US v John Doe 1 & Others [Defendants]
Dear All, Warm Greetings from Fiji! Trusting that you are all well and in excellent health. There was an interesting blog by Milton Mueller that I read today, see: http://blog.internetgovernance.org/blog/_archives/2011/11/23/4944811.html The Post Indictment Protective Order pursuant to 21 U.S.C issued by the Honorable William H Pauly III United States District Judge Southern District of New York see para 13, page 7 and 8 http://images.spaceref.com/news/2011/ProtectiveOrder.pdf What is of interest in the Order is that it mentions all the RIRs that are served Notice have to comply with the instructions within the Judgment. Kind Regards, -- Salanieta Tamanikaiwaimaro aka Sala Tweeter: @SalanietaT Skype:Salanieta.Tamanikaiwaimaro Cell: +679 998 2851
http://images.spaceref.com/news/2011/ProtectiveOrder.pdf What is of interest in the Order is that it mentions all the RIRs that are served Notice have to comply with the instructions within the Judgment.
The RIR in question is RIPE which is located in Amsterdam, and the Dutch police ordered them to comply. Now there's some interesting European legal wrangling about whether the police had the authority to issue the order. This is definitely not a situation where the US is attempting to directly order RIPE to do anything. Also note that nobody is disputing the merits of the order -- this is about the DNSchanger malware which reroutes victims' DNS queries to servers run by the bad guys, and the order arranges for the IP addresses used for those servers to be rerouted to honest DNS caches run by ISC. Regards, John Levine, johnl@iecc.com, Primary Perpetrator of "The Internet for Dummies", Please consider the environment before reading this e-mail. http://jl.ly
On Sun, Nov 27, 2011 at 7:43 AM, John R. Levine <johnl@iecc.com> wrote:
http://images.spaceref.com/news/2011/ProtectiveOrder.pdf What is of interest in the Order is that it mentions all the RIRs that are served Notice have to comply with the instructions within the Judgment.
The RIR in question is RIPE which is located in Amsterdam, and the Dutch police ordered them to comply. Now there's some interesting European legal wrangling about whether the police had the authority to issue the order.
This is definitely not a situation where the US is attempting to directly order RIPE to do anything.
In this instance (my views as an individual and not representing anyone's views in this instance), the US has every right to. This is the *locus*: IANA delegates to RIRs and because IANA is based in the US, it is subject to US laws for all its intents and purposes. It follows that the Judge is fully right in law to order all the RIRs to comply over something that was issued from the US in the first place.
Also note that nobody is disputing the merits of the order -- this is about the DNSchanger malware which reroutes victims' DNS queries to servers run by the bad guys, and the order arranges for the IP addresses used for those servers to be rerouted to honest DNS caches run by ISC.
There is no dispute of the merit of the Order at least not from me. However, the issue and the question is should regulation be done at the ISP level or the RIR level?
Regards, John Levine, johnl@iecc.com, Primary Perpetrator of "The Internet for Dummies", Please consider the environment before reading this e-mail. http://jl.ly _______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large
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In this instance (my views as an individual and not representing anyone's views in this instance), the US has every right to. This is the *locus*: IANA delegates to RIRs and because IANA is based in the US, it is subject to US laws for all its intents and purposes.
I don't think you'll get a lot of sympathy for that theory. I have bought books from amazon.co.uk. Does that mean I'm subject to UK law?
However, the issue and the question is should regulation be done at the ISP level or the RIR level?
Several of the ISPs appear to be in the Ukraine and are controlled by the criminals. You need both. Regards, John Levine, johnl@iecc.com, Primary Perpetrator of "The Internet for Dummies", Please consider the environment before reading this e-mail. http://jl.ly
On Sun, Nov 27, 2011 at 8:06 AM, John R. Levine <johnl@iecc.com> wrote:
In this instance (my views as an individual and not representing anyone's views in this instance), the US has every right to. This is the *locus*: IANA delegates to RIRs and because IANA is based in the US, it is subject to US laws for all its intents and purposes.
I don't think you'll get a lot of sympathy for that theory.
No worries, not looking for sympathy. It was mere analysis on my part.
I have bought books from amazon.co.uk. Does that mean I'm subject to UK law?
