At 14:33 07/03/2008, Danny Younger wrote:
Following your remarks to McTim below, and supposing this indeed is done through the courts, the interesting set of questions here is :
1) Would/should a foreign registrar comply with a court order from the US ? 2) And if it failed to do so, would the court order Verisign to do it (block the domain name) ? 3) Should Verisign do it, does that mean that all .com registrants become indirectly subject to US law, not only in terms of appropriate strings, but also in terms of the very activity they run, even on servers not located on US territory and serving customers outside of the US ?
This is a real and useful discussion. Nothing to do with the "oversight of the root" via IANA. It is exposing the core challenge of competing or overlapping jurisdictions and probably the need for some "globally-applicable public policy principles". I believe nobody has the full complete answer.
Danny, Bertand, this is an important issue which raises the question of National Constitution overlaps. My understanding slightly differs because it is based upon the Internet Constitution and on the existing jurisprudence of the Rights of the Seas which considers the case of national ships subject to local foreign laws.
In my personal view, this is an illustration of the mutation of sovereignty, disconnecting it from the sole physical territory and allowing it to expand in a fractal manner on other territories - or conversely, retract - depending on the influence of the corresponding national actors in the digital sphere.
Correct. But I do not see how can this be said "fractal", since the nature and legitimacy of the sovereignty is different? The US authority may practically extend over a French citizen (starting with Patriot Act, or Guantanamo) but this authority is not the same as the one the French Constitution acknowledges to the French Government on its citizens, and to the US Government on its own citizens.
And those national actors are not only the governments : the existence of a dominant player in a specific domain (Verisign, but also a Google, YouTube, MySpace or Facebook) does bring the corresponding government a leverage. But it probably also gives it a special responsibility it did not have before.
Correct: IMHO it helps governments better understand their job in today's world (1) which is to manage national regalian extending services and (2) better understand that they are in competition with other regalian and dominant services. Every government knows what is tax competition. What is new is that the national territory is now not only real (land and infrastructures) and imaginary (culture) but also virtual. This is this territorial extension which is challenged (much like with Christopher Columbus, Magellan, Cartier, etc.). This also calls for a new phrasing to define a nation, a state, a fatherland. As some of their metadata are "emerging". There is no much difference between Portugal and Spain 500 years ago and Europe and USA now. It is certainly true that national virtual territories are currently significantly e-colonized by the US industry, through the "globalization" process we know quite well at the IETF. It uses the international extension of the US standards ("internationalization") to force interoperability through the localization process (their local adjustment) along with their US industry classification (Unicode). . That classification is unilaterally registered by the IANA LSRegistry in competition with the multilateral ISO 3166 reference. This is the "shaping the world" strategy. This strategy was disavowed at ISO where it was only supported by UK, Ireland and USA. It is the real stake of the Fast Crack ccNSO project. However, much is only the result of architectural lacks of the Internet which are not difficult to correct. However, their correction will deeply modify the Internet Governance, and therefore the very operations of the Internet. This is why great care is to be taken in doing it. The transition must be seamless, respecting the consensual agreement over legacy/emergences signed in Tunis (even if many of the signatories ignored what they actually signed). Let remember the adage "the Internet constitution is in the source code". This is very concerning as it means that the Internet stability is very uncertain. And not dependent at all on ICANN. But on the simple understanding of, for example, why the IDNs are not here for 8 years.
This notion of "fractal sovereignty" is harder to handle than the traditional territory-based one but probably more adapted to our connected world than the notion of strict subsidiarity : the challenge is to manage interdependence and interactions.
This is something which should be also documented: "strict subsidiarity" can be understood in three ways: - objective : the full respect of subsidiarity - subjective: a subsidiarity with "strict" results. - circumjective: a subsidiarity which could be perceived as rigid by third stakeholders.
To enrich the discussion, I'd like to put in perspective here the issue of IDNs. Will the physical location of the future major registries for IDN TLDs (particularly gTLDs if any) give the corresponding national courts a specific authority/legal power on all registrants in those TLDs, even if they are not located in that country and have no business with its citizens ?
This is a good question. However two points should be clarified first: (1) what is the difference with the ASCII ccTLDs except that some bilateral trade reciprocity obligations can be involved or TTBs, (2) how could someone not located in a country and having no business with its citizens get a local language IDN ? I understand this is today the case for some ccTLDs like ".tv". Only because "TV" is a famous international name. By essence this is not the case with non-ASCII DNs
These are deep policy issues and I'd be interested in comments on those challenges. Because they are challenges for governments too.
This is the reason of the comments. Cordialement jfc