Re: [At-Large] R: R: Is ICANN's oversight really moving away from the US government?
Seth As a non-US registrar I’ve got a bit of experience in this area – see responses inline below Two observations. 1. What is to stop a non-US court from taking a similar enforcement action against a registrar within that country and seizing domains? Non-US courts have been known to take jurisdiction over business outside their countries based upon the business’s goods and services being accessible within the country through the Internet. Short answer – nothing. 2. Cannot the non-US business that conducts itself legally within the laws of its country register its domains with a non-US registrar? Yes and they do, however if the registry operator is a US based entity then a US court can issue a court order to have the domains seized directly at the registry. It’s happened to clients of ours. I do not deny there is an uneven playing field because ICANN is more easily subject to US jurisdiction and law than the jurisdictions and laws of other countries, but your arguments may go too far. The issue around domain seizures has nothing to do with ICANN. Any domain seizure cases I’ve seen (including the examples cited by Parminder) were all made either at the registrar or registry level. I haven’t see any cases where ICANN has been involved directly (though they often get named in cases) If you want to avoid the reach of the US then you need to use: * a non-US registry * A non-US registrar * A non-US hosting provider Obviously if you want to go down that route you won’t be able to use .com or a lot of the other gTLDs, as even the ones that aren’t US owned are often using US based providers for their backend services. Regards Michele -- Mr Michele Neylon Blacknight Solutions Hosting, Colocation & Domains http://www.blacknight.host/ http://blog.blacknight.com/ http://ceo.hosting/ Intl. +353 (0) 59 9183072 ------------------------------- Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty Road,Graiguecullen,Carlow,Ireland Company No.: 370845
On 08/04/2016 00:57, Michele Neylon - Blacknight wrote:
The issue around domain seizures has nothing to do with ICANN. Any domain seizure cases I’ve seen (including the examples cited by Parminder) were all made either at the registrar or registry level. I haven’t see any cases where ICANN has been involved directly (though they often get named in cases)
You're absolutely correct. And the only "seizures" that were requested, were those of Top Level Domains: http://www.bbc.com/news/technology-28582478 There are many other sources that describe the case in detail. The judge sided with ICANN in saying that "they are not property subject to attachment under District of Columbia Law". In this case, it is actually a good thing that the case had to go in front of a US court since jurisprudence already existed. Kindest regards, Olivier
Since the us government is beholden to foreign governments and corporate interests, it has no ability or courage to not give those entities more power to seize websites, for example, of people engaging in free speech, and one purpose of the transition process is to aide those foreign governments and corporate entities to consolidate their own power over their citizens, as well as the power of the globalist oligarchy hiding behind phony democracies and hiding stagnant technological progress behind the introduction of 'driverless cars', drones, the 'IWatch' and other technologies designed to help billionaire owned authority oppress the individual human being. Ron
On Friday 08 April 2016 04:54 AM, Olivier MJ Crepin-Leblond wrote:
Snip......You're absolutely correct. And the only "seizures" that were requested, were those of Top Level Domains: http://www.bbc.com/news/technology-28582478 There are many other sources that describe the case in detail. The judge sided with ICANN in saying that "they are not property subject to attachment under District of Columbia Law". In this case, it is actually a good thing that the case had to go in front of a US court since jurisprudence already existed. Kindest regards, Olivier
You are describing a case where a private party sought seizure of a ccTLD (Iranian) on quite dubious grounds.... You are not willing to discuss all the cases in which domain names were seized through orders to the registries..... You are not ready to respond to the question on what would happen if a closed business gTLD is similarly brought to a US court, in which case ICANN ittself is the registry, as Verisign etc were registries for .com, etc, and thus the party to which earlier orders were directed. Any order for gTLD seizures would clearly be directed at ICANN. And the latter has no protection against it. The Iranian ccTLD case that you cite was dismissed inter alia with the argument that this ccTLD involved service to a wider community and thus the asked for action will be disproportionate (Although in earlier cases assets of banks and other service companies similarly servicing a wider community have been seized).. This argument does not apply for a gTLD used exclusively by a business, which business a US court may be ready to punish for it being offending to it in some way. Why the oversight transition process would want to go into such elaborate stress tests involving rather unlikely future scenarios where all governments (including the US and its allies) would gang together against some ICANN decision, but simply refuse to do a stress test for an extremely likely (actually, inevitable) future scenario in which the ICANN, as a US organisation, will be directed to remove a foreign gLTD by a US agency, most likely a court, for which evidence of closely parallel actions exist, and in huge amounts...... (And yes, the demand for such a stress test was made, but never responded to.) Does this not clearly show how the whole process is rigged? ... . Does one need a better proof? But that is less surprising to me, what is much more is that this public interest civil society group - ALAC - wants to maintain a studied silence in the subject.. parminder
Dear Parminder, I see that your interactions in other threads of the same topic have all run out of steam, ending up in circular arguments. Let me also try to explain things in a simple manner to try and get you to understand *why* your argument does not hold. On 09/04/2016 06:54, parminder wrote:
You are describing a case where a private party sought seizure of a ccTLD (Iranian) on quite dubious grounds....
That is correct. This was a concrete case.
You are not willing to discuss all the cases in which domain names were seized through orders to the registries.....
Because that has *nothing* to do with ICANN! I am surprised that you would not know the difference between the Root & the Registries, but let me try and explain it in a clear a way I can try. The Domain Name System (DNS) is a hierarchical decentralized naming system for computers, services, or any resource connected to the Internet or a private network. Note the words: "hierarchical" and "decentralized". At the top of the hierarchy, there is the ROOT. That database contains a list of all of the top level domains, including generic top level domains, country code top level domains, internationalised top level domains etc. That database points to the nameservers which contain the next level domain of each top level domain. These databases are run by each top level domain Registries running that particular top level domain. The databases run by the Registries then point to the nameservers for a sub-domain, often run by the internet service provider or other provider that's agreed to run the DNS for a particular domain. Let me take an example for my company's domain name gih.com - and I am simplifying the interactions between nameservers queries etc. but roughly this is what happens: When you send me an email, your mail exchanger checks the domain gih.com The Root server (or one of its copies) returns information that the .COM Top Level Domain is run by the Verisign Registry so the query is forwarded to the nameserver for .COM. at the Verisign Registry. That nameserver returns the IP address of the nameserver for GIH.COM - that's auth1.ns.gin.ntt.net and the query is forwarded there. That nameserver is the only one that has all of the details for domain name GIH.COM and what actual computer to send the email to. You are complaining that domain name take-downs have been sent to the Registry. Well, it's a fat of life that .COM is run by Verisign and that Verisign is a US company, so it is subjected to US law. I find this quite normal. If someone want to have a domain name that's registered with a non-US company, that's perfectly possible too. You can register domains under Country Code Top Level domains that are run by companies which are not based in the United States. In fact there are now a lot of Generic Top Level Domains that are not run by US companies. So the choice is there for end users to register domains under a variety of jurisdictions.
You are not ready to respond to the question on what would happen if a closed business gTLD is similarly brought to a US court, in which case ICANN ittself is the registry, as Verisign etc were registries for .com, etc, and thus the party to which earlier orders were directed. Any order for gTLD seizures would clearly be directed at ICANN. And the latter has no protection against it.
No. Not at all. ICANN is not a Registry. It is currently running .INT and a couple of other technical gTLDs, but its work is not to run Registries. What I think you are arguing is that ICANN could receive an order to have gih.com seized. It would be able to do nothing about it. It would forward this request to Verisign, who would take the action it deems necessary. But let's say GIH was under top level domain "example" and this was run by a Registry based in India. If ICANN received a request to seize gih.example, it would forward this request to the Registry in India and it is the Registry in India that would decide what they want to do. Nothing to do with ICANN. Is this clearer now? Kind regards, Olivier
Olivier MJ Crepin-Leblond <ocl@gih.com> [2016-04-08 01:24:44 +0200]:
On 08/04/2016 00:57, Michele Neylon - Blacknight wrote:
The issue around domain seizures has nothing to do with ICANN. Any domain seizure cases I’ve seen (including the examples cited by Parminder) were all made either at the registrar or registry level. I haven’t see any cases where ICANN has been involved directly (though they often get named in cases)
You're absolutely correct. And the only "seizures" that were requested, were those of Top Level Domains: http://www.bbc.com/news/technology-28582478 There are many other sources that describe the case in detail. The judge sided with ICANN in saying that "they are not property subject to attachment under District of Columbia Law".
And dear Olivier, you are absolutely incorrect. U.S. authorities have seized thousands of websites (once accidentally seizing 84,000!): https://torrentfreak.com/feds-seize-130-domain-names-in-mass-crackdown-11112... https://torrentfreak.com/u-s-government-seizes-bittorrent-search-engine-doma... http://www.theregister.co.uk/2011/02/18/fed_domain_seizure_slammed/ https://www.europol.europa.eu/content/690-internet-domain-names-seized-becau... http://www.wired.com/2012/03/feds-seize-foreign-sites/ The majority of the world's registries and registrars are headquartered in the US: * 3 in 5 registrars are from the United States of America (624 out of 1010, as of March 2014, according to ICANN's accredited registrars list), with only 0.6% being from the 54 countries in Africa (7 out of 1010). * 45% of all the registries are from the United States of America! (307 out of 672 registries listed in ICANN’s registry directory in August 2015.) http://cis-india.org/internet-governance/blog/global-multistakeholder-commun... So, yes, every country has the ability to exert power over registries and registrars, but some have more powers than others.
In this case, it is actually a good thing that the case had to go in front of a US court since jurisprudence already existed.
That is incorrect, since many would see the jurisprudence on a domain name as inapplicable to a TLD. And even if you don't, the reality is that the US is not one singular legal entity. There is a wide divergence of opinions within US courts as to whether domain names are property or not, and very little as to whether TLDs are properties are not. A helpful footnote in one of A. Michael Froomkin's articles provides this bibliography: Anupam Chander, The New, New Property, 81 TEX. L. REV. 715, 776-781 (2003) (“Understanding domain names as property accords with how they are treated in practice.”); Juliet M. Moringiello, What Virtual Worlds Can Do for Property Law, 62 FLA. L. REV. 159, 179 (2010) (discussing the Virginia Supreme Court’s conclusion in Network Solutions, Inc. v. Umbro Int’l, Inc., 529 S.E.2d 80, 86 (Va. 2000) that a domain name represents a service contract, not property subject to garnishment); Xuan-Thao N. Nguyen, Commercial Law Collides with Cyberspace: The Trouble with Perfection – Insecurity Interests in the New Corporate Asset, 59 WASH. & LEE L. REV. 37, 65 (2002) (“The classification of domain names as either property or contracts is an issue of first impression with which courts have struggled.”); XuanThao N. Nguyen, Cyberproperty and Judicial Dissonance: The Trouble with Domain Name Classification, 10 GEO. MASON L. REV. 183, 186 (2001) (recognizing domain names as intangible property). -- Pranesh Prakash Policy Director, Centre for Internet and Society http://cis-india.org | tel:+91 80 40926283 sip:pranesh@ostel.co | xmpp:pranesh@cis-india.org https://twitter.com/pranesh
Dear Pranesh, Quote So, yes, every country has the ability to exert power over registries and registrars, but some have more powers than others. Unquote I disagree with you on this. The fact that the US is the country with the most registry/registrar doesn't give it more power not only allows it to coerce more actors but with the same (theoretical) power as any country with a single registry/registrar. As a matter of fact, having a broad number of registry/registrar might decrease one country's power to act against them as a coalition of registry/registrar would be able to deal with issues better than a single registry/registrar against a government all alone. Kind regards, León
El abr 26, 2016, a las 7:54 AM, Pranesh Prakash <pranesh@cis-india.org> escribió:
Olivier MJ Crepin-Leblond <ocl@gih.com> [2016-04-08 01:24:44 +0200]:
On 08/04/2016 00:57, Michele Neylon - Blacknight wrote: The issue around domain seizures has nothing to do with ICANN. Any domain seizure cases I’ve seen (including the examples cited by Parminder) were all made either at the registrar or registry level. I haven’t see any cases where ICANN has been involved directly (though they often get named in cases)
You're absolutely correct. And the only "seizures" that were requested, were those of Top Level Domains: http://www.bbc.com/news/technology-28582478 There are many other sources that describe the case in detail. The judge sided with ICANN in saying that "they are not property subject to attachment under District of Columbia Law".
And dear Olivier, you are absolutely incorrect.
U.S. authorities have seized thousands of websites (once accidentally seizing 84,000!): https://torrentfreak.com/feds-seize-130-domain-names-in-mass-crackdown-11112... https://torrentfreak.com/u-s-government-seizes-bittorrent-search-engine-doma... http://www.theregister.co.uk/2011/02/18/fed_domain_seizure_slammed/ https://www.europol.europa.eu/content/690-internet-domain-names-seized-becau... http://www.wired.com/2012/03/feds-seize-foreign-sites/
The majority of the world's registries and registrars are headquartered in the US: * 3 in 5 registrars are from the United States of America (624 out of 1010, as of March 2014, according to ICANN's accredited registrars list), with only 0.6% being from the 54 countries in Africa (7 out of 1010). * 45% of all the registries are from the United States of America! (307 out of 672 registries listed in ICANN’s registry directory in August 2015.)
http://cis-india.org/internet-governance/blog/global-multistakeholder-commun...
So, yes, every country has the ability to exert power over registries and registrars, but some have more powers than others.
In this case, it is actually a good thing that the case had to go in front of a US court since jurisprudence already existed.
That is incorrect, since many would see the jurisprudence on a domain name as inapplicable to a TLD.
And even if you don't, the reality is that the US is not one singular legal entity. There is a wide divergence of opinions within US courts as to whether domain names are property or not, and very little as to whether TLDs are properties are not. A helpful footnote in one of A. Michael Froomkin's articles provides this bibliography:
Anupam Chander, The New, New Property, 81 TEX. L. REV. 715, 776-781 (2003) (“Understanding domain names as property accords with how they are treated in practice.”); Juliet M. Moringiello, What Virtual Worlds Can Do for Property Law, 62 FLA. L. REV. 159, 179 (2010) (discussing the Virginia Supreme Court’s conclusion in Network Solutions, Inc. v. Umbro Int’l, Inc., 529 S.E.2d 80, 86 (Va. 2000) that a domain name represents a service contract, not property subject to garnishment); Xuan-Thao N. Nguyen, Commercial Law Collides with Cyberspace: The Trouble with Perfection – Insecurity Interests in the New Corporate Asset, 59 WASH. & LEE L. REV. 37, 65 (2002) (“The classification of domain names as either property or contracts is an issue of first impression with which courts have struggled.”); XuanThao N. Nguyen, Cyberproperty and Judicial Dissonance: The Trouble with Domain Name Classification, 10 GEO. MASON L. REV. 183, 186 (2001) (recognizing domain names as intangible property).
-- Pranesh Prakash Policy Director, Centre for Internet and Society http://cis-india.org | tel:+91 80 40926283 sip:pranesh@ostel.co | xmpp:pranesh@cis-india.org https://twitter.com/pranesh
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At-Large Official Site: http://atlarge.icann.org
+1 -- Mr Michele Neylon Blacknight Solutions Hosting, Colocation & Domains http://www.blacknight.host/ http://blog.blacknight.com/ http://ceo.hosting/ Intl. +353 (0) 59 9183072 Direct Dial: +353 (0)59 9183090 ------------------------------- Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty Road,Graiguecullen,Carlow,R93 X265,Ireland Company No.: 370845 On 26/04/2016, 14:19, "León Felipe Sánchez Ambía" <leonfelipe@sanchez.mx> wrote:
Dear Pranesh,
Quote
So, yes, every country has the ability to exert power over registries and registrars, but some have more powers than others.
Unquote
I disagree with you on this. The fact that the US is the country with the most registry/registrar doesn't give it more power not only allows it to coerce more actors but with the same (theoretical) power as any country with a single registry/registrar. As a matter of fact, having a broad number of registry/registrar might decrease one country's power to act against them as a coalition of registry/registrar would be able to deal with issues better than a single registry/registrar against a government all alone.
Kind regards,
León
El abr 26, 2016, a las 7:54 AM, Pranesh Prakash <pranesh@cis-india.org> escribió:
Olivier MJ Crepin-Leblond <ocl@gih.com> [2016-04-08 01:24:44 +0200]:
On 08/04/2016 00:57, Michele Neylon - Blacknight wrote: The issue around domain seizures has nothing to do with ICANN. Any domain seizure cases I’ve seen (including the examples cited by Parminder) were all made either at the registrar or registry level. I haven’t see any cases where ICANN has been involved directly (though they often get named in cases)
You're absolutely correct. And the only "seizures" that were requested, were those of Top Level Domains: http://www.bbc.com/news/technology-28582478 There are many other sources that describe the case in detail. The judge sided with ICANN in saying that "they are not property subject to attachment under District of Columbia Law".