This is an excellent example that you have raised. Books in this instance is property and is capable of being purchased (when this happens the legal, equitable, proprietary interests) are transferred with it making it the purchaser's possession. This enables the purchaser, in this instance you to freely move in and out of countries with your newly acquired books unless you move into a country where possession of those books can be seen as a violation eg. taking a copy of the Satanic Verses and having it found on you in certain States etc. If the book that was sold to you on amazon.co.uk was a stolen book (highly unlikely) then UK laws would apply to you, at least when it comes to you stepping foot on UK soil or territories etc :) In this instance, are "IP addresses property"? When IANA assigns numbers to the RIRs, does it become the RIR's property devoid of IANA's future involvement?
However, the issue and the question is should regulation be done at the ISP level or the RIR level?
Several of the ISPs appear to be in the Ukraine and are controlled by the criminals. You need both.
What is definitely interesting is what the boundaries are?
Regards, John Levine, johnl@iecc.com, Primary Perpetrator of "The Internet for Dummies", Please consider the environment before reading this e-mail. http://jl.ly _______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large
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In this instance, are "IP addresses property"? When IANA assigns numbers to the RIRs, does it become the RIR's property devoid of IANA's future involvement?
That is a legally unresolved question. Even within the US, different courts have come to different conclusions.
Several of the ISPs appear to be in the Ukraine and are controlled by the criminals. You need both.
What is definitely interesting is what the boundaries are?
Between what and what? If ISPs are cooperative, you can ask them to shut down the crooks. If they aren't, you have to go upstream to RIRs and governments. Regards, John Levine, johnl@iecc.com, Primary Perpetrator of "The Internet for Dummies", Please consider the environment before reading this e-mail. http://jl.ly
On 11/26/2011 11:20 AM, Salanieta T. Tamanikaiwaimaro wrote:
In this instance, are "IP addresses property"?
That is a somewhat dangerous question to ask. It's not dangerous because you ask it, but rather because the word "property" has so many cultural, social, and emotional connotations that get in the way of clearly thinking about things. It is better to ask what specific rights and obligations have been created in the RIRs by IANA allocations to each RIR and, in turn, to ask what other specific rights and obligations have been created in the RIR and address block recipient. Those rights and obligations may arise from an agreement, but that does not make them any less rights and obligations that could be enforced. The RIRs generally follow a mantra that all they do is enter numbers into books of records, that the RIRs have nothing to do with the routability of packets on the net to computer interfaces that bear those numbers. Something that is mentioned in the IGP blog entry - is that the RIRs might end up becoming a kind of certificate authority that locks the routing systems of the net - at least the BGP based routing systems - into some sort of overarching control hierarchy. That means that this order may be one of the early yellow bricks on a road that leads to yet another set of levers and knobs that can be turned to turn the internet from a vehicle for open interconnection into a vehicle only for approved interconnection. The implications of that for internet governance are large. One good thing about these events is that they are being overseen by a court that appears to have some degree of technical capacity to appreciate the nature of what it is doing. --karl--
This is definitely not a situation where the US is attempting to directly order RIPE to do anything.
I take it you've not read the Order. http://images.spaceref.com/news/2011/ProtectiveOrder.pdf [...] 13. Each Regional Internet Registry ("RIR") receiving notice of this Order shall take all steps necessary to prevent and prohibit the defendants and their co-conspirators from: a. effectuating any change of control over the current registration accounts for the Target IP Addresses; b. making any changes to the registration records for the Target IP Addresses unless prior authorization is received from the FBI, or the United States Attorney's Office for the Southern District of New York ("USAO-SDNY"); or c. directly or indirectly attempting to transfer the Target IP Addresses to any other individuals or entities, except as approved by the FBI, or the USAO-SDNY. [...] IT IS FURTHER ORDERED that: 15. this Protective Order shall be binding upon the defendants, their attorneys, agents, and employees, and all persons in active concert or participation with any of the above, all institutions described herein, or any other person having actual knowledge of this Order, and that this Order shall remain in effect until further order of this Court; [....] -- James S. Tyre Law Offices of James S. Tyre 10736 Jefferson Blvd., #512 Culver City, CA 90230-4969 310-839-4114/310-839-4602(fax) jstyre@jstyre.com Policy Fellow, Electronic Frontier Foundation https://www.eff.org
This is definitely not a situation where the US is attempting to directly order RIPE to do anything.
I take it you've not read the Order.
