
*- Internet protocol address resources should be regarded as shared** public resources and allocated and managed in the public interest by the entities entrusted with these tasks, taking into account the present and future needs of Internet users;
- timely and effective deployment of IPv6 in the public sector should be ensured and swift preparations for migration to and deployment of IPv6 in the private sector should be encouraged and promoted;
- as appropriate, identification features incorporated into Internet protocol addresses that are assigned to Internet users or devices connected to the Internet should be regarded and treated as personal data.***
M. Mueller, M. V. Eeten and B Kuerbis in their blog post that was posted in the original thread of this discussion stated the following, “So not only did the Order come from a foreign jurisdiction but, ironically, RIPE-NCC, which is run by people who insist that IP addresses are not property, was served with a legal order that seems to classify addresses as property” did not consider the Ministerial Text above where at least for the Europeans IP address resources should be regarded as shared “public resources”.
To read other Declarations and recommendations, visit: http://www.coe.int/t/dghl/standardsetting/media/Doc/CM_en.asp
*Prioritisation of Rights*
*European Court of Justice*
There are some interesting developments by the European Court of Justice on the prioritisation of rights, which James S Tyre had alerted the At Large List (during the debate on the thick Whois vrs thin Whois discussions/debates) where EU law precludes the imposition of an injunction by a national court which requires an Internet Service Provider (ISP) to install a filtering system with a view to preventing the illegal downloading of files, see the Press Release: http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-11/cp110126en.p... The actual Judgment that was just released on the 24th November, 2011 is available here: http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=Submit&numaff=C...
Actually the significance of this Judgment is in relation to how they dealt with the prioritisation of rights, that is the rights if intellectual property owners, the rights of ISPs to conduct their business freely, the freedom to receive and impart information and the rights of consumers to privacy. "The injunction requiring installation of the contested filtering system involve a systematic analysis of all content, [ISPs cannot afford this and at the end of the day, this cost would be borne by customers somehow] and the collection and identification of users' IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified". (Highlighted portion is mine)
The consideration in how the Judges arrived at their decision is on [para 52, 53] where there is no guarantee that lawful content would not be blocked. After considering all the rights stemming from the Directives listed in para 55, the courts held in favour of "privacy" of consumers that is fundamental rights trumping when reading all of the Directives together. Although the European Court of Justice recommended that harmonization take place.
*European Court of Human Rights*
Two interesting cases from the European Court of Human Rights are:
Case of Klass and Others v. Germany (a leading case, 1978) see:
http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695387&por...
Case of the Association for European Integration and Human Rights and Ekimdzhiev V. Bulgaria, see:
http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&hi...
The following fact sheet / summary provides an overview of Article 8 case law:
-- Salanieta Tamanikaiwaimaro aka Sala Tweeter: @SalanietaT Skype:Salanieta.Tamanikaiwaimaro Cell: +679 998 2851