And dear Olivier, you are absolutely incorrect.
U.S. authorities have seized thousands of websites (once accidentally seizing 84,000!): https://torrentfreak.com/feds-seize-130-domain-names-in-mass-crackdown-11112... https://torrentfreak.com/u-s-government-seizes-bittorrent-search-engine-doma... http://www.theregister.co.uk/2011/02/18/fed_domain_seizure_slammed/ https://www.europol.europa.eu/content/690-internet-domain-names-seized-becau... http://www.wired.com/2012/03/feds-seize-foreign-sites/
The majority of the world's registries and registrars are headquartered in the US: * 3 in 5 registrars are from the United States of America (624 out of 1010, as of March 2014, according to ICANN's accredited registrars list), with only 0.6% being from the 54 countries in Africa (7 out of 1010). * 45% of all the registries are from the United States of America! (307 out of 672 registries listed in ICANN’s registry directory in August 2015.)
http://cis-india.org/internet-governance/blog/global-multistakeholder-commun...
So, yes, every country has the ability to exert power over registries and registrars, but some have more powers than others.
In this case, it is actually a good thing that the case had to go in front of a US court since jurisprudence already existed.
That is incorrect, since many would see the jurisprudence on a domain name as inapplicable to a TLD.
And even if you don't, the reality is that the US is not one singular legal entity. There is a wide divergence of opinions within US courts as to whether domain names are property or not, and very little as to whether TLDs are properties are not. A helpful footnote in one of A. Michael Froomkin's articles provides this bibliography:
Anupam Chander, The New, New Property, 81 TEX. L. REV. 715, 776-781 (2003) (“Understanding domain names as property accords with how they are treated in practice.”); Juliet M. Moringiello, What Virtual Worlds Can Do for Property Law, 62 FLA. L. REV. 159, 179 (2010) (discussing the Virginia Supreme Court’s conclusion in Network Solutions, Inc. v. Umbro Int’l, Inc., 529 S.E.2d 80, 86 (Va. 2000) that a domain name represents a service contract, not property subject to garnishment); Xuan-Thao N. Nguyen, Commercial Law Collides with Cyberspace: The Trouble with Perfection – Insecurity Interests in the New Corporate Asset, 59 WASH. & LEE L. REV. 37, 65 (2002) (“The classification of domain names as either property or contracts is an issue of first impression with which courts have struggled.”); XuanThao N. Nguyen, Cyberproperty and Judicial Dissonance: The Trouble with Domain Name Classification, 10 GEO. MASON L. REV. 183, 186 (2001) (recognizing domain names as intangible property).
-- Pranesh Prakash Policy Director, Centre for Internet and Society http://cis-india.org | tel:+91 80 40926283 sip:pranesh@ostel.co | xmpp:pranesh@cis-india.org https://twitter.com/pranesh
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Dear León, Unfortunately, that kind of collective opposition might sound good in theory but didn't happen in practice. No registry challenged the US government on their domain name seizures, nor or on allied efforts such as SOPA/PIPA. Verisign, the gorilla in the room, most definitely did not oppose either bill. A quick search on Google doesn't reveal PIR having opposed SOPA either: https://www.google.co.in/search?num=30&q=sopa+site%3Apir.org&oq=sopa+site%3A... Further, given the current state of US fedearl law as interpreted by courts in Maryland, SOPA is not needed at all: https://webcache.googleusercontent.com/search?q=cache:vaHrheCn_2sJ:www.techs... https://atlarge-lists.icann.org/pipermail/at-large/2012q1/001444.html Not only does the US have the largest number of registries and registrars, they also have the largest registries and registrars, meaning the largest number of domains in the world are — per US authorities — subject to seizures. Regards, Pranesh León Felipe Sánchez Ambía <leonfelipe@sanchez.mx> [2016-04-26 08:19:07 -0500]:
Dear Pranesh,
Quote
So, yes, every country has the ability to exert power over registries and registrars, but some have more powers than others.
Unquote
I disagree with you on this. The fact that the US is the country with the most registry/registrar doesn't give it more power not only allows it to coerce more actors but with the same (theoretical) power as any country with a single registry/registrar. As a matter of fact, having a broad number of registry/registrar might decrease one country's power to act against them as a coalition of registry/registrar would be able to deal with issues better than a single registry/registrar against a government all alone.
Kind regards,
León
El abr 26, 2016, a las 7:54 AM, Pranesh Prakash <pranesh@cis-india.org> escribió:
Olivier MJ Crepin-Leblond <ocl@gih.com> [2016-04-08 01:24:44 +0200]:
On 08/04/2016 00:57, Michele Neylon - Blacknight wrote: The issue around domain seizures has nothing to do with ICANN. Any domain seizure cases I’ve seen (including the examples cited by Parminder) were all made either at the registrar or registry level. I haven’t see any cases where ICANN has been involved directly (though they often get named in cases)
You're absolutely correct. And the only "seizures" that were requested, were those of Top Level Domains: http://www.bbc.com/news/technology-28582478 There are many other sources that describe the case in detail. The judge sided with ICANN in saying that "they are not property subject to attachment under District of Columbia Law".
And dear Olivier, you are absolutely incorrect.
U.S. authorities have seized thousands of websites (once accidentally seizing 84,000!): https://torrentfreak.com/feds-seize-130-domain-names-in-mass-crackdown-11112... https://torrentfreak.com/u-s-government-seizes-bittorrent-search-engine-doma... http://www.theregister.co.uk/2011/02/18/fed_domain_seizure_slammed/ https://www.europol.europa.eu/content/690-internet-domain-names-seized-becau... http://www.wired.com/2012/03/feds-seize-foreign-sites/
The majority of the world's registries and registrars are headquartered in the US: * 3 in 5 registrars are from the United States of America (624 out of 1010, as of March 2014, according to ICANN's accredited registrars list), with only 0.6% being from the 54 countries in Africa (7 out of 1010). * 45% of all the registries are from the United States of America! (307 out of 672 registries listed in ICANN’s registry directory in August 2015.)
http://cis-india.org/internet-governance/blog/global-multistakeholder-commun...
So, yes, every country has the ability to exert power over registries and registrars, but some have more powers than others.
In this case, it is actually a good thing that the case had to go in front of a US court since jurisprudence already existed.
That is incorrect, since many would see the jurisprudence on a domain name as inapplicable to a TLD.
And even if you don't, the reality is that the US is not one singular legal entity. There is a wide divergence of opinions within US courts as to whether domain names are property or not, and very little as to whether TLDs are properties are not. A helpful footnote in one of A. Michael Froomkin's articles provides this bibliography:
Anupam Chander, The New, New Property, 81 TEX. L. REV. 715, 776-781 (2003) (“Understanding domain names as property accords with how they are treated in practice.”); Juliet M. Moringiello, What Virtual Worlds Can Do for Property Law, 62 FLA. L. REV. 159, 179 (2010) (discussing the Virginia Supreme Court’s conclusion in Network Solutions, Inc. v. Umbro Int’l, Inc., 529 S.E.2d 80, 86 (Va. 2000) that a domain name represents a service contract, not property subject to garnishment); Xuan-Thao N. Nguyen, Commercial Law Collides with Cyberspace: The Trouble with Perfection – Insecurity Interests in the New Corporate Asset, 59 WASH. & LEE L. REV. 37, 65 (2002) (“The classification of domain names as either property or contracts is an issue of first impression with which courts have struggled.”); XuanThao N. Nguyen, Cyberproperty and Judicial Dissonance: The Trouble with Domain Name Classification, 10 GEO. MASON L. REV. 183, 186 (2001) (recognizing domain names as intangible property).
-- Pranesh Prakash Policy Director, Centre for Internet and Society http://cis-india.org | tel:+91 80 40926283 sip:pranesh@ostel.co | xmpp:pranesh@cis-india.org https://twitter.com/pranesh
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-- Pranesh Prakash Policy Director, Centre for Internet and Society http://cis-india.org | tel:+91 80 40926283 sip:pranesh@ostel.co | xmpp:pranesh@cis-india.org https://twitter.com/pranesh
Thanks Pranesh, I believe we’re mixing apples and oranges here. One issue I identify in this conversation is the one going on in regard to ICANN being subject to U.S. jurisdiction. Another, very different, issue is whether the US has seized a number of domains based on whatever basis (Patriot ACT, OFAC, SOPA, PIPA, baby Jesus) they consider as grounds for seizure. I definitely don’t support the seizures that have taken place. In fact that made me switch from having my domains with Godaddy to having them with Gandi. However, this last issue, I believe, seems irrelevant to the discussion on whether the US government would have more power than other countries for the fact that ICANN continues to be a US bases non for profit California Corporation. As for not having a DNRRs alliance stand against SOPA-PIPA, we need to understand that not all battles are for everyone to fight. While I have taken part in many of those battles against what I believe to be unbalanced laws, I too understand that there are people who’s businesses depend on continuing to be neutral to this kind of political storms. That is politics, not legal issues. There are far more tools the US government can use to extend their jurisdiction to foreign countries than the fact that ICANN is a US bases Corporation. Take a look at OFAC and how they seize assets all around the world with cooperation from other countries. To summarize, I believe that having ICANN to continue as a US based Corporation doesn’t give the US government more power in regard to the DNS in comparison to that of any other country. I don’t want to name other countries but I’m sure you’re quite familiar to the situation in several countries when it comes to the DNS. Best regards, León
El 26/04/2016, a las 10:31 a.m., Pranesh Prakash <pranesh@cis-india.org> escribió:
Dear León, Unfortunately, that kind of collective opposition might sound good in theory but didn't happen in practice. No registry challenged the US government on their domain name seizures, nor or on allied efforts such as SOPA/PIPA. Verisign, the gorilla in the room, most definitely did not oppose either bill. A quick search on Google doesn't reveal PIR having opposed SOPA either: https://www.google.co.in/search?num=30&q=sopa+site%3Apir.org&oq=sopa+site%3A...
Further, given the current state of US fedearl law as interpreted by courts in Maryland, SOPA is not needed at all: https://webcache.googleusercontent.com/search?q=cache:vaHrheCn_2sJ:www.techs...
https://atlarge-lists.icann.org/pipermail/at-large/2012q1/001444.html
Not only does the US have the largest number of registries and registrars, they also have the largest registries and registrars, meaning the largest number of domains in the world are — per US authorities — subject to seizures.
Regards, Pranesh
León Felipe Sánchez Ambía <leonfelipe@sanchez.mx> [2016-04-26 08:19:07 -0500]:
Dear Pranesh,
Quote
So, yes, every country has the ability to exert power over registries and registrars, but some have more powers than others.
Unquote
I disagree with you on this. The fact that the US is the country with the most registry/registrar doesn't give it more power not only allows it to coerce more actors but with the same (theoretical) power as any country with a single registry/registrar. As a matter of fact, having a broad number of registry/registrar might decrease one country's power to act against them as a coalition of registry/registrar would be able to deal with issues better than a single registry/registrar against a government all alone.
Kind regards,
León
El abr 26, 2016, a las 7:54 AM, Pranesh Prakash <pranesh@cis-india.org> escribió:
Olivier MJ Crepin-Leblond <ocl@gih.com> [2016-04-08 01:24:44 +0200]:
On 08/04/2016 00:57, Michele Neylon - Blacknight wrote: The issue around domain seizures has nothing to do with ICANN. Any domain seizure cases I’ve seen (including the examples cited by Parminder) were all made either at the registrar or registry level. I haven’t see any cases where ICANN has been involved directly (though they often get named in cases)
You're absolutely correct. And the only "seizures" that were requested, were those of Top Level Domains: http://www.bbc.com/news/technology-28582478 There are many other sources that describe the case in detail. The judge sided with ICANN in saying that "they are not property subject to attachment under District of Columbia Law".
And dear Olivier, you are absolutely incorrect.
U.S. authorities have seized thousands of websites (once accidentally seizing 84,000!): https://torrentfreak.com/feds-seize-130-domain-names-in-mass-crackdown-11112... https://torrentfreak.com/u-s-government-seizes-bittorrent-search-engine-doma... http://www.theregister.co.uk/2011/02/18/fed_domain_seizure_slammed/ https://www.europol.europa.eu/content/690-internet-domain-names-seized-becau... http://www.wired.com/2012/03/feds-seize-foreign-sites/
The majority of the world's registries and registrars are headquartered in the US: * 3 in 5 registrars are from the United States of America (624 out of 1010, as of March 2014, according to ICANN's accredited registrars list), with only 0.6% being from the 54 countries in Africa (7 out of 1010). * 45% of all the registries are from the United States of America! (307 out of 672 registries listed in ICANN’s registry directory in August 2015.)
http://cis-india.org/internet-governance/blog/global-multistakeholder-commun...
So, yes, every country has the ability to exert power over registries and registrars, but some have more powers than others.
In this case, it is actually a good thing that the case had to go in front of a US court since jurisprudence already existed.
That is incorrect, since many would see the jurisprudence on a domain name as inapplicable to a TLD.
And even if you don't, the reality is that the US is not one singular legal entity. There is a wide divergence of opinions within US courts as to whether domain names are property or not, and very little as to whether TLDs are properties are not. A helpful footnote in one of A. Michael Froomkin's articles provides this bibliography:
Anupam Chander, The New, New Property, 81 TEX. L. REV. 715, 776-781 (2003) (“Understanding domain names as property accords with how they are treated in practice.”); Juliet M. Moringiello, What Virtual Worlds Can Do for Property Law, 62 FLA. L. REV. 159, 179 (2010) (discussing the Virginia Supreme Court’s conclusion in Network Solutions, Inc. v. Umbro Int’l, Inc., 529 S.E.2d 80, 86 (Va. 2000) that a domain name represents a service contract, not property subject to garnishment); Xuan-Thao N. Nguyen, Commercial Law Collides with Cyberspace: The Trouble with Perfection – Insecurity Interests in the New Corporate Asset, 59 WASH. & LEE L. REV. 37, 65 (2002) (“The classification of domain names as either property or contracts is an issue of first impression with which courts have struggled.”); XuanThao N. Nguyen, Cyberproperty and Judicial Dissonance: The Trouble with Domain Name Classification, 10 GEO. MASON L. REV. 183, 186 (2001) (recognizing domain names as intangible property).
-- Pranesh Prakash Policy Director, Centre for Internet and Society http://cis-india.org | tel:+91 80 40926283 sip:pranesh@ostel.co | xmpp:pranesh@cis-india.org https://twitter.com/pranesh
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Yes Leon i agree with your thesis more registry/ registrar makes their association strong not the government of the country where they are located Vanda Scartezini Sent from my iPhone Sorry for typos
On 26 de abr de 2016, at 10:25, León Felipe Sánchez Ambía <leonfelipe@sanchez.mx> wrote:
Dear Pranesh,
Quote
So, yes, every country has the ability to exert power over registries and registrars, but some have more powers than others.
Unquote
I disagree with you on this. The fact that the US is the country with the most registry/registrar doesn't give it more power not only allows it to coerce more actors but with the same (theoretical) power as any country with a single registry/registrar. As a matter of fact, having a broad number of registry/registrar might decrease one country's power to act against them as a coalition of registry/registrar would be able to deal with issues better than a single registry/registrar against a government all alone.
Kind regards,
León
El abr 26, 2016, a las 7:54 AM, Pranesh Prakash <pranesh@cis-india.org> escribió:
Olivier MJ Crepin-Leblond <ocl@gih.com> [2016-04-08 01:24:44 +0200]:
On 08/04/2016 00:57, Michele Neylon - Blacknight wrote: The issue around domain seizures has nothing to do with ICANN. Any domain seizure cases I’ve seen (including the examples cited by Parminder) were all made either at the registrar or registry level. I haven’t see any cases where ICANN has been involved directly (though they often get named in cases)
You're absolutely correct. And the only "seizures" that were requested, were those of Top Level Domains: http://www.bbc.com/news/technology-28582478 There are many other sources that describe the case in detail. The judge sided with ICANN in saying that "they are not property subject to attachment under District of Columbia Law".
And dear Olivier, you are absolutely incorrect.
U.S. authorities have seized thousands of websites (once accidentally seizing 84,000!): https://torrentfreak.com/feds-seize-130-domain-names-in-mass-crackdown-11112... https://torrentfreak.com/u-s-government-seizes-bittorrent-search-engine-doma... http://www.theregister.co.uk/2011/02/18/fed_domain_seizure_slammed/ https://www.europol.europa.eu/content/690-internet-domain-names-seized-becau... http://www.wired.com/2012/03/feds-seize-foreign-sites/
The majority of the world's registries and registrars are headquartered in the US: * 3 in 5 registrars are from the United States of America (624 out of 1010, as of March 2014, according to ICANN's accredited registrars list), with only 0.6% being from the 54 countries in Africa (7 out of 1010). * 45% of all the registries are from the United States of America! (307 out of 672 registries listed in ICANN’s registry directory in August 2015.)
http://cis-india.org/internet-governance/blog/global-multistakeholder-commun...