I have. I take it you haven't read RIPE's statements in which they say they're complying with Dutch police orders, not US courts. Regards, John Levine, johnl@iecc.com, Primary Perpetrator of "The Internet for Dummies", Please consider the environment before reading this e-mail. http://jl.ly
This is definitely not a situation where the US is attempting to directly order RIPE to do anything.
I take it you've not read the Order.
I have. I take it you haven't read RIPE's statements in which they say they're complying with Dutch police orders, not US courts.
I have, but you miss two points. First, regardless of what RIPE says, the U.S. court order is clear on its face that it attempts to be binding on all RIRs (as well as others). I quoted the relevant portions of the U.S. order, your statement about what the U.S. court is attempting to do is wrong. Second, the Dutch police did not suddenly decide to act in a vacuum. The Dutch police received the Order from the U.S. court, then ordered RIPE-NCC to comply with the U.S. court's order. RIPE-NCC has raised questions about whether the Dutch police could do that. I'm not an expert on Dutch law, I express no opinion. But the underlying issue remains the same: can a U.S. court order (directly or indirectly), a non-U.S. RIR to comply with the order? -- James S. Tyre Law Offices of James S. Tyre 10736 Jefferson Blvd., #512 Culver City, CA 90230-4969 310-839-4114/310-839-4602(fax) jstyre@jstyre.com Policy Fellow, Electronic Frontier Foundation https://www.eff.org
I have, but you miss two points.
First, regardless of what RIPE says, the U.S. court order is clear on its face that it attempts to be binding on all RIRs (as well as others). I quoted the relevant portions of the U.S. order, your statement about what the U.S. court is attempting to do is wrong.
Actually, it says the RIRs on which the order was served. Was this order served directly on RIPE? If so, how? There are treaties about this kind of stuff, it's not as straightforward as you might think.
Second, the Dutch police did not suddenly decide to act in a vacuum. The Dutch police received the Order from the U.S. court, then ordered RIPE-NCC to comply with the U.S. court's order.
Yes, I know some of the people involved. Is it your opinion that there is something unusual or improper about governments cooperating in a criminal investigation? R's, John
I have, but you miss two points.
First, regardless of what RIPE says, the U.S. court order is clear on its face that it attempts to be binding on all RIRs (as well as others). I quoted the relevant portions of the U.S. order, your statement about what the U.S. court is attempting to do is wrong.
Actually, it says the RIRs on which the order was served. Was this order served directly on RIPE? If so, how? There are treaties about this kind of stuff, it's not as straightforward as you might think.
The Dutch Police served it on RIPE. Whether that's proper service is a more nuanced question, but once RIPE had actual knowledge of it, it couldn't just ignore it. There was, after all, an order of the Dutch police ordering RIPE to comply with the US court order. Whether a reasonable person (including a reasonable organization for this purpose) would just comply with the police order is a different question, but most reasonable persons don't just ignore local law enforcement orders. Don't assume that the treaties regarding international service are the only methods of proper service (it varies by country and other factors). I've been a practicing lawyer since 1978, I've handled a number of international litigation matters. As in most things law related, there's a difference between what the basic law says and the practice.
Second, the Dutch police did not suddenly decide to act in a vacuum. The Dutch police received the Order from the U.S. court, then ordered RIPE-NCC to comply with the U.S. court's order.
Yes, I know some of the people involved. Is it your opinion that there is something unusual or improper about governments cooperating in a criminal investigation?
Of course not, but that isn't the issue, is it? Can the Dutch government, through the police, order a non-governmental organization to comply with an order of a US court? Can a US court order a non-governmental organization located in a different sovereign to obey its directive? (And note that the US court order is not an investigative subpoena.) Don't misunderstand, I have no sympathy for the targets of the US criminal proceeding. But how these issues get resolved will (or likely may) have far broader implications than just the case (or type of case) at hand. I do care about those things. -- James S. Tyre Law Offices of James S. Tyre 10736 Jefferson Blvd., #512 Culver City, CA 90230-4969 310-839-4114/310-839-4602(fax) jstyre@jstyre.com Policy Fellow, Electronic Frontier Foundation https://www.eff.org
Actually, it says the RIRs on which the order was served. Was this order served directly on RIPE? If so, how? There are treaties about this kind of stuff, it's not as straightforward as you might think.
