[governance] Fwd: Fwd: Fwd: [Members] US District Court for DC - IRAN/SYRIA - ICANN

Sun Jul 6 07:59:55 EDT 2014

I thought this posting on another list may be useful to the discussion 
on the IGC thread  "Some more legal tangles for ICANN"
regards,
Guru

-------- Original Message --------
Subject: 	[Members] US District Court for DC - IRAN/SYRIA - ICANN
Date: 	Mon, 30 Jun 2014 13:14:12 +0200
From: 	Jean-Christophe NOTHIAS I The Global Journal 
<jc.nothias at theglobaljournal.net>
Reply-To: 	members at justnetcoalition.org
To: 	Member Just_Net_Coalition <members at justnetcoalition.org>

Dear JNC members,

I thought I would wrap-up some facts and appreciation of a new case 
where Plaintiffs have requested the US District Court for the district 
of Columbia to turn to ICANN in order to seize whatever money, property, 
credit IRAN and Syria have at ICANN. This is a 'first', and worth to be 
looked at. Even though we are not legal expert for US law, it is a very 
interesting issue to look at in an Internet Governance perspective. Like 
anything related to US law and jurisdiction, this might take years 
before a conclusion can be reached -  right now these judgements have 
been made by default as Iran and Syria did not show up to the Court to 
defend themselves. Still the case is showing that the asymmetric role of 
the US in terms of Internet Governance is under critical challenge. It 
also shows that much of what is related to the management of the root 
zone (address book for the dot_something (.XYZ) is still missing 
international definition and agreements. This is part of the fact that 
IG has been into US hands, at least under the current form since 1998 
when ICANN was incorporated and when Jon Postel's job at the root zone 
level was doing until then through IANA was also transfer to ICANN under 
the same acronym. The new IANA became part of the ICANN that same year 
Being an 'authority' and a 'department' of ICANN, IANA has no bylaws but 
is under strict supervision of the US Department of Commerce, through 
NTIA. Nothing can be change at the root zone level for TLDs (gTLDs or 
ccTLDs) without the consent of the US DoC. This helps to understand by 
the same token the role of IANA, as a department of ICANN under a double 
US oversight, ICANN being itself under contract with the US DoC.

Some debate took place into the IGC list, and I would start from there.

1_
It started here
http://www.timesofisrael.com/israeli-us-terror-victims-now-own-irans-internet/

2_
A subscriber to the Civil Society Governance Caucus- IGC elist (Joly 
McFie) wrote on June 25:

"ICANN licenses the TLDs to different world governments who then are 
permitted to appoint agents who sell the domain names and their country 
specific internet suffixes to individuals, businesses and organizations."

1/ Is this strictly true?
2/ Does ICANN have a licence over ccTLDs?

Some honorable subscribers of the IGC list reacted, among others:

 From Daniel Kalchev
/- most ccTLDs were delegated before ICANN was even an idea and most 
ccTLDs managers are in fact not been appointed by any government./
/- After all, Internet was, is and will be an worldwide private network./

 From Wolfgang Kleinwächter:
/- This is nonsense. The author of this piece does not understand, how 
the DNS works. /

 From McTim:
/- This won't go anywhere... Just a lawyer trying to get attention for 
his case./
/- The fees paid to ICANN from Iran are exactly zero./
/
/
3_
/
Then I posted On June 28 to the same IGC list the following information:

Here are the 6 "Writs of Attachment 
<https://docs.google.com/file/d/0B_dOI5puxRA9M3hweE9Eel9mVTQ/edit?pli=1>" (5 
  vs IRAN; 1 vs Syria) as of June 24, 2014, notified to ICANN/IANA by 
the US District Court for the District of Columbia.

So no "if" and no "apparently" as some doubted on the list.

4_
There would be postings with opposing views, ones saying that there was 
nothing to worry about - ICANN would simply answer 'no'- and others 
saying that this was critical issue for the first-level domain for 
countries (ccTLD: country-code for Top Level Domain).

5_
/
First, to be frank,  I would say that I was a bit disappointed with the 
comments on the IGC list. Some participants were supposedly able to 
provide a better perspective on the case. For example, /
I believe that Wolfgang Kleinwächter, specially since he is working at 
ICANN, should have provided a better answer to Joly's question. "Non 
sense" means little if nothing. Sharing and distributing understanding 
is always worth the effort.
/
/

Daniel is quite right in his first assumption (Jon Postel did most of 
the delegation work prior to the NewCo ICANN/IANA, established in 1998). 
I would not be overly certain that the majority of ccTLDs mangers are 
not being appointed by governments. That could be investigated. A ccTLD 
being considered by governments as part of their "national sovereignty" 
I would challenge this assertion. National realities are often more 
subtile. More of a concern in my view is Daniel's idea of a "*worldwide 
private network*". This has little if no reality. Networks belong to 
Telecom Operators for the largest part, some being *public*, some 
*private* (under governmental regulations). Autonomous Systems do also 
belong to *public* or *private* entities. What can be seen as 
*worldwide* is "*interconnectivity*" - one can say that nobody owns the 
Interconnectivity, something essentially untrue when we speak of 
'Internet'. A "*private*" thing? I do not see anything else than a 
*public space* here, where *private* *interests* might indeed be *dominant*.

McTim underestimates the "where" the Court request is leading. A simple 
"no" by ICANN/IANA/NTIA would not be the end for the US District Court 
to act.
McTim is right about the fact that Iran and Syria pay no fees to ICANN, 
but still this does not evacuate the idea, as per the Court appreciation 
and own view, that a ccTLD has great value. McTim has acknowledged this 
fact.