So, yes, every country has the ability to exert power over registries and registrars, but some have more powers than others.
In this case, it is actually a good thing that the case had to go in front of a US court since jurisprudence already existed.
That is incorrect, since many would see the jurisprudence on a domain name as inapplicable to a TLD.
And even if you don't, the reality is that the US is not one singular legal entity. There is a wide divergence of opinions within US courts as to whether domain names are property or not, and very little as to whether TLDs are properties are not. A helpful footnote in one of A. Michael Froomkin's articles provides this bibliography:
Anupam Chander, The New, New Property, 81 TEX. L. REV. 715, 776-781 (2003) (“Understanding domain names as property accords with how they are treated in practice.”); Juliet M. Moringiello, What Virtual Worlds Can Do for Property Law, 62 FLA. L. REV. 159, 179 (2010) (discussing the Virginia Supreme Court’s conclusion in Network Solutions, Inc. v. Umbro Int’l, Inc., 529 S.E.2d 80, 86 (Va. 2000) that a domain name represents a service contract, not property subject to garnishment); Xuan-Thao N. Nguyen, Commercial Law Collides with Cyberspace: The Trouble with Perfection – Insecurity Interests in the New Corporate Asset, 59 WASH. & LEE L. REV. 37, 65 (2002) (“The classification of domain names as either property or contracts is an issue of first impression with which courts have struggled.”); XuanThao N. Nguyen, Cyberproperty and Judicial Dissonance: The Trouble with Domain Name Classification, 10 GEO. MASON L. REV. 183, 186 (2001) (recognizing domain names as intangible property).
-- Pranesh Prakash Policy Director, Centre for Internet and Society http://cis-india.org | tel:+91 80 40926283 sip:pranesh@ostel.co | xmpp:pranesh@cis-india.org https://twitter.com/pranesh
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Dear Vanda, Vanda Scartezini <vanda@scartezini.org> [2016-04-26 19:25:18 +0000]:
Yes Leon i agree with your thesis more registry/ registrar makes their association strong not the government of the country where they are located
Could you please point me to the Registry or Registrar association in the US that opposed domain name seizures? I would be much obliged. Regards, Pranesh -- Pranesh Prakash Policy Director, Centre for Internet and Society http://cis-india.org | tel:+91 80 40926283 sip:pranesh@ostel.co | xmpp:pranesh@cis-india.org https://twitter.com/pranesh
Pranesh, just to know what to compare this with, can you point to the equivalent association in India? Alejandro Pisanty - - - - - - - - - - - - - - - - - - - - - - - - - - - Dr. Alejandro Pisanty Facultad de Química UNAM Av. Universidad 3000, 04510 Mexico DF Mexico +52-1-5541444475 FROM ABROAD +525541444475 DESDE MÉXICO SMS +525541444475 Blog: http://pisanty.blogspot.com LinkedIn: http://www.linkedin.com/in/pisanty Unete al grupo UNAM en LinkedIn, http://www.linkedin.com/e/gis/22285/4A106C0C8614 Twitter: http://twitter.com/apisanty ---->> Unete a ISOC Mexico, http://www.isoc.org . . . . . . . . . . . . . . . . ________________________________________ Desde: at-large-bounces@atlarge-lists.icann.org [at-large-bounces@atlarge-lists.icann.org] en nombre de Pranesh Prakash [pranesh@cis-india.org] Enviado el: martes, 26 de abril de 2016 14:34 Hasta: Vanda Scartezini; León Felipe Sánchez Ambía CC: At-Large Worldwide Asunto: Re: [At-Large] R: R: Is ICANN's oversight really moving away from the US government? Dear Vanda, Vanda Scartezini <vanda@scartezini.org> [2016-04-26 19:25:18 +0000]:
Yes Leon i agree with your thesis more registry/ registrar makes their association strong not the government of the country where they are located
Could you please point me to the Registry or Registrar association in the US that opposed domain name seizures? I would be much obliged. Regards, Pranesh -- Pranesh Prakash Policy Director, Centre for Internet and Society http://cis-india.org | tel:+91 80 40926283 sip:pranesh@ostel.co | xmpp:pranesh@cis-india.org https://twitter.com/pranesh
Dr. Alejandro Pisanty Baruch <apisan@unam.mx> [2016-04-26 20:12:48 +0000]:
just to know what to compare this with, can you point to the equivalent association in India?
I don't believe one exists. However India is a country with hardly any registries. León and Vanda seemed to suggest that in a country with many registries the situation would be different, with the registries being in a position to unify in opposition to governmental overreach. I see no evidence of that having happened in the USA, but León and Vanda might prove me wrong. -- Pranesh Prakash Policy Director, Centre for Internet and Society http://cis-india.org | tel:+91 80 40926283 sip:pranesh@ostel.co | xmpp:pranesh@cis-india.org https://twitter.com/pranesh
Dear Pranesh, Evidence on what exactly? of a Registry/Registrar association fighting for what you believe to be just causes to fight for? As I said, there is a wide universe of views out there and the fact that those views are not aligned with yours does not mean that they don’t act or that they won’t act at a certain point in the future. This http://www.thedna.org/what-is-the-domain-name-association/ <http://www.thedna.org/what-is-the-domain-name-association/> seems to be an association that groups registrars, registries and other people interested in the domain name industry. This is just illustrative and to answer to your question on the existence of an association in the US. I don’t think it’s related to the main topic of the discussion. Best regards, León
El 26/04/2016, a las 3:41 p.m., Pranesh Prakash <pranesh@cis-india.org> escribió:
Dr. Alejandro Pisanty Baruch <apisan@unam.mx> [2016-04-26 20:12:48 +0000]:
just to know what to compare this with, can you point to the equivalent association in India?
I don't believe one exists.
However India is a country with hardly any registries. León and Vanda seemed to suggest that in a country with many registries the situation would be different, with the registries being in a position to unify in opposition to governmental overreach.
I see no evidence of that having happened in the USA, but León and Vanda might prove me wrong.
-- Pranesh Prakash Policy Director, Centre for Internet and Society http://cis-india.org | tel:+91 80 40926283 sip:pranesh@ostel.co | xmpp:pranesh@cis-india.org https://twitter.com/pranesh
On Tue, Apr 26, 2016 at 3:34 PM, Pranesh Prakash <pranesh@cis-india.org> wrote:
Dear Vanda,
Vanda Scartezini <vanda@scartezini.org> [2016-04-26 19:25:18 +0000]:
Yes Leon i agree with your thesis more registry/ registrar makes their association strong not the government of the country where they are located
Could you please point me to the Registry or Registrar association in the US that opposed domain name seizures? I would be much obliged.
i2c does quite a bit of that sort of that. Many registrars and hosting providers in that one. theDNA.org should probably take up that sort of thing, but they are fairly nascent.
Regards, Pranesh
-- Pranesh Prakash Policy Director, Centre for Internet and Society http://cis-india.org | tel:+91 80 40926283 sip:pranesh@ostel.co | xmpp:pranesh@cis-india.org https://twitter.com/pranesh
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-- Cheers, McTim "A name indicates what we seek. An address indicates where it is. A route indicates how we get there." Jon Postel
McTim <dogwallah@gmail.com> [2016-04-26 17:45:02 -0400]:
On Tue, Apr 26, 2016 at 3:34 PM, Pranesh Prakash <pranesh@cis-india.org> wrote:
Dear Vanda,
Vanda Scartezini <vanda@scartezini.org> [2016-04-26 19:25:18 +0000]:
Yes Leon i agree with your thesis more registry/ registrar makes their association strong not the government of the country where they are located
Could you please point me to the Registry or Registrar association in the US that opposed domain name seizures? I would be much obliged.
i2c does quite a bit of that sort of that. Many registrars and hosting providers in that one.
I don't see anything on domain name seizures on their website despite their self-described genesis post-SOPA: https://www.google.co.in/search?num=30&q=domain+name+seizures+site%3Ai2coali... Nor outside of their website: https://www.google.co.in/search?num=30&q="i2coalition"+"domain+name+seizures" https://www.google.co.in/search?num=30&q="i2coalition"+"domain+seizures"
theDNA.org should probably take up that sort of thing, but they are fairly nascent.
https://www.google.co.in/search?num=30&q=seizures+site%3Athedna.org -- Pranesh Prakash Policy Director, Centre for Internet and Society http://cis-india.org | tel:+91 80 40926283 sip:pranesh@ostel.co | xmpp:pranesh@cis-india.org https://twitter.com/pranesh
Pranesh I don’t think we (i2c) have dealt specifically with domain name seizures in the last couple of years. We have been dealing with quite a few other things. See: https://www.i2coalition.com/issues/ Domain name seizures specifically aren’t on that list, as they could, arguably, end up being covered by any one of several other topics. Regards Michele -- Mr Michele Neylon Blacknight Solutions Hosting, Colocation & Domains http://www.blacknight.host/ http://blog.blacknight.com/ http://ceo.hosting/ Intl. +353 (0) 59 9183072 Direct Dial: +353 (0)59 9183090 ------------------------------- Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty Road,Graiguecullen,Carlow,Ireland Company No.: 370845
Dear Pranesh, thanks for your kind reply. My comments are inline: On 26/04/2016 14:54, Pranesh Prakash wrote:
Olivier MJ Crepin-Leblond <ocl@gih.com> [2016-04-08 01:24:44 +0200]:
On 08/04/2016 00:57, Michele Neylon - Blacknight wrote:
The issue around domain seizures has nothing to do with ICANN. Any domain seizure cases I’ve seen (including the examples cited by Parminder) were all made either at the registrar or registry level. I haven’t see any cases where ICANN has been involved directly (though they often get named in cases)
You're absolutely correct. And the only "seizures" that were requested, were those of Top Level Domains: http://www.bbc.com/news/technology-28582478 There are many other sources that describe the case in detail. The judge sided with ICANN in saying that "they are not property subject to attachment under District of Columbia Law".
And dear Olivier, you are absolutely incorrect.
U.S. authorities have seized thousands of websites (once accidentally seizing 84,000!): https://torrentfreak.com/feds-seize-130-domain-names-in-mass-crackdown-11112...
https://torrentfreak.com/u-s-government-seizes-bittorrent-search-engine-doma...
http://www.theregister.co.uk/2011/02/18/fed_domain_seizure_slammed/ https://www.europol.europa.eu/content/690-internet-domain-names-seized-becau...
When it comes to domain seizures that directly involve ICANN, I am absolutely correct that these have been about Top Level Domains only and the rest of my paragraph is a quote from the BBC relaying what the judge said.
The majority of the world's registries and registrars are headquartered in the US: * 3 in 5 registrars are from the United States of America (624 out of 1010, as of March 2014, according to ICANN's accredited registrars list), with only 0.6% being from the 54 countries in Africa (7 out of 1010). * 45% of all the registries are from the United States of America! (307 out of 672 registries listed in ICANN’s registry directory in August 2015.)
http://cis-india.org/internet-governance/blog/global-multistakeholder-commun...
I am not disputing this, Pranesh. But this widens the debate. What is the reason that the majority of the world's registries and registrars are headquartered in the US? Is this caused by ICANN being headquartered in the US?
So, yes, every country has the ability to exert power over registries and registrars, but some have more powers than others.
In this case, it is actually a good thing that the case had to go in front of a US court since jurisprudence already existed.
That is incorrect, since many would see the jurisprudence on a domain name as inapplicable to a TLD.
And even if you don't, the reality is that the US is not one singular legal entity. There is a wide divergence of opinions within US courts as to whether domain names are property or not, and very little as to whether TLDs are properties are not. A helpful footnote in one of A. Michael Froomkin's articles provides this bibliography:
Anupam Chander, The New, New Property, 81 TEX. L. REV. 715, 776-781 (2003) (“Understanding domain names as property accords with how they are treated in practice.”); Juliet M. Moringiello, What Virtual Worlds Can Do for Property Law, 62 FLA. L. REV. 159, 179 (2010) (discussing the Virginia Supreme Court’s conclusion in Network Solutions, Inc. v. Umbro Int’l, Inc., 529 S.E.2d 80, 86 (Va. 2000) that a domain name represents a service contract, not property subject to garnishment); Xuan-Thao N. Nguyen, Commercial Law Collides with Cyberspace: The Trouble with Perfection – Insecurity Interests in the New Corporate Asset, 59 WASH. & LEE L. REV. 37, 65 (2002) (“The classification of domain names as either property or contracts is an issue of first impression with which courts have struggled.”); XuanThao N. Nguyen, Cyberproperty and Judicial Dissonance: The Trouble with Domain Name Classification, 10 GEO. MASON L. REV. 183, 186 (2001) (recognizing domain names as intangible property).
I am not going to defend the US justice system and its potential randomness in case resolution depending on the persons sitting in court. As a European, of course I'd favour predictable legislation instead of relying on expensive court cases that might swing either way. But blaming ICANN for the fact that the majority of the Domain Name industry is located in the US is unfair. This is a free market world and the new gTLD process could have brought a myriad of applications from outside the US. But it did not. Is this really ICANN's fault? Kindest regards, Olivier
Olivier MJ Crepin-Leblond <ocl@gih.com> [2016-04-26 16:06:16 +0200]:
relying on expensive court cases that might swing either way. But blaming ICANN for the fact that the majority of the Domain Name industry is located in the US is unfair. This is a free market world and the new gTLD process could have brought a myriad of applications from outside the US. But it did not. Is this really ICANN's fault?
In part, yes. Please look at the comments that CIS and other submitted to this: https://www.icann.org/public-comments/dns-underserved-2014-05-14-en Some requirements imposed by ICANN have no relevance in a country like India or Egypt. Where must arbitration under registry contracts with ICANN happen? Los Angeles County. Which is the exclusive venue for contractual litigation against ICANN by registries? . Los Angeles County. Surely you're not arguing that it is "natural" that U.S. companies continue to dominate in this area and that ICANN policy has nothing to do with it? Do you think the .com contract will ever be opened up for competitive bidding? -- Pranesh Prakash Policy Director, Centre for Internet and Society http://cis-india.org | tel:+91 80 40926283 sip:pranesh@ostel.co | xmpp:pranesh@cis-india.org https://twitter.com/pranesh
On 26/04/2016, 20:19, "Pranesh Prakash" <pranesh@cis-india.org> wrote:
In part, yes. Please look at the comments that CIS and other submitted to this: https://www.icann.org/public-comments/dns-underserved-2014-05-14-en
Which bits specifically?
Some requirements imposed by ICANN have no relevance in a country like India or Egypt.
Then don’t use a gTLD domain name.
Where must arbitration under registry contracts with ICANN happen? Los Angeles County.
Unless you are a registry that has signed a contract with ICANN why does that matter?
Which is the exclusive venue for contractual litigation against ICANN by registries? . Los Angeles County.
Surely you're not arguing that it is "natural" that U.S. companies continue to dominate in this area and that ICANN policy has nothing to do with it? Do you think the .com contract will ever be opened up for competitive bidding?
-- Pranesh Prakash Policy Director, Centre for Internet and Society http://cis-india.org | tel:+91 80 40926283 sip:pranesh@ostel.co | xmpp:pranesh@cis-india.org https://twitter.com/pranesh
Michele Neylon - Blacknight <michele@blacknight.com> [2016-04-26 19:31:17 +0000]:
On 26/04/2016, 20:19, "Pranesh Prakash" <pranesh@cis-india.org> wrote:
In part, yes. Please look at the comments that CIS and other submitted to this: https://www.icann.org/public-comments/dns-underserved-2014-05-14-en
Which bits specifically?
Those specific bits that make the case the ICANN policy is hindering growth of registries and registrars in "underserved" regions.
Some requirements imposed by ICANN have no relevance in a country like India or Egypt.
Then don’t use a gTLD domain name.
Does this discussion sound like a flippant joke, Michele? If so, my apologies, but I'm not laughing.
Where must arbitration under registry contracts with ICANN happen? Los Angeles County.
Unless you are a registry that has signed a contract with ICANN why does that matter?
I'm saying it matters for registries that have signed a contract with ICANN, or are considering doing so. -- Pranesh Prakash Policy Director, Centre for Internet and Society http://cis-india.org | tel:+91 80 40926283 sip:pranesh@ostel.co | xmpp:pranesh@cis-india.org https://twitter.com/pranesh
Which bits specifically?
Those specific bits that make the case the ICANN policy is hindering growth of registries and registrars in "underserved" regions.
What exactly is an “underserved” region? Which countries qualify according to your criteria? What is the actual issue that you feel that ICANN policy needs to address? I’ve read the comments previously and was involved in a lot of the discussions, but the actual definition of “underserved” was never addressed properly by anyone. There are also plenty of thoughtful comments from people who would consider that the very concept of “underserved” is a total red herring. There are very few places where you cannot get a domain name from a registrar or one of their resellers / agents.