The Dutch Police served it on RIPE. Whether that's proper service is a more nuanced question, but once RIPE had actual knowledge of it, it couldn't just ignore it. There was, after all, an order of the Dutch police ordering RIPE to comply with the US court order. Whether a reasonable person (including a reasonable organization for this purpose) would just comply with the police order is a different question, but most reasonable persons don't just ignore local law enforcement orders.
Well, yes, they had to follow an order of the local police. I don't see why anyone finds that surprising. As someone else noted, RIPE has not said they were served with a US court order, so I see no reason to assume that they were.
Yes, I know some of the people involved. Is it your opinion that there is something unusual or improper about governments cooperating in a criminal investigation?
Of course not, but that isn't the issue, is it? Can the Dutch government, through the police, order a non-governmental organization to comply with an order of a US court?
Beats me. That's an issue of local Dutch law and perhaps interpretations whatever treaties are in effect, not a mystical issue of whether RIPE is subject to US law. Regards, John Levine, johnl@iecc.com, Primary Perpetrator of "The Internet for Dummies", Please consider the environment before reading this e-mail. http://jl.ly
this is about the DNSchanger malware which reroutes victims' DNS queries to servers run by the bad guys, and the order arranges for the IP addresses used for those servers to be rerouted to honest DNS caches run by ISC.
The jurisdictional issue is fascinating, but it's also worth asking why RIPE had to be ordered to work with ISC and the multinational law enforcement effort aimed at shutting this down. Bret
The jurisdictional issue is fascinating, but it's also worth asking why RIPE had to be ordered to work with ISC and the multinational law enforcement effort aimed at shutting this down.
Nothing mysterious there -- some of the crooks' DNS servers were located in RIPE allocated space in the Ukraine. If you're asking why they were ordered rather than requested, I think you'll find that RIPE is (not unreasonably) reluctant to mess with allocations absent a legal requirement to do so. R's, John
On 11/26/2011 02:18 PM, Bret Fausett wrote:
The jurisdictional issue is fascinating, but it's also worth asking why RIPE had to be ordered to work with ISC and the multinational law enforcement effort aimed at shutting this down.
Two points: 1. If RIPE had not cooperated then presumably the order could have been addressed to IANA itself (which is clearly in the USA) and ordering IANA to revoke RIPE's allocations take over RIPE's role (IANA being the source of RIPE's allocations). Another theory is that the RIRs are creations of IANA. Another path could work through ICANN and its (unclear) role (parent-child, sibling, distant cousin... ) of the RIRs. Overall it could be a mess of almost biblical proportions if RIPE was willing to play hard-to-get. The trouble is that over time voluntary cooperation often ossifies into mandatory obedience. 2. The method that seems to be evolving - an internet in which various registration bodies (whether for DNS or IP addresses) become points for the application of pressure by law enforcement (or other kinds of enforcement.) That does not bode well for the net because it can easily give rise to resentments - resentments that we have already seen in the DNS world under ICANN - that create yet another source of pressure to split the internet. It is interesting to consider how this situation might have played out had the IP addresses/blocks in question been in China or Pakistan. --karl--
The jurisdictional issue is fascinating, but it's also worth asking why RIPE had to be ordered to work with ISC and the multinational law enforcement effort aimed at shutting this down. There hasn't been such an order. jaap
On Sun, Nov 27, 2011 at 12:23 PM, Jaap Akkerhuis <jaap@nlnetlabs.nl> wrote:
The jurisdictional issue is fascinating, but it's also worth asking why RIPE had to be ordered to work with ISC and the multinational law enforcement effort aimed at shutting this down.
There hasn't been such an order.
This is the Dutch Police Order, see: http://www.ripe.net/lir-services/member-support/police-order-8-november-2011
jaap _______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large
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> The jurisdictional issue is fascinating, but it's also worth > asking why RIPE had to be ordered to work with ISC and the > multinational law enforcement effort aimed at shutting this > down. > > There hasn't been such an order. > This is the Dutch Police Order, see: http://www.ripe.net/lir-services/member-support/police-order-8-november-2011 And is doesn't say anthing about RIPE-NCC cooperating with ISC. The police just orders that RIPE should freeze the registration. As people have said before, RIPE-NCC is complaining that the wrong law article has been applied by the Dutch police. jaap
Sala, On 11/27/11, Salanieta T. Tamanikaiwaimaro <salanieta.tamanikaiwaimaro@gmail.com> wrote:
On Sun, Nov 27, 2011 at 12:23 PM, Jaap Akkerhuis <jaap@nlnetlabs.nl> wrote:
The jurisdictional issue is fascinating, but it's also worth asking why RIPE had to be ordered to work with ISC and the multinational law enforcement effort aimed at shutting this down.
