2009/10/5 Kim Davies <kim.davies@icann.org>
It is presumptuous and meddling of ICANN to determine that any body within a country has equal decision-making authority to the sovereign government of that country, or that an impass between them may allows the status quo to continue in contravention of sovereign law or regulation.
Hang on a moment. We are not talking about the situation where a country has a specific law on the books. In such cases, the government has the remedies available to it within the country to enforce those laws.
Not if ICANN stands in its way. And it doesn't matter whether the government's assertion of ownership of its ccTLD is by law, executive decree, or administrative edict. So long as a government (or government agency) can demonstrate that it has the state-designated authority ovet the ccTLD, it had primary rights. That's it. We are talking about the situation where some element of a government is
expressing opinion on how the domain should be run.
An opinion on how it should be run is an opinion. I'm talking about a government saying "we have the exclusive right to determine -- by contract or otherwise -- who may run the ccTLD". Whether the government is allowed to meddle is up to the reationship it has established with its ccTLD operator. If there is no formal relationship with the government, the government has every right to declare the existing operator's authority to run it null and void **IF** it can designate a stable and secure alternative. As you say, this is complicated if "the government" is speaking with multiple conflicting voices, that is the ONLY time that anything has to be "sorted out". But if the state speak with one voice, ICANN must listen and follow.
ICANN has erred -- seriously -- in identifying an "Internet community" as being distinct from the general public when it comes to policy making. In most
s/general public/government/, no? Or are you saying the general public is
equal to the government?
I am saying that, even in non-democratic regimes, a government represents the interest of its (Internet-using) publlc more than its "Internet community" ever will. The "Internet community" in a country the "Internet community" may contain some publicly-minded NGOs; however it is more likely to be loaded with consultants, ISPs, registrars and "experts" with vested interests in specific models that are not necessarily in the public interest. In every case the "Internet community" in a country can be more easily gamed than the government. And anyway, it is not in ICANN's mandate to determine whether anyone beyond the government expresses the will of the State. It is extremely dangerous for ICANN to assert that it knows better than a government what's best for its country, beyond purely technical oversight. ICANN is within its rights to refuse transfer of a ccTLD to a "registry" just started by the Supreme Leader's cousin. However,ICANN *must* cede to a state demand that an existing ccTLD squatter transfer authority to a *stable* registry of the government's choosing.
Can you imagine the absolute outrage that would ensue if ICANN adopted the same approach towards trademark squatters? "We will allow the status quo to stand until the domain owners work it out with the name owners". Yeah, right. If anything, the trademark lobby is pushing for even more draconian, faster takedowns than before. Yet for ccTLDs, "they gotta work it out". What a joke.
Most people seem to agree that ccTLD disputes are to be sorted out in the
country.
I reject your assertion, unless you just mean "most people that you hear from". It stands to reason that the vested interests would assert their squatters' rights to ICANN, but that the general public (which is uninterested or ignorant of ICANN policy) is silent to you. Consider that this is the first time you've participated in this At-Large list on the subject, and I don't see many here rushing to defend the position of letting governments and ccTLD squatters "sort it out". So far, 100% of the opinion I've seen here -- from people who are not ICANN staff -- is that the government has primary rights and there is nothing to "sort out". I would think that the GAC would concur. However, the contracted parties and vested interests would be loudest to defend the squatters' rights, which may be the primary source of the people you hear from within the ICANN cocoon. So the "most people" assertion fails because, so far in this forum free of vested interests, it's simply and provably untrue. In any case, you've deliberately ignored the embarrassing comparison between how ICANN treats the rights of public governments vs private trademark holders. - Evan