Some requirements imposed by ICANN have no relevance in a country like India or Egypt.
Then don’t use a gTLD domain name.
Does this discussion sound like a flippant joke, Michele? If so, my apologies, but I'm not laughing.
If you want to use domains that are available globally then you need to accept that there are global rules. Simply stating that you consider something (which you haven’t actually specified) as not being of relevance in a specific country does not mean anything.
Where must arbitration under registry contracts with ICANN happen? Los Angeles County.
Unless you are a registry that has signed a contract with ICANN why does that matter?
I'm saying it matters for registries that have signed a contract with ICANN, or are considering doing so.
If you were signing a contract with my company I’d expect it to be under Irish law. There has been *some* discussion in the past of there being multiple jurisdictions available etc., etc., but that creates a whole other set of issues, as you’d end up with people venue shopping. At least now we’re all bound by the same set of rules. Regards Michele
On April 27, 2016 at 00:49 pranesh@cis-india.org (Pranesh Prakash) wrote:
Olivier MJ Crepin-Leblond <ocl@gih.com> [2016-04-26 16:06:16 +0200]:
relying on expensive court cases that might swing either way. But blaming ICANN for the fact that the majority of the Domain Name industry is located in the US is unfair. This is a free market world and the new gTLD process could have brought a myriad of applications from outside the US. But it did not. Is this really ICANN's fault?
One could imagine other business structures which are designed to be more internationalized. ICANN has opened engagement and satellite offices in Singapore, Istanbul, Beijing, etc. And rotates their main conference around the globe. Granted none of that suggests a specific solution but the issue of i18n certainly flows in the blood of ICANN. For example new gTLDs applicants could have been required to demonstrate an int'l (multiple) legal presence or partnering. That only seems ridiculous on the surface because the whole gTLD program was more or less aimed at relatively low rent applicants though several notable exceptions arose (Amazon, Google, investment groups such as Donuts, M&M) who could have met such criteria. And more outreach to potential applicants in nations which one assumes had a dearth of applications due to the costs involved. Yes that seems to contradict the previous paragraph but emphasis on "outreach", special programs. IMHO the new gTLD program was mostly designed of, by, and for the sort of people and organizations who could raise a few hundred thousand dollars and no more. Enough to keep out the riff-raff, but not so much as to exclude those at the table.
In part, yes. Please look at the comments that CIS and other submitted to this: https://www.icann.org/public-comments/dns-underserved-2014-05-14-en
Some requirements imposed by ICANN have no relevance in a country like India or Egypt.
Where must arbitration under registry contracts with ICANN happen? Los Angeles County. Which is the exclusive venue for contractual litigation against ICANN by registries? . Los Angeles County.
Surely you're not arguing that it is "natural" that U.S. companies continue to dominate in this area and that ICANN policy has nothing to do with it? Do you think the .com contract will ever be opened up for competitive bidding?
Those points also.
-- Pranesh Prakash Policy Director, Centre for Internet and Society http://cis-india.org | tel:+91 80 40926283 sip:pranesh@ostel.co | xmpp:pranesh@cis-india.org https://twitter.com/pranesh
-- -Barry Shein Software Tool & Die | bzs@TheWorld.com | http://www.TheWorld.com Purveyors to the Trade | Voice: +1 617-STD-WRLD | 800-THE-WRLD The World: Since 1989 | A Public Information Utility | *oo*
On Friday 08 April 2016 04:27 AM, Michele Neylon - Blacknight wrote:
snip
Yes and they do, however if the registry operator is a US based entity then a US court can issue a court order to have the domains seized directly at the registry. It’s happened to clients of ours.
And for a gTLD, the registry is ICANN.... A similar order will be directed to ICANN is a gLTD has to be siezed.
I do not deny there is an uneven playing field because ICANN is more easily subject to US jurisdiction and law than the jurisdictions and laws of other countries, but your arguments may go too far.
The issue around domain seizures has nothing to do with ICANN. Any domain seizure cases I’ve seen (including the examples cited by Parminder) were all made either at the registrar or registry level. I haven’t see any cases where ICANN has been involved directly (though they often get named in cases)
Because there havent been closed business specific gTLD till now, an option that has been opened now.... Can you tell me, if a court finds a foreign gTLD not to its taste or the concerned business offending the US law what would it do, as it has been doing earlier with US registered second level domain names.... Can you give me one reason or justification why a court will consider ICANN any different from how it has been considering US based registries in the past?
If you want to avoid the reach of the US then you need to use:
* a non-US registry * A non-US registrar * A non-US hosting provider
Obviously if you want to go down that route you won’t be able to use .com or a lot of the other gTLDs, as even the ones that aren’t US owned are often using US based providers for their backend services.
So, you too agree/ accept that a non US business wanting to avoid (illegitimate) extra- terrestrial application of US laws should not take up gTLDs..... That is depressing.... Why should non US businesses be denied an important global governance service? Does it mean nothing at all to you, to ALAC? BTW, to my friends in the US most vocal in this debate, may I ask a question, that I have asked earlier but with a response - can you with full honesty tell me, if India's laws were applicable on the global DNS system in the same way as the US are now, and, for instance, taking a gTLD would have exposed a US business to (illegitimate) extra-territorial application of Indian laws, *would you have accepted it?* Is there no fairness, equity and democracy left in the world.... And it of course pains me even more to see non US people here go along with this extreme unfairness and injustice. parminder
Regards
Michele
-- Mr Michele Neylon Blacknight Solutions Hosting, Colocation & Domains http://www.blacknight.host/ http://blog.blacknight.com/ http://ceo.hosting/ Intl. +353 (0) 59 9183072 ------------------------------- Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty Road,Graiguecullen,Carlow,Ireland Company No.: 370845
Parminder, You say: "And for a gTLD, the registry is ICANN.... A similar order will be directed to ICANN is a gLTD has to be siezed." No. ICANN is not a registry. This is a deep misunderstanding. No reasoning based on this statement will lead to any valid conclusion (unless the logic in the reasoning is as flawed as the statement.) Alejandro Pisanty <message tail snipped>
On Saturday 09 April 2016 10:18 AM, Dr. Alejandro Pisanty Baruch wrote:
Parminder, You say:
"And for a gTLD, the registry is ICANN.... A similar order will be directed to ICANN is a gLTD has to be siezed."
No. ICANN is not a registry.
Dear Alejandro US courts are not a subject of ICANN, it is the other way around.... So courts are not going to observe the intricate niceties of ICANN's internal lingo..... gTLDs are directly controlled by ICANN, it can include and remove one from the operative list of gTLDs.... There is no other way to remove a gTLD... That alone counts, and the court will direct ICANN accordingly.... Just forget the ICANN jargon. Please respond to substantive points and issues. You havent responded to my substantive points, and are taking the cover of a jargon about which I care as little as a US court will.. The substantive point it; is to proceed from an existing case, rojadirecta had taken a gTLD, it were .rojadirecta (or for wikipedia's case .wikipedia), and the same case had come to the same US court, where would its order to take down the web presence of the respective businesses be directed? Would you care to respond to this point? Thanks. parminder
This is a deep misunderstanding. No reasoning based on this statement will lead to any valid conclusion (unless the logic in the reasoning is as flawed as the statement.)
Alejandro Pisanty
<message tail snipped>
Parminder, you have not made any substantive points. You may have formulated some mildly interesting hypotheses but as we have seen, they have as foundations substantive - very substantive - misunderstandings. To your question: the web presence is not the gTLD and a gTLD does not necessarily entail a Web presence for any names registered under it (there are 65,534 ports that are not # 80.) And any action about the hypothetical gTLD would be directed to the company running the registry. Do not forget to answer my substantive question on "quousque tandem [...] abutere patientia nostra." Alejandro Pisanty - - - - - - - - - - - - - - - - - - - - - - - - - - - Dr. Alejandro Pisanty Facultad de Química UNAM Av. Universidad 3000, 04510 Mexico DF Mexico +52-1-5541444475 FROM ABROAD +525541444475 DESDE MÉXICO SMS +525541444475 Blog: http://pisanty.blogspot.com LinkedIn: http://www.linkedin.com/in/pisanty Unete al grupo UNAM en LinkedIn, http://www.linkedin.com/e/gis/22285/4A106C0C8614 Twitter: http://twitter.com/apisanty ---->> Unete a ISOC Mexico, http://www.isoc.org . . . . . . . . . . . . . . . . ________________________________ Desde: parminder [parminder@itforchange.net] Enviado el: sábado, 09 de abril de 2016 00:01 Hasta: Dr. Alejandro Pisanty Baruch; Michele Neylon - Blacknight; Seth M Reiss; 'McTim' CC: 'At-Large Worldwide' Asunto: Re: [At-Large] R: R: Is ICANN's oversight really moving away from the US government? On Saturday 09 April 2016 10:18 AM, Dr. Alejandro Pisanty Baruch wrote: Parminder, You say: "And for a gTLD, the registry is ICANN.... A similar order will be directed to ICANN is a gLTD has to be siezed." No. ICANN is not a registry. Dear Alejandro US courts are not a subject of ICANN, it is the other way around.... So courts are not going to observe the intricate niceties of ICANN's internal lingo..... gTLDs are directly controlled by ICANN, it can include and remove one from the operative list of gTLDs.... There is no other way to remove a gTLD... That alone counts, and the court will direct ICANN accordingly.... Just forget the ICANN jargon. Please respond to substantive points and issues. You havent responded to my substantive points, and are taking the cover of a jargon about which I care as little as a US court will.. The substantive point it; is to proceed from an existing case, rojadirecta had taken a gTLD, it were .rojadirecta (or for wikipedia's case .wikipedia), and the same case had come to the same US court, where would its order to take down the web presence of the respective businesses be directed? Would you care to respond to this point? Thanks. parminder This is a deep misunderstanding. No reasoning based on this statement will lead to any valid conclusion (unless the logic in the reasoning is as flawed as the statement.) Alejandro Pisanty <message tail snipped>
On Saturday 09 April 2016 11:33 AM, Dr. Alejandro Pisanty Baruch wrote:
Parminder,
you have not made any substantive points. You may have formulated some mildly interesting hypotheses but as we have seen, they have as foundations substantive - very substantive - misunderstandings.
that is your view... you are entitled to it. But I see you refusing to respond to the clear questions that I raise, and take cover behind technical jargon, as also below... Does not cut ice with me, or most of others here I suppose.
To your question: the web presence is not the gTLD and a gTLD does not necessarily entail a Web presence for any names registered under it (there are 65,534 ports that are not # 80.) And any action about the hypothetical gTLD would be directed to the company running the registry.
I have answered that question to Seun, the registry in case of closed gTLDs that businesses take up for there own use is that business itself and no point directing them to close their own gTLD.
Do not forget to answer my substantive question on "quousque tandem [...] abutere patientia nostra."
Sorry, I do not understand the language you write it. I can answer questions addressed to me in English p
Alejandro Pisanty
- - - - - - - - - - - - - - - - - - - - - - - - - - - Dr. Alejandro Pisanty Facultad de Química UNAM Av. Universidad 3000, 04510 Mexico DF Mexico
+52-1-5541444475 FROM ABROAD
+525541444475 DESDE MÉXICO SMS +525541444475 Blog: http://pisanty.blogspot.com LinkedIn: http://www.linkedin.com/in/pisanty Unete al grupo UNAM en LinkedIn, http://www.linkedin.com/e/gis/22285/4A106C0C8614 Twitter: http://twitter.com/apisanty ---->> Unete a ISOC Mexico, http://www.isoc.org . . . . . . . . . . . . . . . .
------------------------------------------------------------------------ *Desde:* parminder [parminder@itforchange.net] *Enviado el:* sábado, 09 de abril de 2016 00:01 *Hasta:* Dr. Alejandro Pisanty Baruch; Michele Neylon - Blacknight; Seth M Reiss; 'McTim' *CC:* 'At-Large Worldwide' *Asunto:* Re: [At-Large] R: R: Is ICANN's oversight really moving away from the US government?
On Saturday 09 April 2016 10:18 AM, Dr. Alejandro Pisanty Baruch wrote:
Parminder, You say:
"And for a gTLD, the registry is ICANN.... A similar order will be directed to ICANN is a gLTD has to be siezed."
No. ICANN is not a registry.
Dear Alejandro
US courts are not a subject of ICANN, it is the other way around.... So courts are not going to observe the intricate niceties of ICANN's internal lingo..... gTLDs are directly controlled by ICANN, it can include and remove one from the operative list of gTLDs.... There is no other way to remove a gTLD... That alone counts, and the court will direct ICANN accordingly.... Just forget the ICANN jargon. Please respond to substantive points and issues.
You havent responded to my substantive points, and are taking the cover of a jargon about which I care as little as a US court will.. The substantive point it; is to proceed from an existing case, rojadirecta had taken a gTLD, it were .rojadirecta (or for wikipedia's case .wikipedia), and the same case had come to the same US court, where would its order to take down the web presence of the respective businesses be directed? Would you care to respond to this point? Thanks.
parminder
This is a deep misunderstanding. No reasoning based on this statement will lead to any valid conclusion (unless the logic in the reasoning is as flawed as the statement.)
Alejandro Pisanty
<message tail snipped>
Parminder, any governance requires a modicum of understanding of the subject of governance. Any substantive questions you have made have been answered. I can't contribute any more to your satisfaction. Alejandro Pisanty - - - - - - - - - - - - - - - - - - - - - - - - - - - Dr. Alejandro Pisanty Facultad de Química UNAM Av. Universidad 3000, 04510 Mexico DF Mexico +52-1-5541444475 FROM ABROAD +525541444475 DESDE MÉXICO SMS +525541444475 Blog: http://pisanty.blogspot.com LinkedIn: http://www.linkedin.com/in/pisanty Unete al grupo UNAM en LinkedIn, http://www.linkedin.com/e/gis/22285/4A106C0C8614 Twitter: http://twitter.com/apisanty ---->> Unete a ISOC Mexico, http://www.isoc.org . . . . . . . . . . . . . . . . ________________________________ Desde: parminder [parminder@itforchange.net] Enviado el: sábado, 09 de abril de 2016 01:13 Hasta: Dr. Alejandro Pisanty Baruch; Michele Neylon - Blacknight; Seth M Reiss; 'McTim' CC: 'At-Large Worldwide' Asunto: Re: [At-Large] R: R: Is ICANN's oversight really moving away from the US government? On Saturday 09 April 2016 11:33 AM, Dr. Alejandro Pisanty Baruch wrote: Parminder, you have not made any substantive points. You may have formulated some mildly interesting hypotheses but as we have seen, they have as foundations substantive - very substantive - misunderstandings. that is your view... you are entitled to it. But I see you refusing to respond to the clear questions that I raise, and take cover behind technical jargon, as also below... Does not cut ice with me, or most of others here I suppose. To your question: the web presence is not the gTLD and a gTLD does not necessarily entail a Web presence for any names registered under it (there are 65,534 ports that are not # 80.) And any action about the hypothetical gTLD would be directed to the company running the registry. I have answered that question to Seun, the registry in case of closed gTLDs that businesses take up for there own use is that business itself and no point directing them to close their own gTLD. Do not forget to answer my substantive question on "quousque tandem [...] abutere patientia nostra." Sorry, I do not understand the language you write it. I can answer questions addressed to me in English p Alejandro Pisanty - - - - - - - - - - - - - - - - - - - - - - - - - - - Dr. Alejandro Pisanty Facultad de Química UNAM Av. Universidad 3000, 04510 Mexico DF Mexico +52-1-5541444475 FROM ABROAD +525541444475 DESDE MÉXICO SMS +525541444475 Blog: http://pisanty.blogspot.com LinkedIn: http://www.linkedin.com/in/pisanty Unete al grupo UNAM en LinkedIn, http://www.linkedin.com/e/gis/22285/4A106C0C8614 Twitter: http://twitter.com/apisanty ---->> Unete a ISOC Mexico, http://www.isoc.org . . . . . . . . . . . . . . . . ________________________________ Desde: parminder [parminder@itforchange.net<mailto:parminder@itforchange.net>] Enviado el: sábado, 09 de abril de 2016 00:01 Hasta: Dr. Alejandro Pisanty Baruch; Michele Neylon - Blacknight; Seth M Reiss; 'McTim' CC: 'At-Large Worldwide' Asunto: Re: [At-Large] R: R: Is ICANN's oversight really moving away from the US government? On Saturday 09 April 2016 10:18 AM, Dr. Alejandro Pisanty Baruch wrote: Parminder, You say: "And for a gTLD, the registry is ICANN.... A similar order will be directed to ICANN is a gLTD has to be siezed." No. ICANN is not a registry. Dear Alejandro US courts are not a subject of ICANN, it is the other way around.... So courts are not going to observe the intricate niceties of ICANN's internal lingo..... gTLDs are directly controlled by ICANN, it can include and remove one from the operative list of gTLDs.... There is no other way to remove a gTLD... That alone counts, and the court will direct ICANN accordingly.... Just forget the ICANN jargon. Please respond to substantive points and issues. You havent responded to my substantive points, and are taking the cover of a jargon about which I care as little as a US court will.. The substantive point it; is to proceed from an existing case, rojadirecta had taken a gTLD, it were .rojadirecta (or for wikipedia's case .wikipedia), and the same case had come to the same US court, where would its order to take down the web presence of the respective businesses be directed? Would you care to respond to this point? Thanks. parminder This is a deep misunderstanding. No reasoning based on this statement will lead to any valid conclusion (unless the logic in the reasoning is as flawed as the statement.) Alejandro Pisanty <message tail snipped>
Dear Parminder, let me try and help here too: On 09/04/2016 07:01, parminder wrote:
US courts are not a subject of ICANN, it is the other way around.... So courts are not going to observe the intricate niceties of ICANN's internal lingo..... gTLDs are directly controlled by ICANN, it can include and remove one from the operative list of gTLDs.... There is no other way to remove a gTLD... That alone counts, and the court will direct ICANN accordingly.... Just forget the ICANN jargon. Please respond to substantive points and issues.