There hasn't been such an order.
This is the Dutch Police Order, see: http://www.ripe.net/lir-services/member-support/police-order-8-november-2011
While my Dutch is a bit rusty, I don't see ISC mentioned in the order at all. The RIPE NCC signs contracts with LIRs and end-users (people who get Provider Independent space). "Cooperating with ISC" without a legal order would have been a breach of that contract. In other words, ISC asking RIPE NCC to do something to someone else's IP space would be the same as if you or I had asked them to do the same. ISC and the RIPE NCC have a long history of coordination, collaboration and communication. Staff from one org migrate to the other, they both run rootservers and anycast projects, ISC staff attend RIPE meetings, both have staff who work together on DNSSEC, routing and other IETF WGs, etc, etc. I hope it's clear now. -- Cheers, McTim "A name indicates what we seek. An address indicates where it is. A route indicates how we get there." Jon Postel
On Mon, Nov 28, 2011 at 5:15 PM, McTim <dogwallah@gmail.com> wrote:
Sala,
On 11/27/11, Salanieta T. Tamanikaiwaimaro <salanieta.tamanikaiwaimaro@gmail.com> wrote:
On Sun, Nov 27, 2011 at 12:23 PM, Jaap Akkerhuis <jaap@nlnetlabs.nl> wrote:
The jurisdictional issue is fascinating, but it's also worth asking why RIPE had to be ordered to work with ISC and the multinational law enforcement effort aimed at shutting this down.
There hasn't been such an order.
This is the Dutch Police Order, see:
http://www.ripe.net/lir-services/member-support/police-order-8-november-2011
While my Dutch is a bit rusty, I don't see ISC mentioned in the order at all.
At least you can read Dutch, I can't. This is why I think that the coordination mechanisms is interesting. Does the fact that the FBI has an MoU or Agreement with ISC or is authorised by the FBI give the requisite powers to the ISC?
The RIPE NCC signs contracts with LIRs and end-users (people who get Provider Independent space). "Cooperating with ISC" without a legal order would have been a breach of that contract.
Yes, I agree. It will be interesting to watch the developments. Especially in light of how the European Court of Justice views the relevant laws.
In other words, ISC asking RIPE NCC to do something to someone else's IP space would be the same as if you or I had asked them to do the same.
The only difference here is that it is not ISC asking, they are only
acting out the Judge's orders. This brings back the question, whether they have the authority?
ISC and the RIPE NCC have a long history of coordination, collaboration and communication. Staff from one org migrate to the other, they both run rootservers and anycast projects, ISC staff attend RIPE meetings, both have staff who work together on DNSSEC, routing and other IETF WGs, etc, etc.
I hope it's clear now.
Yes it is much clearer now, thanks McTim. :) I am grateful for your explanation. Hope all is well wherever you are?
-- Cheers,
McTim "A name indicates what we seek. An address indicates where it is. A route indicates how we get there." Jon Postel _______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large
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On 11/28/11, Salanieta T. Tamanikaiwaimaro <salanieta.tamanikaiwaimaro@gmail.com> wrote:
At least you can read Dutch, I can't. This is why I think that the coordination mechanisms is interesting. Does the fact that the FBI has an MoU or Agreement with ISC or is authorised by the FBI give the requisite powers to the ISC?
IMO no, bu they can provide "remediation details".
The RIPE NCC signs contracts with LIRs and end-users (people who get Provider Independent space). "Cooperating with ISC" without a legal order would have been a breach of that contract.
Yes, I agree. It will be interesting to watch the developments. Especially in light of how the European Court of Justice views the relevant laws.
Which relevant laws?
In other words, ISC asking RIPE NCC to do something to someone else's IP space would be the same as if you or I had asked them to do the same.
The only difference here is that it is not ISC asking, they are only
acting out the Judge's orders. This brings back the question, whether they have the authority?
I would say no, the only party that has any standing with the RIPE NCC is the Dutch police IMO. -- Cheers, McTim "A name indicates what we seek. An address indicates where it is. A route indicates how we get there." Jon Postel
Yes, I agree. It will be interesting to watch the developments. Especially in light of how the European Court of Justice views the relevant laws.