Back to Joly's "ICANN Licenses the ccTLDS..." Strictly true? ICANN 
having a license over ccTLDs

IANA, which is not an incorporate non profit, is a "/department of 
ICANN/". It is an 'authority' with no legal ground, no bylaws in the US, 
nor any International recognition. Still it has quite many 
responsibilities. One major constraint for ICANN/IANA regarding the root 
zone is that nothing can be changed in the root zone file without an 
approval by DoC (through NTIA).
The new IANA (part of the new ICANN) has taken over the continuity of 
handling the delegation 
<https://www.icann.org/resources/pages/delegation-2012-02-25-en> of the 
ccTLDs to registries since Jon Postel died in 1998, days before ICANN 
was incorporated with Vint Cerf as first president. By then IANA was 
funded by the US Department of Defense. We should all remember that 
Postel came to Geneva in 1997 where he intended to establish a non 
profit, with an international recognition from governments, a non profit 
that would handle the civilian root zone for the planet. His project was 
opposed by US diplomats in Geneva at the time.

So to anwser Joly: *Yes, IANA, a department of ICANN delegates (the verb 
to license would not be strictly right) each ccTLD to a unique 
entity/registry, but only after the US DoC approval. IANA is also 
responsible for re-delegation.*

In the case of IRAN, the unique registry that has received the 
delegation to handle the ".IR" ccTLD is THE INSTITUTE for RESEARCH in 
FUNDAMENTAL SCIENCES, based in IRAN, and affiliated with the Iranian 
Ministry of Science, Research, and Technology founded in 1989 under the 
name of INSTITUTE for STUDIES in THEORETICAL PHYSICS and MATHEMATICS - 
this tends to document the fact that the registry for .IR 
is legitimate part of the state of IRAN. What can the US District Court 
do about this? Ask for the plaintiffs to become the unique registry for 
.IR? The new registry would then earn money thanks to the Iranian 
registrars that would keep using the .IR. Not a bad deal.

What would IANA consider as a possible reason to terminate the 
delegation of the .IR? If we look at what ICANN considers as a possible 
reason to terminate a registrar accreditation agreement 
<https://www.icann.org/resources/pages/ra-agreement-2009-05-21-en> (see 
5.3 of the Registrar Accreditation Agreement, even though it does not 
seem to have its equivalent with registries). But who said that this 
could not happen when it comes to a registry issue? Again, in the 
absence of an international treaty clarifying many obscure points in 
terms of root zone policy, the many vacuums could be of great amusement 
to a US District Court. Again, that brings a very serious challenge to 
the global, transnational governance of the Internet. ICANN is now in a 
poor situation. Would ICANN give way to the US District Court request, 
many countries would take the opportunity to fully challenge ICANN in 
its fundaments. Would ICANN pass the hot potato to someone else (US DoC? 
IRFS, the Iranian registry? Nobody?) the Court might not like that 
answer, and might threatened ICANN to comply. We'll see.

Still we have a pending question: what difference should be made between 
"to license" and "to delegate" a ccTLD?

Nobody really owns a domain name, and there are many indications that it 
could considered in the same way for TLDs. A TLD or domain name 
'holder'/'tenant' pays a 'lease' for a domain. If the .COM is the 
property of ICANN or DoC, then .IR would then be the property of its 
current tenant. As with any lease, it can end if not renewed or be 
terminated by the delegating authority (if nobody is ultimate owner). So 
we definitely have a situation that isnot clear, as a domain name is 
still not a property but holds intellectual property rights, turning it 
into a very valuable asset. You do not own the domain, you own the right 
to use it. This still means that any TLD has a commercial value, 
including ccTLDs, and is therefore an asset and subject to a Court 
sequestration warrant or redelegation request. And in this case, the 
judge is not asking for the moon, I would say.

Here is an excellent work funded by the US National Science Foundation 
and ITU related to "Policy, Business, Technical and Operational 
Considerations for the Management of a country code Top Level Domain 
(ccTLD) drafted in 2008. It is an interesting document 
<http://www.itu.int/ITU-D/cyb/ip/docs/itu-draft-cctld-guide.pdf>.

Regarding a possible redelegation, read what 
<http://www.iana.org/reports/2005/iq-report-05aug2005.pdf> happened to 
the .IQ (IRAK) in 2005. It's a IANA report worth to read. See again the 
role played by the US DoC and NTIA. Without putting in a US District Court.

All of that is not limited to the respective unique registries for IRAN 
and SYRIA (both countries are concerned with the US District Court of 
Columbia writs). The Writ has no limitation, quite to the contrary. Who 
said that the link between Iranian registrars and ICANN did not exist. 
  There are much more than the first-level domain (ccTLD) to be 
considered such as the second-level domain registration by 
registrars. What's about IPs? All of that enters into IANA, a department 
of ICANN, duties and performance.

So apart from trying to predict with little to no chance the outcomes 
for this case, we see that in this situation the current state of 
Internet Governance is far from comfortable. So a lot of work to be 
done. Again we see that without clear definition, and international 
agreements, it will be difficult to find trust, clarity and democratic 
values.

Comments are very welcome.

Thanks
/
Jean-Christophe Nothias

/Chief Strategist,/
/Contents and Projects
/
(+41) 79 265 92 75
jc.nothias at globalgeneva.net <mailto:jc.nothias at globalgeneva.net>
@jc_nothias

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