So what you are saying is that ICANN has sole ability to add or remove TLDs from the Root, so US courts could ask ICANN to remove TLDs from the Root. But Parminder, we are always talking about 2nd level - ie. the names *under* the top level domain. What you are effectively saying is that a request could be made by a US court to remove a top level domain from the Root --- WHY? This is throwing the baby out with the bathwater. This is like asking for the Indian Top Level Domain .IN to be removed from the root because a sub-domain under .IN is used for criminal activity. What I mentioned in my previous message is that there is jurisprudence already in the US for this, so this kind of request has very little chance of ever succeeding.
You havent responded to my substantive points, and are taking the cover of a jargon about which I care as little as a US court will.. The substantive point it; is to proceed from an existing case, rojadirecta had taken a gTLD, it were .rojadirecta (or for wikipedia's case .wikipedia), and the same case had come to the same US court, where would its order to take down the web presence of the respective businesses be directed? Would you care to respond to this point? Thanks.
So here again, you are speaking about Top Level Domains. If I understand you correctly, you take the example of Rojadirecta having applied successfully for top level domain Rojadirecta - and what you are saying is that there could be a request through a US court for this top level domain to be removed from the Root. Using your words, that would "take down the web presence of the respective businesses" -- all of the domain names under .rojadirecta would be affected. Well, you're right. Perhaps that's why Rojadirecta prefers operating under a variety of top level domains that are not run by a US Registry rather than running its own Top Level Domain. Kindest regards, Olivier
Olivier You are running in circles around the main case that I am presenting but *not* addressing it in the exact form I present it, which, I repeat, is as follows... *Rojoadirecta takes a closed gTLD only for its own business, and so there is no other agency that loses anything in closing down of .rojadirecta, only rojadirecta loses which is supposed to be the intention of the court order.* I am putting the above under emphasis so that you get it and get nothing else, and try to respond only to this situation - which is an important representative one. The situation being, we move a few years back, enforcement agencies have the same problem with rojadirecta that they had a few years back, but this time verisign as controller of .com is unable to be of any help, bec .rojadirecta is a gtld and its own registry... Only ICANN can remove .rojadirecta, and it can do so without doing any damage at all to anything or anyone else, other than rojadirecta, which is the very intention of the enforcement action (of a court or another US agency) I can clearly see that the order, court or otherwise, but especially of a court, will in such a situation go now to ICANN - bec for a US court/agency ICANN is not in any way different from verisign - and that ICANN MUST comply with the order, on the pain of further coercive action. Do you or anyone else have a case that no, this wont happen.... If so, please be explicit, and justify your reasoning. That will be the right response to what I am arguing. But I see from your email below that you are inclined to say that if rojadirecta is indeed afraid of being on the wrong side of US law, now or any time in future, in doing a business that has nothing directly to do with the US, it should simply not take a gTLD.... I just want to hear it again, is this what you are saying.... If so, it is both surprising and very disappointing that a leader of ALAC, the supposed civil society space working with ICANN, is saying such a thing.... That a central domain name service can/ should be denied to non US entities, unless they are ready to act as per US law and fully so, even if they are acting entirely outside of the US..... Is this justice and fairness? How are people here in ALAC opening advocating it? How can we allow DNS to become a tool of making all of the world subject to US laws, in all areas of social activity, bec a gTLD can be in any area of social activity, governance, health, education, anything and everything..... Anyone aspiring to a gLTD in any of these social areas must make sure that it, now and for ever, observe US law, even if it plans never to have anything to do with the US..... Are we here at ALAC really advocating, or by default, working towards such a world? parminder On Sunday 10 April 2016 01:18 AM, Olivier MJ Crepin-Leblond wrote:
Dear Parminder,
let me try and help here too:
On 09/04/2016 07:01, parminder wrote:
US courts are not a subject of ICANN, it is the other way around.... So courts are not going to observe the intricate niceties of ICANN's internal lingo..... gTLDs are directly controlled by ICANN, it can include and remove one from the operative list of gTLDs.... There is no other way to remove a gTLD... That alone counts, and the court will direct ICANN accordingly.... Just forget the ICANN jargon. Please respond to substantive points and issues. So what you are saying is that ICANN has sole ability to add or remove TLDs from the Root, so US courts could ask ICANN to remove TLDs from the Root. But Parminder, we are always talking about 2nd level - ie. the names *under* the top level domain. What you are effectively saying is that a request could be made by a US court to remove a top level domain from the Root --- WHY? This is throwing the baby out with the bathwater. This is like asking for the Indian Top Level Domain .IN to be removed from the root because a sub-domain under .IN is used for criminal activity. What I mentioned in my previous message is that there is jurisprudence already in the US for this, so this kind of request has very little chance of ever succeeding.
You havent responded to my substantive points, and are taking the cover of a jargon about which I care as little as a US court will.. The substantive point it; is to proceed from an existing case, rojadirecta had taken a gTLD, it were .rojadirecta (or for wikipedia's case .wikipedia), and the same case had come to the same US court, where would its order to take down the web presence of the respective businesses be directed? Would you care to respond to this point? Thanks. So here again, you are speaking about Top Level Domains. If I understand you correctly, you take the example of Rojadirecta having applied successfully for top level domain Rojadirecta - and what you are saying is that there could be a request through a US court for this top level domain to be removed from the Root. Using your words, that would "take down the web presence of the respective businesses" -- all of the domain names under .rojadirecta would be affected. Well, you're right. Perhaps that's why Rojadirecta prefers operating under a variety of top level domains that are not run by a US Registry rather than running its own Top Level Domain.
Kindest regards,
Olivier
If you want a way around U.S. 'laws', forget about this discussion and simply follow the current example set by the globalists: purchase a U.S. politician and/or befriend Hillary Clinton. Only poor people and people who make money honestly are required to follow the 'poor laws' of the U.S.. The corrupt wealthy, like the fraudsters at wells fargo who can admit a billion dollars in mortgage fraud, get zero jail time, a government of by and for the criminal elite. Ron
Having read, or re-read, the 67 messages which make up this thread so far, I would like to offer a few remarks and make a suggestion. REMARKS: - Throughout this thread, some terms have been used loosely, e.g. "international", "international organization", "treaty organization", etc. Current international law requires that we respect the definition of each of these terms. In particular, "international organization" refers to a body set up by a treaty to which member states are parties, and which their respective parliaments have ratified. In this sense, ICANN is not an international organization, although its work may have global effects. It should be clear that the membership of a Treaty Organization is limited to sovereign states, or multilateral bodies themselves set up by those sovereign states (e.g. the European Union). Therefore, if ICANN were to be transformed into an "international organization", it would be governed by the collective will of its members, i.e. sovereign states. This governing power would/could not be shared with any other category of membership. - The claim, made at the beginning of this whole thread, that ICANN should and could come under some "international jurisdiction" might seem interesting, but cannot overcome the fact that, in the current acceptance of international law, there is no intermediate status between that of a Treaty Organization on the one hand, and on the other hand an entity which, in spite of its worldwide significance, does not have international status as granted by sovereign states. - Like any other human construct, international law has evolved over time: at this stage, only sovereign states have the power to create, modify or terminate an international organization. The reasons invoked so far on this thread for giving ICANN a different legal status include: reinforcing the public interest component, strengthening accountability, heeding the needs of the global Internet user community, reinforcing the international nature and perspective of ICANN. - The status of International Organization may not be available for ICANN: in addition, many within our communities have argued that it is also not desirable. This was largely debated in the CWG and in the CCWG. As for the Proposal sent by the ICG to the NTIA on 10 March 2016, it was bound by the criteria set out by the NTIA, including that the proposed transfer of oversight of the IANA Functions would not be exercised by any government, group of governments, or Treaty Organization. SUGGESTION: - ICANN and the United States of America entered into an agreement, first the Joint Project Agreement (JPA) and later the Affirmation of Commitments (AoC), by which both parties undertook to respect a series of principles and procedures. - The mechanism set up for the AoC could be widened to all parties interested in an improved ICANN. An International Affirmation of Commitments (IAC) could be drafted by the ICANN Board and opened to a range of signatories: sovereign states, enterprises, NGOs, associations, international organizations (e.g. the European Union, the Association of American States, UNESCO, etc.). - I first aired this idea when serving on the ICANN Board (2007-10). Things were not ripe then. Are they now? Best regards, Jean-Jacques. ----- Mail original ----- De: "parminder" <parminder@itforchange.net> À: "Olivier MJ Crepin-Leblond" <ocl@gih.com> Cc: "At-Large Worldwide" <at-large@atlarge-lists.icann.org> Envoyé: Dimanche 10 Avril 2016 11:11:04 Objet: Re: [At-Large] R: R: Is ICANN's oversight really moving away from the US government? Olivier You are running in circles around the main case that I am presenting but *not* addressing it in the exact form I present it, which, I repeat, is as follows... *Rojoadirecta takes a closed gTLD only for its own business, and so there is no other agency that loses anything in closing down of .rojadirecta, only rojadirecta loses which is supposed to be the intention of the court order.* I am putting the above under emphasis so that you get it and get nothing else, and try to respond only to this situation - which is an important representative one. The situation being, we move a few years back, enforcement agencies have the same problem with rojadirecta that they had a few years back, but this time verisign as controller of .com is unable to be of any help, bec .rojadirecta is a gtld and its own registry... Only ICANN can remove .rojadirecta, and it can do so without doing any damage at all to anything or anyone else, other than rojadirecta, which is the very intention of the enforcement action (of a court or another US agency) I can clearly see that the order, court or otherwise, but especially of a court, will in such a situation go now to ICANN - bec for a US court/agency ICANN is not in any way different from verisign - and that ICANN MUST comply with the order, on the pain of further coercive action. Do you or anyone else have a case that no, this wont happen.... If so, please be explicit, and justify your reasoning. That will be the right response to what I am arguing. But I see from your email below that you are inclined to say that if rojadirecta is indeed afraid of being on the wrong side of US law, now or any time in future, in doing a business that has nothing directly to do with the US, it should simply not take a gTLD.... I just want to hear it again, is this what you are saying.... If so, it is both surprising and very disappointing that a leader of ALAC, the supposed civil society space working with ICANN, is saying such a thing.... That a central domain name service can/ should be denied to non US entities, unless they are ready to act as per US law and fully so, even if they are acting entirely outside of the US..... Is this justice and fairness? How are people here in ALAC opening advocating it? How can we allow DNS to become a tool of making all of the world subject to US laws, in all areas of social activity, bec a gTLD can be in any area of social activity, governance, health, education, anything and everything..... Anyone aspiring to a gLTD in any of these social areas must make sure that it, now and for ever, observe US law, even if it plans never to have anything to do with the US..... Are we here at ALAC really advocating, or by default, working towards such a world? parminder On Sunday 10 April 2016 01:18 AM, Olivier MJ Crepin-Leblond wrote: Dear Parminder, let me try and help here too: On 09/04/2016 07:01, parminder wrote: US courts are not a subject of ICANN, it is the other way around.... So courts are not going to observe the intricate niceties of ICANN's internal lingo..... gTLDs are directly controlled by ICANN, it can include and remove one from the operative list of gTLDs.... There is no other way to remove a gTLD... That alone counts, and the court will direct ICANN accordingly.... Just forget the ICANN jargon. Please respond to substantive points and issues. So what you are saying is that ICANN has sole ability to add or remove TLDs from the Root, so US courts could ask ICANN to remove TLDs from the Root. But Parminder, we are always talking about 2nd level - ie. the names *under* the top level domain. What you are effectively saying is that a request could be made by a US court to remove a top level domain from the Root --- WHY? This is throwing the baby out with the bathwater. This is like asking for the Indian Top Level Domain .IN to be removed from the root because a sub-domain under .IN is used for criminal activity. What I mentioned in my previous message is that there is jurisprudence already in the US for this, so this kind of request has very little chance of ever succeeding. You havent responded to my substantive points, and are taking the cover of a jargon about which I care as little as a US court will.. The substantive point it; is to proceed from an existing case, rojadirecta had taken a gTLD, it were .rojadirecta (or for wikipedia's case .wikipedia), and the same case had come to the same US court, where would its order to take down the web presence of the respective businesses be directed? Would you care to respond to this point? Thanks. So here again, you are speaking about Top Level Domains. If I understand you correctly, you take the example of Rojadirecta having applied successfully for top level domain Rojadirecta - and what you are saying is that there could be a request through a US court for this top level domain to be removed from the Root. Using your words, that would "take down the web presence of the respective businesses" -- all of the domain names under .rojadirecta would be affected. Well, you're right. Perhaps that's why Rojadirecta prefers operating under a variety of top level domains that are not run by a US Registry rather than running its own Top Level Domain. Kindest regards, Olivier _______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large At-Large Official Site: http://atlarge.icann.org
Best idea I have heard yet. -----Original Message----- From: at-large-bounces@atlarge-lists.icann.org [mailto:at-large-bounces@atlarge-lists.icann.org] On Behalf Of Subrenat, Jean-Jacques Sent: Sunday, April 10, 2016 7:19 AM To: parminder Cc: At-Large Worldwide Subject: Re: [At-Large] R: R: Is ICANN's oversight really moving away from the US government? Having read, or re-read, the 67 messages which make up this thread so far, I would like to offer a few remarks and make a suggestion. REMARKS: - Throughout this thread, some terms have been used loosely, e.g. "international", "international organization", "treaty organization", etc. Current international law requires that we respect the definition of each of these terms. In particular, "international organization" refers to a body set up by a treaty to which member states are parties, and which their respective parliaments have ratified. In this sense, ICANN is not an international organization, although its work may have global effects. It should be clear that the membership of a Treaty Organization is limited to sovereign states, or multilateral bodies themselves set up by those sovereign states (e.g. the European Union). Therefore, if ICANN were to be transformed into an "international organization", it would be governed by the collective will of its members, i.e. sovereign states. This governing power would/could not be shared with any other category of membership. - The claim, made at the beginning of this whole thread, that ICANN should and could come under some "international jurisdiction" might seem interesting, but cannot overcome the fact that, in the current acceptance of international law, there is no intermediate status between that of a Treaty Organization on the one hand, and on the other hand an entity which, in spite of its worldwide significance, does not have international status as granted by sovereign states. - Like any other human construct, international law has evolved over time: at this stage, only sovereign states have the power to create, modify or terminate an international organization. The reasons invoked so far on this thread for giving ICANN a different legal status include: reinforcing the public interest component, strengthening accountability, heeding the needs of the global Internet user community, reinforcing the international nature and perspective of ICANN. - The status of International Organization may not be available for ICANN: in addition, many within our communities have argued that it is also not desirable. This was largely debated in the CWG and in the CCWG. As for the Proposal sent by the ICG to the NTIA on 10 March 2016, it was bound by the criteria set out by the NTIA, including that the proposed transfer of oversight of the IANA Functions would not be exercised by any government, group of governments, or Treaty Organization. SUGGESTION: - ICANN and the United States of America entered into an agreement, first the Joint Project Agreement (JPA) and later the Affirmation of Commitments (AoC), by which both parties undertook to respect a series of principles and procedures. - The mechanism set up for the AoC could be widened to all parties interested in an improved ICANN. An International Affirmation of Commitments (IAC) could be drafted by the ICANN Board and opened to a range of signatories: sovereign states, enterprises, NGOs, associations, international organizations (e.g. the European Union, the Association of American States, UNESCO, etc.). - I first aired this idea when serving on the ICANN Board (2007-10). Things were not ripe then. Are they now? Best regards, Jean-Jacques. ----- Mail original ----- De: "parminder" <parminder@itforchange.net> À: "Olivier MJ Crepin-Leblond" <ocl@gih.com> Cc: "At-Large Worldwide" <at-large@atlarge-lists.icann.org> Envoyé: Dimanche 10 Avril 2016 11:11:04 Objet: Re: [At-Large] R: R: Is ICANN's oversight really moving away from the US government? Olivier You are running in circles around the main case that I am presenting but *not* addressing it in the exact form I present it, which, I repeat, is as follows... *Rojoadirecta takes a closed gTLD only for its own business, and so there is no other agency that loses anything in closing down of .rojadirecta, only rojadirecta loses which is supposed to be the intention of the court order.