Which relevant laws?
*Analysis of relevant European Law*
“In the famous Costa-Enel case (6/64) the Court of Justice of the European Community has ruled that European law is an integral part of the national legal system of the EC member countries and takes precedence over national law. Therefore one cannot fully ascertain the applicable law without researching the relevant European law[1]<file:///C:/Documents%20and%20Settings/s.tamanikaiwaimaro/My%20Documents/Connect/Impact%20of%20New%20York%20decision%20on%20RIRs%20all%20over%20the%20world%20and%20considerations%20for%20Connect.doc#_ftn1>”. *European Ministerial Declaration on the Management of the Internet Protocol Address Resources in the Public Interest* The Declaration of the Committee of Ministers on the management of the Internet protocol address resources in the public interest (Adopted by the Committee of Ministers on 29 September 2010 at the 1094th meeting of the Ministers' Deputies)[2]<file:///C:/Documents%20and%20Settings/s.tamanikaiwaimaro/My%20Documents/Connect/Impact%20of%20New%20York%20decision%20on%20RIRs%20all%20over%20the%20world%20and%20considerations%20for%20Connect.doc#_ftn2> is relevant. […]Paragraph 11 of the Ministerial Text where the Committee of Ministers, therefore, declares the following:- *- Internet protocol address resources should be regarded as shared public resources and allocated and managed in the public interest by the entities entrusted with these tasks, taking into account the present and future needs of Internet users; * *Prioritisation of Rights* *European Court of Justice* Recently the European Court of Justice ruled that EU law precludes the imposition of an injunction by a national court which requires an Internet Service Provider (ISP) to install a filtering system with a view to preventing the illegal downloading of files in a Press Release[3]<file:///C:/Documents%20and%20Settings/s.tamanikaiwaimaro/My%20Documents/Connect/Impact%20of%20New%20York%20decision%20on%20RIRs%20all%20over%20the%20world%20and%20considerations%20for%20Connect.doc#_ftn3>. The actual Judgment was released on the 24th November, 2011[4]<file:///C:/Documents%20and%20Settings/s.tamanikaiwaimaro/My%20Documents/Connect/Impact%20of%20New%20York%20decision%20on%20RIRs%20all%20over%20the%20world%20and%20considerations%20for%20Connect.doc#_ftn4> . Actually the significance of this Judgment is in relation to how they dealt with the prioritisation of rights, that is the rights if intellectual property owners, the rights of ISPs to conduct their business freely, the freedom to receive and impart information and the rights of consumers to privacy. "The injunction requiring installation of the contested filtering system involve a systematic analysis of all content, [ISPs cannot afford this and at the end of the day, this cost would be borne by customers somehow] and the collection and identification of users' IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified". (Highlighted portion is mine) The consideration in how the Judges arrived at their decision is on [para 52, 53] where there is no guarantee that lawful content would not be blocked. After considering all the rights stemming from the Directives listed in para 55, the courts held in favour of "privacy" of consumers that is fundamental rights trumping when reading all of the Directives together. Although the European Court of Justice recommended that harmonization take place. *European Court of Human Rights* Two interesting cases from the European Court of Human Rights include the following:- 1. Case of Klass and Others v. Germany[5]<file:///C:/Documents%20and%20Settings/s.tamanikaiwaimaro/My%20Documents/Connect/Impact%20of%20New%20York%20decision%20on%20RIRs%20all%20over%20the%20world%20and%20considerations%20for%20Connect.doc#_ftn5>(a leading case, 1978) ; 2. Case of the Association for European Integration and Human Rights and Ekimdzhiev V. Bulgaria[6]<file:///C:/Documents%20and%20Settings/s.tamanikaiwaimaro/My%20Documents/Connect/Impact%20of%20New%20York%20decision%20on%20RIRs%20all%20over%20the%20world%20and%20considerations%20for%20Connect.doc#_ftn6>. see: More information on Article 8 can be found in the fact sheet / summary provides an overview of Article 8 case