[governance] FW: TP: city government exercising policy on Google Applications / consumer rights / Consumer Protection Act / trial period

[Paul Lehto]

On 7/13/11, Kerry Brown <kerry at kdbsystems.com> wrote:
> Phillippe
>
> Thanks for the thoughtful response, You are more optimistic than I on how
> bureaucracies work.

Kerry, according to your company's website, you are appointed to a
private bureaucracy called CIRA, the Canadian Internal Regulation
Authority (CIRA).

CIRA took over Canadian domain name registration from the University
of British Columbia in 2000, and operates as a private nonprofit
corporation.   CIRA has its own judicial system via arbitration, and
when a complaint is filed with one of the providers selected by CIRA
the Registrant of the domain "must submit" to the CIRA-authorized
arbitration process.  Anyone owing a CIRA provider money from a past
arbitration is barred from filing any actions until paid no matter how
meritorious the action may be, a policy that doesn't apply in any
governmental court system that I know of.  Regarding any CIRA
arbitration, the Provider may not supplement the rules set forth by
CIRA (  ), and neither the Complainant nor the Respondent will be
allowed to argue that any foreign or domestic laws or legislation
should be considered in a CIRA-authorized arbitration, and even the
Provider, Complainant and Respondent combined lack the power to amend
or waive a CIRA rule:  only the written express permission of CIRA can
do that. See para. 1.2 & 1.7 at
http://www.cira.ca/assets/Documents/Legal/Dispute/CDRPrules.pdf  CIRA
rules state that no in-person hearing is allowed, not even a telephone
conference or a chat room, unless the Provider alone finds it
necessary.


While appeal from a CIRA arbitration to a court may be allowed, it
nevertheless appears clear from the above that CIRA has set up its own
private bureaucratic judicial system with panels of arbitrators so
that parties have to pay not only for lawyers but for the judges
(arbitrators) as well (Three of them, often), and as regards
procedural rights, CIRA has specified that democratically-based laws
simply do not apply, whether they be foreign laws or domestic laws.

My question is this:  When you say that bureaucracies don't work, are
you referring to the private bureaucracy of CIRA in its judicial (or
other) capacity, or do you see CIRA as a competitor with governments
in terms of providing dispute resolution rules and forums related to
internet domain names?

> My objections to going forward with such a treaty are more philosophical
> than the details of how such a treaty would work. In general for such a
> treaty to work there would need to be a mechanism to identify and track each
> and every user on the Internet. I am philosophically opposed to that.

Does CIRA track the whereabouts of all 1.5 million .ca registrants?
Does it require an up to date admin contact and physical address so
you can track the whereabouts of all 1.5 million canadian registrants?
  Have you made a record of your philosophical opposition to CIRA
tracking internet users in this way?

> Such a
> mechanism could too easily be subverted for other uses. This will probably
> happen anyway but I will oppose it wherever I can.

Alas, CIRA uses admin contacts to provider for valid service of
CIRA-authorized lawsuit arbitrations.  I'll bet domain name
registrants providing admin contact information didn't expect in their
wildest dreams that that information would be used to perfect service
of process on them before an arbitral court system that they "must
submit" to, and be stripped of all procedural rights, foreign or
domestic, in their submission.  Thus, I agree you are correct that
information, once obtained, can be used or subverted for collateral
purposes.

> The Internet is
> fundamentally changing the way we think of IP. My belief is eventually there
> will be no such thing as IP. We will be back to a time where ideas are
> freely passed between people as in a stranger shows up at the campfire and
> shows the locals how to make a better arrowhead or a new hunting chant.

Patents are a form of IP and as of late they are widely described as a
new form of currency or money.  Many information-based corporations
claim balance sheets in which IP is 50% or more of the company's
value.  For a couple decades we've been heading quickly into a world
in which IP is money itself, so I have to admit to a strong degree of
skepticism that we are heading toward a world in which IP is as free
as a caveman showing how to make a better arrowhead.  Those with all
the money simply won't allow that to happen.

> And yes, I agree, as long as money is changing hands someone will be trying
> to tax it. If that tax will be accepted by the constituents is a different
> matter.

The CIRA arbitration providers are authorized by CIRA to tax costs
against any party, which if unpaid is both a legally enforceable debt
as well as a bar against filing any CIRA arbitrations no matter how
justified.  (Unscrupulous domain holders can take advantage here if
their victim doesn't have enough money to pay CIRA's provider and thus
can't file for a domain name arbitration.)

> The tax issues are important but to my mind the fact that a country that
> professes to be one of the freest countries in the world is considering this
> is a far more important issue. My fear is that governments will use issues
> like taxation to justify loss of freedom on the Internet.

Canada may do such a thing, but more likely will not.  In contrast,
CIRA arbitrations have already created, in reality, a private judicial
arbitration system whereby (1)  anybody hauled into such an
arbitration loses all of their procedural rights, foreign or domestic,
(see para 1.7 at http://www.cira.ca/assets/Documents/CDRPpolicy.pdf )
and (2) has to pay for the judge-arbitrators as well as for any costs
taxed to them or any damages awarded in a CIRA-enabled arbitration
system, not to mention their own lawyer, if they can afford one.
Anybody who has a problem with any of these brave-new-legal-world
rules can't change them, even if their litigation opponent agrees,
without "the express written consent of CIRA."

Personally, I'm much more worried about what is forced upon people
TODAY by private ("nonprofit") corporations, than what might someday
possibly be done by an elected democratic legislature in Canada or
anywhere else.

Paul Lehto, J.D.

-- 
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-4026 (cell)
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