* I am putting the above under emphasis so that you get it and get nothing else, and try to respond only to this situation - which is an important representative one. The situation being, we move a few years back, enforcement agencies have the same problem with rojadirecta that they had a few years back, but this time verisign as controller of .com is unable to be of any help, bec .rojadirecta is a gtld and its own registry... Only ICANN can remove .rojadirecta, and it can do so without doing any damage at all to anything or anyone else, other than rojadirecta, which is the very intention of the enforcement action (of a court or another US agency) I can clearly see that the order, court or otherwise, but especially of a court, will in such a situation go now to ICANN - bec for a US court/agency ICANN is not in any way different from verisign - and that ICANN MUST comply with the order, on the pain of further coercive action. Do you or anyone else have a case that no, this wont happen.... If so, please be explicit, and justify your reasoning. That will be the right response to what I am arguing. But I see from your email below that you are inclined to say that if rojadirecta is indeed afraid of being on the wrong side of US law, now or any time in future, in doing a business that has nothing directly to do with the US, it should simply not take a gTLD.... I just want to hear it again, is this what you are saying.... If so, it is both surprising and very disappointing that a leader of ALAC, the supposed civil society space working with ICANN, is saying such a thing.... That a central domain name service can/ should be denied to non US entities, unless they are ready to act as per US law and fully so, even if they are acting entirely outside of the US..... Is this justice and fairness? How are people here in ALAC opening advocating it? How can we allow DNS to become a tool of making all of the world subject to US laws, in all areas of social activity, bec a gTLD can be in any area of social activity, governance, health, education, anything and everything..... Anyone aspiring to a gLTD in any of these social areas must make sure that it, now and for ever, observe US law, even if it plans never to have anything to do with the US..... Are we here at ALAC really advocating, or by default, working towards such a world? parminder On Sunday 10 April 2016 01:18 AM, Olivier MJ Crepin-Leblond wrote: Dear Parminder, let me try and help here too: On 09/04/2016 07:01, parminder wrote: US courts are not a subject of ICANN, it is the other way around.... So courts are not going to observe the intricate niceties of ICANN's internal lingo..... gTLDs are directly controlled by ICANN, it can include and remove one from the operative list of gTLDs.... There is no other way to remove a gTLD... That alone counts, and the court will direct ICANN accordingly.... Just forget the ICANN jargon. Please respond to substantive points and issues. So what you are saying is that ICANN has sole ability to add or remove TLDs from the Root, so US courts could ask ICANN to remove TLDs from the Root. But Parminder, we are always talking about 2nd level - ie. the names *under* the top level domain. What you are effectively saying is that a request could be made by a US court to remove a top level domain from the Root --- WHY? This is throwing the baby out with the bathwater. This is like asking for the Indian Top Level Domain .IN to be removed from the root because a sub-domain under .IN is used for criminal activity. What I mentioned in my previous message is that there is jurisprudence already in the US for this, so this kind of request has very little chance of ever succeeding. You havent responded to my substantive points, and are taking the cover of a jargon about which I care as little as a US court will.. The substantive point it; is to proceed from an existing case, rojadirecta had taken a gTLD, it were .rojadirecta (or for wikipedia's case .wikipedia), and the same case had come to the same US court, where would its order to take down the web presence of the respective businesses be directed? Would you care to respond to this point? Thanks. So here again, you are speaking about Top Level Domains. If I understand you correctly, you take the example of Rojadirecta having applied successfully for top level domain Rojadirecta - and what you are saying is that there could be a request through a US court for this top level domain to be removed from the Root. Using your words, that would "take down the web presence of the respective businesses" -- all of the domain names under .rojadirecta would be affected. Well, you're right. Perhaps that's why Rojadirecta prefers operating under a variety of top level domains that are not run by a US Registry rather than running its own Top Level Domain. Kindest regards, Olivier _______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large At-Large Official Site: http://atlarge.icann.org _______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large At-Large Official Site: http://atlarge.icann.org ----- No virus found in this message. Checked by AVG - www.avg.com Version: 2015.0.6189 / Virus Database: 4545/12006 - Release Date: 04/10/16
On Sun, Apr 10, 2016 at 12:19 PM, Subrenat, Jean-Jacques <jjs@dyalog.net> wrote:
- The mechanism set up for the AoC could be widened to all parties interested in an improved ICANN. An International Affirmation of Commitments (IAC) could be drafted by the ICANN Board and opened to a range of signatories: sovereign states, enterprises, NGOs, associations, international organizations (e.g. the European Union, the Association of American States, UNESCO, etc.).
- I first aired this idea when serving on the ICANN Board (2007-10). Things were not ripe then. Are they now?
A little light comes! -Carlton ============================== Carlton A Samuels Mobile: 876-818-1799 *Strategy, Planning, Governance, Assessment & Turnaround* =============================
My external whistleblower process was the only thing required in this instance, not a 'court' of ICANN connected or industry related people, but three respected human rights organizations out of a pool of 50 respected human rights organizations, available to be alerted to corruption on a rotating basis chosen on the first of each month at random, if people and governments knew there was an external whistleblower process rather than relying on wikileaks to get the real story, there would be nothing to leak because there would be zero corruption. ICANN doesn't want real accountability, so they rejected my idea late last year and now you are trying to get an international juristiction of in crowders to replace the human rights organizations that would be completely independent. Ron
Hi, this idea (Affirmations of Commitments between ICANN and many other parties) was indeed around by 2006-2007. It was further fleshed out in the report of the Strategy Panel on ICANN's Role in the Internet Governance Ecosystem, https://www.icann.org/en/system/files/files/report-23feb14-en.pdf which was chaired by Vint Cerf and in which many of us, among which Carlton and myself, not only took part but formed part of the core drafting team. The idea of a web of Affirmations of Commitments picks up the "web of trust" concept on which we developed the present instantiation of the At Large in the 2003 ICANN reform, as well. It should be noted that Affirmations of Commitments (AoC) are not bilateral contracts in which two parts become bound to each other. They are simultaneous unilateral statements by two parties; of course they are agreed upon and coordinated, but they do not entail mutual responsibilities and obligations in a single document like contracts do. Establishing a workable set of AoC's entails a difficult task: they must all mean the same, yet as they take place with many different parties, there will be an explosive trend to make them different. As we know, for example, common-law and positive-law countries - and entities based in them - will have to ask for many different clauses. Language for a commitment by a country will necessarily have to include their national language; commercial entities and non-profits or governments will have a hugely varied set of requirements. So, to proceed along this way, the most promising avenue would likely be to establish a firm set of commitments that all parties must make and honor, then choose and segment a set of parties in order of combined importance for the process and ability to enter an AoC promptly. A kind of Coase Theorem suggests that smaller parties will prefer to come together among peers before entering the AoC's, in order to reduce transaction costs; so there is the risk of asymmetric negotiating power, in consequence., so that companies would rather be represented by consortia or trade associations and countries by regional intergovernmental organizations. The overhead to maintain the set of AoC's may engender a new layer of bureaucracy. Finding entities willing to sign may be of highly varying degrees of difficulty (in other words, a hard sell.) All of these factors can be prgmatically designed and explored, and even tested. If the ALAC got itself to agree - with the community - that this is a desirable way to go forward, a well-prepared design, with a solid risk analysis, would be the best way to start to convince others. And as others have said very well, there may be no appetite for further fiddling with organizational stuff for a long time till the IANA Transition is completed. That is also a testable proposition. Alejandro Pisanty - - - - - - - - - - - - - - - - - - - - - - - - - - - Dr. Alejandro Pisanty Facultad de Química UNAM Av. Universidad 3000, 04510 Mexico DF Mexico +52-1-5541444475 FROM ABROAD +525541444475 DESDE MÉXICO SMS +525541444475 Blog: http://pisanty.blogspot.com LinkedIn: http://www.linkedin.com/in/pisanty Unete al grupo UNAM en LinkedIn, http://www.linkedin.com/e/gis/22285/4A106C0C8614 Twitter: http://twitter.com/apisanty ---->> Unete a ISOC Mexico, http://www.isoc.org . . . . . . . . . . . . . . . . ________________________________________ Desde: at-large-bounces@atlarge-lists.icann.org [at-large-bounces@atlarge-lists.icann.org] en nombre de Subrenat, Jean-Jacques [jjs@dyalog.net] Enviado el: domingo, 10 de abril de 2016 12:19 Hasta: parminder CC: At-Large Worldwide Asunto: Re: [At-Large] R: R: Is ICANN's oversight really moving away from the US government? Having read, or re-read, the 67 messages which make up this thread so far, I would like to offer a few remarks and make a suggestion. REMARKS: - Throughout this thread, some terms have been used loosely, e.g. "international", "international organization", "treaty organization", etc. Current international law requires that we respect the definition of each of these terms. In particular, "international organization" refers to a body set up by a treaty to which member states are parties, and which their respective parliaments have ratified. In this sense, ICANN is not an international organization, although its work may have global effects. It should be clear that the membership of a Treaty Organization is limited to sovereign states, or multilateral bodies themselves set up by those sovereign states (e.g. the European Union). Therefore, if ICANN were to be transformed into an "international organization", it would be governed by the collective will of its members, i.e. sovereign states. This governing power would/could not be shared with any other category of membership. - The claim, made at the beginning of this whole thread, that ICANN should and could come under some "international jurisdiction" might seem interesting, but cannot overcome the fact that, in the current acceptance of international law, there is no intermediate status between that of a Treaty Organization on the one hand, and on the other hand an entity which, in spite of its worldwide significance, does not have international status as granted by sovereign states. - Like any other human construct, international law has evolved over time: at this stage, only sovereign states have the power to create, modify or terminate an international organization. The reasons invoked so far on this thread for giving ICANN a different legal status include: reinforcing the public interest component, strengthening accountability, heeding the needs of the global Internet user community, reinforcing the international nature and perspective of ICANN. - The status of International Organization may not be available for ICANN: in addition, many within our communities have argued that it is also not desirable. This was largely debated in the CWG and in the CCWG. As for the Proposal sent by the ICG to the NTIA on 10 March 2016, it was bound by the criteria set out by the NTIA, including that the proposed transfer of oversight of the IANA Functions would not be exercised by any government, group of governments, or Treaty Organization. SUGGESTION: - ICANN and the United States of America entered into an agreement, first the Joint Project Agreement (JPA) and later the Affirmation of Commitments (AoC), by which both parties undertook to respect a series of principles and procedures. - The mechanism set up for the AoC could be widened to all parties interested in an improved ICANN. An International Affirmation of Commitments (IAC) could be drafted by the ICANN Board and opened to a range of signatories: sovereign states, enterprises, NGOs, associations, international organizations (e.g. the European Union, the Association of American States, UNESCO, etc.). - I first aired this idea when serving on the ICANN Board (2007-10). Things were not ripe then. Are they now? Best regards, Jean-Jacques. ----- Mail original ----- De: "parminder" <parminder@itforchange.net> À: "Olivier MJ Crepin-Leblond" <ocl@gih.com> Cc: "At-Large Worldwide" <at-large@atlarge-lists.icann.org> Envoyé: Dimanche 10 Avril 2016 11:11:04 Objet: Re: [At-Large] R: R: Is ICANN's oversight really moving away from the US government? Olivier You are running in circles around the main case that I am presenting but *not* addressing it in the exact form I present it, which, I repeat, is as follows... *Rojoadirecta takes a closed gTLD only for its own business, and so there is no other agency that loses anything in closing down of .rojadirecta, only rojadirecta loses which is supposed to be the intention of the court order.* I am putting the above under emphasis so that you get it and get nothing else, and try to respond only to this situation - which is an important representative one. The situation being, we move a few years back, enforcement agencies have the same problem with rojadirecta that they had a few years back, but this time verisign as controller of .com is unable to be of any help, bec .rojadirecta is a gtld and its own registry... Only ICANN can remove .rojadirecta, and it can do so without doing any damage at all to anything or anyone else, other than rojadirecta, which is the very intention of the enforcement action (of a court or another US agency) I can clearly see that the order, court or otherwise, but especially of a court, will in such a situation go now to ICANN - bec for a US court/agency ICANN is not in any way different from verisign - and that ICANN MUST comply with the order, on the pain of further coercive action. Do you or anyone else have a case that no, this wont happen.... If so, please be explicit, and justify your reasoning. That will be the right response to what I am arguing. But I see from your email below that you are inclined to say that if rojadirecta is indeed afraid of being on the wrong side of US law, now or any time in future, in doing a business that has nothing directly to do with the US, it should simply not take a gTLD.... I just want to hear it again, is this what you are saying.... If so, it is both surprising and very disappointing that a leader of ALAC, the supposed civil society space working with ICANN, is saying such a thing.... That a central domain name service can/ should be denied to non US entities, unless they are ready to act as per US law and fully so, even if they are acting entirely outside of the US..... Is this justice and fairness? How are people here in ALAC opening advocating it? How can we allow DNS to become a tool of making all of the world subject to US laws, in all areas of social activity, bec a gTLD can be in any area of social activity, governance, health, education, anything and everything..... Anyone aspiring to a gLTD in any of these social areas must make sure that it, now and for ever, observe US law, even if it plans never to have anything to do with the US..... Are we here at ALAC really advocating, or by default, working towards such a world? parminder On Sunday 10 April 2016 01:18 AM, Olivier MJ Crepin-Leblond wrote: Dear Parminder, let me try and help here too: On 09/04/2016 07:01, parminder wrote: US courts are not a subject of ICANN, it is the other way around.... So courts are not going to observe the intricate niceties of ICANN's internal lingo..... gTLDs are directly controlled by ICANN, it can include and remove one from the operative list of gTLDs.... There is no other way to remove a gTLD... That alone counts, and the court will direct ICANN accordingly.... Just forget the ICANN jargon. Please respond to substantive points and issues. So what you are saying is that ICANN has sole ability to add or remove TLDs from the Root, so US courts could ask ICANN to remove TLDs from the Root. But Parminder, we are always talking about 2nd level - ie. the names *under* the top level domain. What you are effectively saying is that a request could be made by a US court to remove a top level domain from the Root --- WHY? This is throwing the baby out with the bathwater. This is like asking for the Indian Top Level Domain .IN to be removed from the root because a sub-domain under .IN is used for criminal activity. What I mentioned in my previous message is that there is jurisprudence already in the US for this, so this kind of request has very little chance of ever succeeding. You havent responded to my substantive points, and are taking the cover of a jargon about which I care as little as a US court will.. The substantive point it; is to proceed from an existing case, rojadirecta had taken a gTLD, it were .rojadirecta (or for wikipedia's case .wikipedia), and the same case had come to the same US court, where would its order to take down the web presence of the respective businesses be directed? Would you care to respond to this point? Thanks. So here again, you are speaking about Top Level Domains. If I understand you correctly, you take the example of Rojadirecta having applied successfully for top level domain Rojadirecta - and what you are saying is that there could be a request through a US court for this top level domain to be removed from the Root. Using your words, that would "take down the web presence of the respective businesses" -- all of the domain names under .rojadirecta would be affected. Well, you're right. Perhaps that's why Rojadirecta prefers operating under a variety of top level domains that are not run by a US Registry rather than running its own Top Level Domain. Kindest regards, Olivier _______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large At-Large Official Site: http://atlarge.icann.org _______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large At-Large Official Site: http://atlarge.icann.org
On Sunday 10 April 2016 10:49 PM, Subrenat, Jean-Jacques wrote:
Having read, or re-read, the 67 messages which make up this thread so far, I would like to offer a few remarks and make a suggestion.
REMARKS:
- Throughout this thread, some terms have been used loosely, e.g. "international", "international organization", "treaty organization", etc. Current international law requires that we respect the definition of each of these terms. In particular, "international organization" refers to a body set up by a treaty to which member states are parties, and which their respective parliaments have ratified. In this sense, ICANN is not an international organization, although its work may have global effects. It should be clear that the membership of a Treaty Organization is limited to sovereign states, or multilateral bodies themselves set up by those sovereign states (e.g. the European Union). Therefore, if ICANN were to be transformed into an "international organization", it would be governed by the collective will of its members, i.e. sovereign states. This governing power would/could not be shared with any other category of membership.