law[7]<file:///C:/Documents%20and%20Settings/s.tamanikaiwaimaro/My%20Documents/Connect/Impact%20of%20New%20York%20decision%20on%20RIRs%20all%20over%20the%20world%20and%20considerations%20for%20Connect.doc#_ftn7> . ------------------------------ [1]<file:///C:/Documents%20and%20Settings/s.tamanikaiwaimaro/My%20Documents/Connect/Impact%20of%20New%20York%20decision%20on%20RIRs%20all%20over%20the%20world%20and%20considerations%20for%20Connect.doc#_ftnref1> http://www.llrx.com/features/dutch2.htm [2]<file:///C:/Documents%20and%20Settings/s.tamanikaiwaimaro/My%20Documents/Connect/Impact%20of%20New%20York%20decision%20on%20RIRs%20all%20over%20the%20world%20and%20considerations%20for%20Connect.doc#_ftnref2> https://wcd.coe.int/ViewDoc.jsp?id=1678299&Site=CM&BackColorInternet=C3C3C3&... [3]<file:///C:/Documents%20and%20Settings/s.tamanikaiwaimaro/My%20Documents/Connect/Impact%20of%20New%20York%20decision%20on%20RIRs%20all%20over%20the%20world%20and%20considerations%20for%20Connect.doc#_ftnref3> http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-11/cp110126en.p... [4]<file:///C:/Documents%20and%20Settings/s.tamanikaiwaimaro/My%20Documents/Connect/Impact%20of%20New%20York%20decision%20on%20RIRs%20all%20over%20the%20world%20and%20considerations%20for%20Connect.doc#_ftnref4> http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=Submit&numaff=C... [5]<file:///C:/Documents%20and%20Settings/s.tamanikaiwaimaro/My%20Documents/Connect/Impact%20of%20New%20York%20decision%20on%20RIRs%20all%20over%20the%20world%20and%20considerations%20for%20Connect.doc#_ftnref5> http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695387&por... [6]<file:///C:/Documents%20and%20Settings/s.tamanikaiwaimaro/My%20Documents/Connect/Impact%20of%20New%20York%20decision%20on%20RIRs%20all%20over%20the%20world%20and%20considerations%20for%20Connect.doc#_ftnref6> http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&hi... [7]<file:///C:/Documents%20and%20Settings/s.tamanikaiwaimaro/My%20Documents/Connect/Impact%20of%20New%20York%20decision%20on%20RIRs%20all%20over%20the%20world%20and%20considerations%20for%20Connect.doc#_ftnref7> http://www.echr.coe.int/NR/rdonlyres/4FCF8133-AD91-4F7B-86F0-A448429BC2CC/0/FICHES_Protection_des_données_EN.pdf
In other words, ISC asking RIPE NCC to do something to someone else's IP space would be the same as if you or I had asked them to do the same.
The only difference here is that it is not ISC asking, they are only
acting out the Judge's orders. This brings back the question, whether
they
have the authority?
I would say no, the only party that has any standing with the RIPE NCC is the Dutch police IMO.
I agree -- Cheers,
McTim "A name indicates what we seek. An address indicates where it is. A route indicates how we get there." Jon Postel _______________________________________________ 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
-- Salanieta Tamanikaiwaimaro aka Sala Tweeter: @SalanietaT Skype:Salanieta.Tamanikaiwaimaro Cell: +679 998 2851
Hi Sala, On 11/28/11, Salanieta T. Tamanikaiwaimaro <salanieta.tamanikaiwaimaro@gmail.com> wrote:
Yes, I agree. It will be interesting to watch the developments. Especially in light of how the European Court of Justice views the relevant laws.
Which relevant laws?
*Analysis of relevant European Law*
None of the citations apply to IP address distribution, which is what I thought we were talking about in this thread. The EU does have some legislation about IP addresses not being personally identifiable data IIRC. -- Cheers, McTim "A name indicates what we seek. An address indicates where it is. A route indicates how we get there." Jon Postel
None of the citations apply to IP address distribution, which is what I thought we were talking about in this thread.
Basically the context in which I was providing those examples are one where to forecast how the Courts are going to rule on a decision, one has to examine how the laws will be treated. The Council of Europe views IP addresses as shared public resources to be allocated and managed in the public interest. I then pointed to the manner in which the ECJ approached the prioritisation of rights and interests etc. The two cases that were provided show the tests (Article 8) and are useful reading. Happy to skype and discuss at a mutually convenient time and happy to hear your perspective.
The EU does have some legislation about IP addresses not being personally identifiable data IIRC.
-- Cheers,
McTim "A name indicates what we seek. An address indicates where it is. A route indicates how we get there." Jon Postel _______________________________________________ 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
-- Salanieta Tamanikaiwaimaro aka Sala Tweeter: @SalanietaT Skype:Salanieta.Tamanikaiwaimaro Cell: +679 998 2851
The jurisdictional issue is fascinating, but it's also worth asking why RIPE had to be ordered to work with ISC and the multinational law enforcement effort aimed at shutting this down.
Bret
I was reading up on the effect of international law and European law, I
came across this:
“In the famous Costa-Enel case (6/64) the Court of Justice of the European Community has ruled that European law is an integral part of the national legal system of the EC member countries and takes precedence over national law. Therefore one cannot fully ascertain the applicable law without researching the relevant European law”. See: http://www.llrx.com/features/dutch2.htm
*European Ministerial Declaration on the Management of the Internet Protocol Address Resources in the Public Interest*
Firstly, Declaration of the Committee of Ministers on the management of the Internet protocol address resources in the public interest (Adopted by the Committee of Ministers on 29 September 2010 at the 1094th meeting of the Ministers' Deputies) is available via https://wcd.coe.int/ViewDoc.jsp?id=1678299&Site=CM&BackColorInternet=C3C3C3&...
I would invite you to pay particular attention to para 11 of the Ministerial Text where the Committee of Ministers, therefore, declares the following:-
*- Internet protocol address resources should be regarded as shared** public resources and allocated and managed in the public interest by the entities entrusted with these tasks, taking into account the present and future needs of Internet users;
- timely and effective deployment of IPv6 in the public sector should be ensured and swift preparations for migration to and deployment of IPv6 in the private sector should be encouraged and promoted;
- as appropriate, identification features incorporated into Internet protocol addresses that are assigned to Internet users or devices connected to the Internet should be regarded and treated as personal data.***
M. Mueller, M. V. Eeten and B Kuerbis in their blog post that was posted in the original thread of this discussion stated the following, “So not only did the Order come from a foreign jurisdiction but, ironically, RIPE-NCC, which is run by people who insist that IP addresses are not property, was served with a legal order that seems to classify addresses as property” did not consider the Ministerial Text above where at least for the Europeans IP address resources should be regarded as shared “public resources”.
To read other Declarations and recommendations, visit: http://www.coe.int/t/dghl/standardsetting/media/Doc/CM_en.asp
*Prioritisation of Rights*
*European Court of Justice*
There are some interesting developments by the European Court of Justice on the prioritisation of rights, which James S Tyre had alerted the At Large List (during the debate on the thick Whois vrs thin Whois discussions/debates) where EU law precludes the imposition of an injunction by a national court which requires an Internet Service Provider (ISP) to install a filtering system with a view to preventing the illegal downloading of files, see the Press Release: http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-11/cp110126en.p... The actual Judgment that was just released on the 24th November, 2011 is available here: http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=Submit&numaff=C...
Actually the significance of this Judgment is in relation to how they dealt with the prioritisation of rights, that is the rights if intellectual property owners, the rights of ISPs to conduct their business freely, the freedom to receive and impart information and the rights of consumers to privacy. "The injunction requiring installation of the contested filtering system involve a systematic analysis of all content, [ISPs cannot afford this and at the end of the day, this cost would be borne by customers somehow] and the collection and identification of users' IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified". (Highlighted portion is mine)
The consideration in how the Judges arrived at their decision is on [para 52, 53] where there is no guarantee that lawful content would not be blocked. After considering all the rights stemming from the Directives listed in para 55, the courts held in favour of "privacy" of consumers that is fundamental rights trumping when reading all of the Directives together. Although the European Court of Justice recommended that harmonization take place.
*European Court of Human Rights*
Two interesting cases from the European Court of Human Rights are:
Case of Klass and Others v. Germany (a leading case, 1978) see:
http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695387&por...
Case of the Association for European Integration and Human Rights and Ekimdzhiev V. Bulgaria, see:
http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&hi...
The following fact sheet / summary provides an overview of Article 8 case law:
-- Salanieta Tamanikaiwaimaro aka Sala Tweeter: @SalanietaT Skype:Salanieta.Tamanikaiwaimaro Cell: +679 998 2851
participants (7)
-
Bret Fausett -
Jaap Akkerhuis -
James S. Tyre -
John R. Levine -
Karl Auerbach -
McTim -
Salanieta T. Tamanikaiwaimaro