This is not true.... A treaty signed by governments can create international law making for a body which is governed in any way that they may want it governed... My proposal is for the treaty to have the ICANN governed exactly as it is governed at present, including the new mechanisms of the transition proposal, but now incorporated under the international law, created by the treaty, and not, as currently, under US laws created by the US legislature (either way the 'law' is governmental - there is no escape from it)..... I am seeing here a continuing confusion between two very different things (1) law(s) of incorporation, and accordingly application of overall jurisdiction, (2) nature of governance system of an incorporated organisation. It is this confusion that informs most responses to my proposal. You must see that while ICANN's governance system is multistakeholder, the law of its incorporation, and jurisdiction over it, is fully fully governmental, that of a single government, the US. The proposal is not to change ICANN's multistakeholder governance system, it is meant to be preserved as it is....It is the second element, its law of incorporation, and accordingly, applicable jurisdiction, which is sought to be changed from the current US based to an international one... Either way it is governmental. One is US government, other has all governments together, by consensus. I cant see how one can prefer the former - especially if not a US citizen.
- The claim, made at the beginning of this whole thread, that ICANN should and could come under some "international jurisdiction" might seem interesting, but cannot overcome the fact that, in the current acceptance of international law, there is no intermediate status between that of a Treaty Organization on the one hand, and on the other hand an entity which, in spite of its worldwide significance, does not have international status as granted by sovereign states.
Yes, law has today to be written by a national - governmental - system, or an international - governmental - system. There is no third way. Jean-Jacques, are you suggesting any new way for writing 'law', in its fully serious and real meaning? (Remember, a law is a law only if backed by legitimate coercive force.) If so, I very much look forward to hearing about it, and am willing to engage with any such proposals.
- Like any other human construct, international law has evolved over time: at this stage, only sovereign states have the power to create, modify or terminate an international organization. The reasons invoked so far on this thread for giving ICANN a different legal status include: reinforcing the public interest component, strengthening accountability, heeding the needs of the global Internet user community, reinforcing the international nature and perspective of ICANN.
I really want to hear more about the 'legal' status for ICANN you are proposing. For which, allow me to remind you of your own above caveat in the opening line of your present email that lets not 'loosely' employ terms with serious and specific political and legal meanings.
- The status of International Organization may not be available for ICANN:
It is fully available. An international treaty has to sanctify the current ICANN gov structure, and put it into international law through an international treaty.
in addition, many within our communities have argued that it is also not desirable. This was largely debated in the CWG and in the CCWG. As for the Proposal sent by the ICG to the NTIA on 10 March 2016, it was bound by the criteria set out by the NTIA, including that the proposed transfer of oversight of the IANA Functions would not be exercised by any government, group of governments, or Treaty Organization.
Again a confusion. Unless you think post transition IANA functions continue to be in the oversight of US gov (they being in its jurisdiction), I am not proposing international inter-gov oversight of ICANN... ICANN can very well be under the new devised 'community oversight'.... I am only talking about the applicable jurisdiction - which has to either be US gov or international law. (Do you know of a third option, if so pl share?). I am seeking jurisdiction of international law, with host country jurisdiction immunity. NTIA criterion was "NTIA will not accept a proposal that replaces the NTIA role with a government-led or an inter-governmental organization solution." My proposal does not replace NTIA's current oversight role by an inter-gov one. It seeks to replace US's - continued - jurisdiction with international - inter-gov - jurisdiction. Pl see the difference. Meanwhile, I am surprised by your assertion that NTIA has excluded discussion on ICANN jurisdiction in its initial criteria.... I thought this issue is open to be discussed, and in fact CCWG's work stream 2 is going to take it up (as also observed by Seun in this thread).
SUGGESTION:
- ICANN and the United States of America entered into an agreement, first the Joint Project Agreement (JPA) and later the Affirmation of Commitments (AoC), by which both parties undertook to respect a series of principles and procedures.
Any organisation can enter into any kind of agreements with others, and put them in its bylaws or whatever.... that *does not* create a new jurisdiction, or law of incorporation.... For that it has to depend on some superior politico-legal source, and it can only be either a national jurisdiction or an international one.......
- The mechanism set up for the AoC could be widened to all parties interested in an improved ICANN. An International Affirmation of Commitments (IAC) could be drafted by the ICANN Board and opened to a range of signatories: sovereign states, enterprises, NGOs, associations, international organizations (e.g. the European Union, the Association of American States, UNESCO, etc.).
Jean-Jacques, if you and others are serious proposing a new political arrangement, please be both brave and clear about it, and also specific. I am surely interested to hear about any such political innovation. But please put them forward in all seriousness, and detail, and plausibility.. It is somewhat strange that I am being accused in this thread of proposing things that are simply impractical or too difficult to take forward. And the same people are putting forward proposals, which, as far as I read them, seek means of law making that have not been thought of, much less undertaken, in the last many centuries of development of democracy (and I think are very problematically post-democratic). But still, I want to hear more about the proposals, and am ready to engage with them. Thanks parminder
- I first aired this idea when serving on the ICANN Board (2007-10). Things were not ripe then. Are they now?
Best regards, Jean-Jacques.
----- Mail original ----- De: "parminder" <parminder@itforchange.net> À: "Olivier MJ Crepin-Leblond" <ocl@gih.com> Cc: "At-Large Worldwide" <at-large@atlarge-lists.icann.org> Envoyé: Dimanche 10 Avril 2016 11:11:04 Objet: Re: [At-Large] R: R: Is ICANN's oversight really moving away from the US government?
Olivier
You are running in circles around the main case that I am presenting but *not* addressing it in the exact form I present it, which, I repeat, is as follows...
*Rojoadirecta takes a closed gTLD only for its own business, and so there is no other agency that loses anything in closing down of .rojadirecta, only rojadirecta loses which is supposed to be the intention of the court order.*
I am putting the above under emphasis so that you get it and get nothing else, and try to respond only to this situation - which is an important representative one.
The situation being, we move a few years back, enforcement agencies have the same problem with rojadirecta that they had a few years back, but this time verisign as controller of .com is unable to be of any help, bec .rojadirecta is a gtld and its own registry... Only ICANN can remove .rojadirecta, and it can do so without doing any damage at all to anything or anyone else, other than rojadirecta, which is the very intention of the enforcement action (of a court or another US agency)
I can clearly see that the order, court or otherwise, but especially of a court, will in such a situation go now to ICANN - bec for a US court/agency ICANN is not in any way different from verisign - and that ICANN MUST comply with the order, on the pain of further coercive action.
Do you or anyone else have a case that no, this wont happen.... If so, please be explicit, and justify your reasoning. That will be the right response to what I am arguing.
But I see from your email below that you are inclined to say that if rojadirecta is indeed afraid of being on the wrong side of US law, now or any time in future, in doing a business that has nothing directly to do with the US, it should simply not take a gTLD.... I just want to hear it again, is this what you are saying....
If so, it is both surprising and very disappointing that a leader of ALAC, the supposed civil society space working with ICANN, is saying such a thing.... That a central domain name service can/ should be denied to non US entities, unless they are ready to act as per US law and fully so, even if they are acting entirely outside of the US..... Is this justice and fairness? How are people here in ALAC opening advocating it?
How can we allow DNS to become a tool of making all of the world subject to US laws, in all areas of social activity, bec a gTLD can be in any area of social activity, governance, health, education, anything and everything..... Anyone aspiring to a gLTD in any of these social areas must make sure that it, now and for ever, observe US law, even if it plans never to have anything to do with the US..... Are we here at ALAC really advocating, or by default, working towards such a world?
parminder
On Sunday 10 April 2016 01:18 AM, Olivier MJ Crepin-Leblond wrote:
Dear Parminder,
let me try and help here too:
On 09/04/2016 07:01, parminder wrote:
US courts are not a subject of ICANN, it is the other way around.... So courts are not going to observe the intricate niceties of ICANN's internal lingo..... gTLDs are directly controlled by ICANN, it can include and remove one from the operative list of gTLDs.... There is no other way to remove a gTLD... That alone counts, and the court will direct ICANN accordingly.... Just forget the ICANN jargon. Please respond to substantive points and issues. So what you are saying is that ICANN has sole ability to add or remove TLDs from the Root, so US courts could ask ICANN to remove TLDs from the Root. But Parminder, we are always talking about 2nd level - ie. the names *under* the top level domain. What you are effectively saying is that a request could be made by a US court to remove a top level domain from the Root --- WHY? This is throwing the baby out with the bathwater. This is like asking for the Indian Top Level Domain .IN to be removed from the root because a sub-domain under .IN is used for criminal activity. What I mentioned in my previous message is that there is jurisprudence already in the US for this, so this kind of request has very little chance of ever succeeding.
You havent responded to my substantive points, and are taking the cover of a jargon about which I care as little as a US court will.. The substantive point it; is to proceed from an existing case, rojadirecta had taken a gTLD, it were .rojadirecta (or for wikipedia's case .wikipedia), and the same case had come to the same US court, where would its order to take down the web presence of the respective businesses be directed? Would you care to respond to this point? Thanks. So here again, you are speaking about Top Level Domains. If I understand you correctly, you take the example of Rojadirecta having applied successfully for top level domain Rojadirecta - and what you are saying is that there could be a request through a US court for this top level domain to be removed from the Root. Using your words, that would "take down the web presence of the respective businesses" -- all of the domain names under .rojadirecta would be affected. Well, you're right. Perhaps that's why Rojadirecta prefers operating under a variety of top level domains that are not run by a US Registry rather than running its own Top Level Domain.
Kindest regards,
Olivier
_______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large
At-Large Official Site: http://atlarge.icann.org
Parminder, the proposal to have a number of synchronized, pre-agreed, unilateral statements that affirm mutual commitments between ICANN and a number of relevant parties is not a new system. It is fully based in a rather restrained way on the legal and political bases available today. Nobody is accusing you of anything. Brevity may add to clarity. Alejandro Pisanty - - - - - - - - - - - - - - - - - - - - - - - - - - - Dr. Alejandro Pisanty Facultad de Química UNAM Av. Universidad 3000, 04510 Mexico DF Mexico +52-1-5541444475 FROM ABROAD +525541444475 DESDE MÉXICO SMS +525541444475 Blog: http://pisanty.blogspot.com LinkedIn: http://www.linkedin.com/in/pisanty Unete al grupo UNAM en LinkedIn, http://www.linkedin.com/e/gis/22285/4A106C0C8614 Twitter: http://twitter.com/apisanty ---->> Unete a ISOC Mexico, http://www.isoc.org . . . . . . . . . . . . . . . . ________________________________________ Desde: at-large-bounces@atlarge-lists.icann.org [at-large-bounces@atlarge-lists.icann.org] en nombre de parminder [parminder@itforchange.net] Enviado el: martes, 12 de abril de 2016 18:52 Hasta: Subrenat, Jean-Jacques; At-Large Worldwide Asunto: Re: [At-Large] R: R: Is ICANN's oversight really moving away from the US government? On Sunday 10 April 2016 10:49 PM, Subrenat, Jean-Jacques wrote:
Having read, or re-read, the 67 messages which make up this thread so far, I would like to offer a few remarks and make a suggestion.
REMARKS:
- Throughout this thread, some terms have been used loosely, e.g. "international", "international organization", "treaty organization", etc. Current international law requires that we respect the definition of each of these terms. In particular, "international organization" refers to a body set up by a treaty to which member states are parties, and which their respective parliaments have ratified. In this sense, ICANN is not an international organization, although its work may have global effects. It should be clear that the membership of a Treaty Organization is limited to sovereign states, or multilateral bodies themselves set up by those sovereign states (e.g. the European Union). Therefore, if ICANN were to be transformed into an "international organization", it would be governed by the collective will of its members, i.e. sovereign states. This governing power would/could not be shared with any other category of membership.
This is not true.... A treaty signed by governments can create international law making for a body which is governed in any way that they may want it governed... My proposal is for the treaty to have the ICANN governed exactly as it is governed at present, including the new mechanisms of the transition proposal, but now incorporated under the international law, created by the treaty, and not, as currently, under US laws created by the US legislature (either way the 'law' is governmental - there is no escape from it)..... I am seeing here a continuing confusion between two very different things (1) law(s) of incorporation, and accordingly application of overall jurisdiction, (2) nature of governance system of an incorporated organisation. It is this confusion that informs most responses to my proposal. You must see that while ICANN's governance system is multistakeholder, the law of its incorporation, and jurisdiction over it, is fully fully governmental, that of a single government, the US. The proposal is not to change ICANN's multistakeholder governance system, it is meant to be preserved as it is....It is the second element, its law of incorporation, and accordingly, applicable jurisdiction, which is sought to be changed from the current US based to an international one... Either way it is governmental. One is US government, other has all governments together, by consensus. I cant see how one can prefer the former - especially if not a US citizen.
- The claim, made at the beginning of this whole thread, that ICANN should and could come under some "international jurisdiction" might seem interesting, but cannot overcome the fact that, in the current acceptance of international law, there is no intermediate status between that of a Treaty Organization on the one hand, and on the other hand an entity which, in spite of its worldwide significance, does not have international status as granted by sovereign states.
Yes, law has today to be written by a national - governmental - system, or an international - governmental - system. There is no third way. Jean-Jacques, are you suggesting any new way for writing 'law', in its fully serious and real meaning? (Remember, a law is a law only if backed by legitimate coercive force.) If so, I very much look forward to hearing about it, and am willing to engage with any such proposals.
- Like any other human construct, international law has evolved over time: at this stage, only sovereign states have the power to create, modify or terminate an international organization. The reasons invoked so far on this thread for giving ICANN a different legal status include: reinforcing the public interest component, strengthening accountability, heeding the needs of the global Internet user community, reinforcing the international nature and perspective of ICANN.
I really want to hear more about the 'legal' status for ICANN you are proposing. For which, allow me to remind you of your own above caveat in the opening line of your present email that lets not 'loosely' employ terms with serious and specific political and legal meanings.
- The status of International Organization may not be available for ICANN:
It is fully available. An international treaty has to sanctify the current ICANN gov structure, and put it into international law through an international treaty.
in addition, many within our communities have argued that it is also not desirable. This was largely debated in the CWG and in the CCWG. As for the Proposal sent by the ICG to the NTIA on 10 March 2016, it was bound by the criteria set out by the NTIA, including that the proposed transfer of oversight of the IANA Functions would not be exercised by any government, group of governments, or Treaty Organization.
Again a confusion. Unless you think post transition IANA functions continue to be in the oversight of US gov (they being in its jurisdiction), I am not proposing international inter-gov oversight of ICANN... ICANN can very well be under the new devised 'community oversight'.... I am only talking about the applicable jurisdiction - which has to either be US gov or international law. (Do you know of a third option, if so pl share?). I am seeking jurisdiction of international law, with host country jurisdiction immunity. NTIA criterion was "NTIA will not accept a proposal that replaces the NTIA role with a government-led or an inter-governmental organization solution." My proposal does not replace NTIA's current oversight role by an inter-gov one. It seeks to replace US's - continued - jurisdiction with international - inter-gov - jurisdiction. Pl see the difference. Meanwhile, I am surprised by your assertion that NTIA has excluded discussion on ICANN jurisdiction in its initial criteria.... I thought this issue is open to be discussed, and in fact CCWG's work stream 2 is going to take it up (as also observed by Seun in this thread).
SUGGESTION:
- ICANN and the United States of America entered into an agreement, first the Joint Project Agreement (JPA) and later the Affirmation of Commitments (AoC), by which both parties undertook to respect a series of principles and procedures.
Any organisation can enter into any kind of agreements with others, and put them in its bylaws or whatever.... that *does not* create a new jurisdiction, or law of incorporation.... For that it has to depend on some superior politico-legal source, and it can only be either a national jurisdiction or an international one.......
- The mechanism set up for the AoC could be widened to all parties interested in an improved ICANN. An International Affirmation of Commitments (IAC) could be drafted by the ICANN Board and opened to a range of signatories: sovereign states, enterprises, NGOs, associations, international organizations (e.g. the European Union, the Association of American States, UNESCO, etc.).
Jean-Jacques, if you and others are serious proposing a new political arrangement, please be both brave and clear about it, and also specific. I am surely interested to hear about any such political innovation. But please put them forward in all seriousness, and detail, and plausibility.. It is somewhat strange that I am being accused in this thread of proposing things that are simply impractical or too difficult to take forward. And the same people are putting forward proposals, which, as far as I read them, seek means of law making that have not been thought of, much less undertaken, in the last many centuries of development of democracy (and I think are very problematically post-democratic). But still, I want to hear more about the proposals, and am ready to engage with them. Thanks parminder
- I first aired this idea when serving on the ICANN Board (2007-10). Things were not ripe then. Are they now?
Best regards, Jean-Jacques.
----- Mail original ----- De: "parminder" <parminder@itforchange.net> À: "Olivier MJ Crepin-Leblond" <ocl@gih.com> Cc: "At-Large Worldwide" <at-large@atlarge-lists.icann.org> Envoyé: Dimanche 10 Avril 2016 11:11:04 Objet: Re: [At-Large] R: R: Is ICANN's oversight really moving away from the US government?
Olivier
You are running in circles around the main case that I am presenting but *not* addressing it in the exact form I present it, which, I repeat, is as follows...
*Rojoadirecta takes a closed gTLD only for its own business, and so there is no other agency that loses anything in closing down of .rojadirecta, only rojadirecta loses which is supposed to be the intention of the court order.*
I am putting the above under emphasis so that you get it and get nothing else, and try to respond only to this situation - which is an important representative one.
The situation being, we move a few years back, enforcement agencies have the same problem with rojadirecta that they had a few years back, but this time verisign as controller of .com is unable to be of any help, bec .rojadirecta is a gtld and its own registry... Only ICANN can remove .rojadirecta, and it can do so without doing any damage at all to anything or anyone else, other than rojadirecta, which is the very intention of the enforcement action (of a court or another US agency)
I can clearly see that the order, court or otherwise, but especially of a court, will in such a situation go now to ICANN - bec for a US court/agency ICANN is not in any way different from verisign - and that ICANN MUST comply with the order, on the pain of further coercive action.
Do you or anyone else have a case that no, this wont happen.... If so, please be explicit, and justify your reasoning. That will be the right response to what I am arguing.
But I see from your email below that you are inclined to say that if rojadirecta is indeed afraid of being on the wrong side of US law, now or any time in future, in doing a business that has nothing directly to do with the US, it should simply not take a gTLD.... I just want to hear it again, is this what you are saying....
If so, it is both surprising and very disappointing that a leader of ALAC, the supposed civil society space working with ICANN, is saying such a thing.... That a central domain name service can/ should be denied to non US entities, unless they are ready to act as per US law and fully so, even if they are acting entirely outside of the US..... Is this justice and fairness? How are people here in ALAC opening advocating it?
How can we allow DNS to become a tool of making all of the world subject to US laws, in all areas of social activity, bec a gTLD can be in any area of social activity, governance, health, education, anything and everything..... Anyone aspiring to a gLTD in any of these social areas must make sure that it, now and for ever, observe US law, even if it plans never to have anything to do with the US..... Are we here at ALAC really advocating, or by default, working towards such a world?
parminder
On Sunday 10 April 2016 01:18 AM, Olivier MJ Crepin-Leblond wrote:
Dear Parminder,
let me try and help here too:
On 09/04/2016 07:01, parminder wrote:
US courts are not a subject of ICANN, it is the other way around.... So courts are not going to observe the intricate niceties of ICANN's internal lingo..... gTLDs are directly controlled by ICANN, it can include and remove one from the operative list of gTLDs.... There is no other way to remove a gTLD... That alone counts, and the court will direct ICANN accordingly.... Just forget the ICANN jargon. Please respond to substantive points and issues. So what you are saying is that ICANN has sole ability to add or remove TLDs from the Root, so US courts could ask ICANN to remove TLDs from the Root. But Parminder, we are always talking about 2nd level - ie. the names *under* the top level domain. What you are effectively saying is that a request could be made by a US court to remove a top level domain from the Root --- WHY? This is throwing the baby out with the bathwater. This is like asking for the Indian Top Level Domain .IN to be removed from the root because a sub-domain under .IN is used for criminal activity. What I mentioned in my previous message is that there is jurisprudence already in the US for this, so this kind of request has very little chance of ever succeeding.
You havent responded to my substantive points, and are taking the cover of a jargon about which I care as little as a US court will.. The substantive point it; is to proceed from an existing case, rojadirecta had taken a gTLD, it were .rojadirecta (or for wikipedia's case .wikipedia), and the same case had come to the same US court, where would its order to take down the web presence of the respective businesses be directed? Would you care to respond to this point? Thanks. So here again, you are speaking about Top Level Domains. If I understand you correctly, you take the example of Rojadirecta having applied successfully for top level domain Rojadirecta - and what you are saying is that there could be a request through a US court for this top level domain to be removed from the Root. Using your words, that would "take down the web presence of the respective businesses" -- all of the domain names under .rojadirecta would be affected. Well, you're right. Perhaps that's why Rojadirecta prefers operating under a variety of top level domains that are not run by a US Registry rather than running its own Top Level Domain.
Kindest regards,
Olivier
_______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large
At-Large Official Site: http://atlarge.icann.org
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On Wednesday 13 April 2016 07:45 AM, Dr. Alejandro Pisanty Baruch wrote:
Parminder,
the proposal to have a number of synchronized, pre-agreed, unilateral statements that affirm mutual commitments between ICANN and a number of relevant parties is not a new system. It is fully based in a rather restrained way on the legal and political bases available today.
Alejandro Would you then please mention what that legal and political basis is. I have no problem with ICANN entering into many relationships with many parties, but the question was about the law of incorporation, and applicable jurisdiction. This has always been 'the' question in this thread of exchanges as far as I am concerned. .... Thanks, parminder
Nobody is accusing you of anything.
Brevity may add to clarity.
Alejandro Pisanty
- - - - - - - - - - - - - - - - - - - - - - - - - - - Dr. Alejandro Pisanty Facultad de Química UNAM Av. Universidad 3000, 04510 Mexico DF Mexico
+52-1-5541444475 FROM ABROAD
+525541444475 DESDE MÉXICO SMS +525541444475 Blog: http://pisanty.blogspot.com LinkedIn: http://www.linkedin.com/in/pisanty Unete al grupo UNAM en LinkedIn, http://www.linkedin.com/e/gis/22285/4A106C0C8614 Twitter: http://twitter.com/apisanty ---->> Unete a ISOC Mexico, http://www.isoc.org . . . . . . . . . . . . . . . .
________________________________________ Desde: at-large-bounces@atlarge-lists.icann.org [at-large-bounces@atlarge-lists.icann.org] en nombre de parminder [parminder@itforchange.net] Enviado el: martes, 12 de abril de 2016 18:52 Hasta: Subrenat, Jean-Jacques; At-Large Worldwide Asunto: Re: [At-Large] R: R: Is ICANN's oversight really moving away from the US government?
On Sunday 10 April 2016 10:49 PM, Subrenat, Jean-Jacques wrote:
Having read, or re-read, the 67 messages which make up this thread so far, I would like to offer a few remarks and make a suggestion.
REMARKS:
- Throughout this thread, some terms have been used loosely, e.g. "international", "international organization", "treaty organization", etc. Current international law requires that we respect the definition of each of these terms. In particular, "international organization" refers to a body set up by a treaty to which member states are parties, and which their respective parliaments have ratified. In this sense, ICANN is not an international organization, although its work may have global effects. It should be clear that the membership of a Treaty Organization is limited to sovereign states, or multilateral bodies themselves set up by those sovereign states (e.g. the European Union). Therefore, if ICANN were to be transformed into an "international organization", it would be governed by the collective will of its members, i.e. sovereign states. This governing power would/could not be shared with any other category of membership. This is not true.... A treaty signed by governments can create international law making for a body which is governed in any way that they may want it governed... My proposal is for the treaty to have the ICANN governed exactly as it is governed at present, including the new mechanisms of the transition proposal, but now incorporated under the international law, created by the treaty, and not, as currently, under US laws created by the US legislature (either way the 'law' is governmental - there is no escape from it)..... I am seeing here a continuing confusion between two very different things (1) law(s) of incorporation, and accordingly application of overall jurisdiction, (2) nature of governance system of an incorporated organisation. It is this confusion that informs most responses to my proposal.
You must see that while ICANN's governance system is multistakeholder, the law of its incorporation, and jurisdiction over it, is fully fully governmental, that of a single government, the US.
The proposal is not to change ICANN's multistakeholder governance system, it is meant to be preserved as it is....It is the second element, its law of incorporation, and accordingly, applicable jurisdiction, which is sought to be changed from the current US based to an international one... Either way it is governmental. One is US government, other has all governments together, by consensus. I cant see how one can prefer the former - especially if not a US citizen.
- The claim, made at the beginning of this whole thread, that ICANN should and could come under some "international jurisdiction" might seem interesting, but cannot overcome the fact that, in the current acceptance of international law, there is no intermediate status between that of a Treaty Organization on the one hand, and on the other hand an entity which, in spite of its worldwide significance, does not have international status as granted by sovereign states. Yes, law has today to be written by a national - governmental - system, or an international - governmental - system. There is no third way. Jean-Jacques, are you suggesting any new way for writing 'law', in its fully serious and real meaning? (Remember, a law is a law only if backed by legitimate coercive force.) If so, I very much look forward to hearing about it, and am willing to engage with any such proposals.
- Like any other human construct, international law has evolved over time: at this stage, only sovereign states have the power to create, modify or terminate an international organization. The reasons invoked so far on this thread for giving ICANN a different legal status include: reinforcing the public interest component, strengthening accountability, heeding the needs of the global Internet user community, reinforcing the international nature and perspective of ICANN. I really want to hear more about the 'legal' status for ICANN you are proposing. For which, allow me to remind you of your own above caveat in the opening line of your present email that lets not 'loosely' employ terms with serious and specific political and legal meanings.
- The status of International Organization may not be available for ICANN: It is fully available. An international treaty has to sanctify the current ICANN gov structure, and put it into international law through an international treaty.
in addition, many within our communities have argued that it is also not desirable. This was largely debated in the CWG and in the CCWG. As for the Proposal sent by the ICG to the NTIA on 10 March 2016, it was bound by the criteria set out by the NTIA, including that the proposed transfer of oversight of the IANA Functions would not be exercised by any government, group of governments, or Treaty Organization. Again a confusion. Unless you think post transition IANA functions continue to be in the oversight of US gov (they being in its jurisdiction), I am not proposing international inter-gov oversight of ICANN... ICANN can very well be under the new devised 'community oversight'.... I am only talking about the applicable jurisdiction - which has to either be US gov or international law. (Do you know of a third option, if so pl share?). I am seeking jurisdiction of international law, with host country jurisdiction immunity. NTIA criterion was "NTIA will not accept a proposal that replaces the NTIA role with a government-led or an inter-governmental organization solution." My proposal does not replace NTIA's current oversight role by an inter-gov one. It seeks to replace US's - continued - jurisdiction with international - inter-gov - jurisdiction. Pl see the difference.
Meanwhile, I am surprised by your assertion that NTIA has excluded discussion on ICANN jurisdiction in its initial criteria.... I thought this issue is open to be discussed, and in fact CCWG's work stream 2 is going to take it up (as also observed by Seun in this thread).
SUGGESTION:
- ICANN and the United States of America entered into an agreement, first the Joint Project Agreement (JPA) and later the Affirmation of Commitments (AoC), by which both parties undertook to respect a series of principles and procedures. Any organisation can enter into any kind of agreements with others, and put them in its bylaws or whatever.... that *does not* create a new jurisdiction, or law of incorporation.... For that it has to depend on some superior politico-legal source, and it can only be either a national jurisdiction or an international one....... - The mechanism set up for the AoC could be widened to all parties interested in an improved ICANN. An International Affirmation of Commitments (IAC) could be drafted by the ICANN Board and opened to a range of signatories: sovereign states, enterprises, NGOs, associations, international organizations (e.g. the European Union, the Association of American States, UNESCO, etc.). Jean-Jacques, if you and others are serious proposing a new political arrangement, please be both brave and clear about it, and also specific. I am surely interested to hear about any such political innovation. But please put them forward in all seriousness, and detail, and plausibility..
It is somewhat strange that I am being accused in this thread of proposing things that are simply impractical or too difficult to take forward. And the same people are putting forward proposals, which, as far as I read them, seek means of law making that have not been thought of, much less undertaken, in the last many centuries of development of democracy (and I think are very problematically post-democratic). But still, I want to hear more about the proposals, and am ready to engage with them.
Thanks
parminder
- I first aired this idea when serving on the ICANN Board (2007-10). Things were not ripe then. Are they now?
Best regards, Jean-Jacques.
----- Mail original ----- De: "parminder" <parminder@itforchange.net> À: "Olivier MJ Crepin-Leblond" <ocl@gih.com> Cc: "At-Large Worldwide" <at-large@atlarge-lists.icann.org> Envoyé: Dimanche 10 Avril 2016 11:11:04 Objet: Re: [At-Large] R: R: Is ICANN's oversight really moving away from the US government?
Olivier
You are running in circles around the main case that I am presenting but *not* addressing it in the exact form I present it, which, I repeat, is as follows...
*Rojoadirecta takes a closed gTLD only for its own business, and so there is no other agency that loses anything in closing down of .rojadirecta, only rojadirecta loses which is supposed to be the intention of the court order.*
I am putting the above under emphasis so that you get it and get nothing else, and try to respond only to this situation - which is an important representative one.
The situation being, we move a few years back, enforcement agencies have the same problem with rojadirecta that they had a few years back, but this time verisign as controller of .com is unable to be of any help, bec .rojadirecta is a gtld and its own registry... Only ICANN can remove .rojadirecta, and it can do so without doing any damage at all to anything or anyone else, other than rojadirecta, which is the very intention of the enforcement action (of a court or another US agency)
I can clearly see that the order, court or otherwise, but especially of a court, will in such a situation go now to ICANN - bec for a US court/agency ICANN is not in any way different from verisign - and that ICANN MUST comply with the order, on the pain of further coercive action.
Do you or anyone else have a case that no, this wont happen.... If so, please be explicit, and justify your reasoning. That will be the right response to what I am arguing.
But I see from your email below that you are inclined to say that if rojadirecta is indeed afraid of being on the wrong side of US law, now or any time in future, in doing a business that has nothing directly to do with the US, it should simply not take a gTLD.... I just want to hear it again, is this what you are saying....
If so, it is both surprising and very disappointing that a leader of ALAC, the supposed civil society space working with ICANN, is saying such a thing.... That a central domain name service can/ should be denied to non US entities, unless they are ready to act as per US law and fully so, even if they are acting entirely outside of the US..... Is this justice and fairness? How are people here in ALAC opening advocating it?
How can we allow DNS to become a tool of making all of the world subject to US laws, in all areas of social activity, bec a gTLD can be in any area of social activity, governance, health, education, anything and everything..... Anyone aspiring to a gLTD in any of these social areas must make sure that it, now and for ever, observe US law, even if it plans never to have anything to do with the US..... Are we here at ALAC really advocating, or by default, working towards such a world?
parminder
On Sunday 10 April 2016 01:18 AM, Olivier MJ Crepin-Leblond wrote:
Dear Parminder,
let me try and help here too:
On 09/04/2016 07:01, parminder wrote:
US courts are not a subject of ICANN, it is the other way around.... So courts are not going to observe the intricate niceties of ICANN's internal lingo..... gTLDs are directly controlled by ICANN, it can include and remove one from the operative list of gTLDs.... There is no other way to remove a gTLD... That alone counts, and the court will direct ICANN accordingly.... Just forget the ICANN jargon. Please respond to substantive points and issues. So what you are saying is that ICANN has sole ability to add or remove TLDs from the Root, so US courts could ask ICANN to remove TLDs from the Root. But Parminder, we are always talking about 2nd level - ie. the names *under* the top level domain. What you are effectively saying is that a request could be made by a US court to remove a top level domain from the Root --- WHY? This is throwing the baby out with the bathwater. This is like asking for the Indian Top Level Domain .IN to be removed from the root because a sub-domain under .IN is used for criminal activity. What I mentioned in my previous message is that there is jurisprudence already in the US for this, so this kind of request has very little chance of ever succeeding.
You havent responded to my substantive points, and are taking the cover of a jargon about which I care as little as a US court will.. The substantive point it; is to proceed from an existing case, rojadirecta had taken a gTLD, it were .rojadirecta (or for wikipedia's case .wikipedia), and the same case had come to the same US court, where would its order to take down the web presence of the respective businesses be directed? Would you care to respond to this point? Thanks. So here again, you are speaking about Top Level Domains. If I understand you correctly, you take the example of Rojadirecta having applied successfully for top level domain Rojadirecta - and what you are saying is that there could be a request through a US court for this top level domain to be removed from the Root. Using your words, that would "take down the web presence of the respective businesses" -- all of the domain names under .rojadirecta would be affected. Well, you're right. Perhaps that's why Rojadirecta prefers operating under a variety of top level domains that are not run by a US Registry rather than running its own Top Level Domain.
Kindest regards,
Olivier
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participants (13)
-
bzs＠theworld.com -
Carlton Samuels -
Dr. Alejandro Pisanty Baruch -
León Felipe Sánchez Ambía -
McTim -
Michele Neylon - Blacknight -
Olivier MJ Crepin-Leblond -
parminder -
Pranesh Prakash -
Ron Baione -
Seth M Reiss -
Subrenat, Jean-Jacques -
Vanda Scartezini