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<font face="Verdana">Lee<br>
<br>
Two response to the below about what you see as mitigating
circumstances with regard to the anomaly of US holding
jurisdictional control over Internet's root :<br>
<br>
One, that in other cases, good EU laws help the privacy situation
in the US, in what could be seen as an extra jurisdictional
influence/ application. However, you are missing an important
point here. There is no cosmic force which ensures that good laws
have greater flow and impact across jurisdictions and bad laws,
the opposite. No, it is not that way. So how is it? Laws backed by
jurisdictions that have market/ economic muscle have considerable
degree of cross-jurisdictional influence in today's closely
connected world. There one political influence in this way is
directly linked to ones economic means. This, I hope, you will
agree is not a good thing. The best FoE and privacy laws of say
Ghana would have absolutely no cross jurisdictional impact. <br>
<br>
Democracy, one of the most basic of human rights, is premised on
political equality of all people - one person, one vote, not one
million dollar, one vote, principle. So, the example of EU laws
that you proffer may perhaps delight a (democratically unthinking)
EU mind, but it is not like giving good leads to what would be a
democratic and just global order. <br>
<br>
On the second logic that you give, that ICANN under any
jurisdiction would be subject to national jurisdictional whims and
vagaries: <br>
<br>
One, the case being made is for ICANN to be subject to
international law and jurisdiction and not any national law/
jurisdiction. It is rather much easier than most people make out
here.<br>
<br>
Second, US has one of the worst global record of dis-regarding
global opinion on matters that it sees as serving its national
interest. Therefore it is is any case one of the worst possible
jurisdictions to leave the Internet root in. Many people for
instance have argued that Switzerland would be a much better
custodian, even in the interim as international legal framework
for the Internet's root is being evolved. <br>
<br>
I consider the arguments that you are giving simply as lazy status
quo-ist arguments.<br>
<br>
parminder <br>
<br>
<br>
</font>
<div class="moz-cite-prefix">On Monday 04 August 2014 04:24 AM, Lee
W McKnight wrote:<br>
</div>
<blockquote
cite="mid:a8ce3c8ab2dc4efc8c97c73b09608e69@EX13-MBX-07.ad.syr.edu"
type="cite">
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<div style="font-size: 12pt; color: #000000; background-color:
#ffffff; font-family: calibri,arial,helvetica,sans-serif;">
<p>A few comments to wade in for a moment:</p>
<p><br>
</p>
<p>- IGC co-founder YJ Park's excellent doctoral thesis some
years back on 'ccTLDs between State and Market' provided
quite a bit of info on that balance and its historical
evolution by ccTLD. Of course there are many current sources
of info as others have noted. Summarizing admittedly without
doing new research myself, I think it would be fairer to say
that by now most all ccTLDs have an accommodation with, even
if they are not operated by, a government agency. And,
ccTLDs are more or less market-oriented almost irrespective
of the legal form of the operator.<br>
</p>
<p><br>
</p>
<p>- Second point, not to speak ill of the heroic, but for the
historical record it was a '97? Postel aka IANA aka ISOC
back in the pre-ICANN days + International Trademark
Association + ITU (et.al.) discussion which led to the
abortive Geneva plans. At least to my eyes that was not
quite the idyllic triumvirate for an alternate present of
global Internet peace and harmony, if not for that dastardly
USG intervention leading to ICANN's creation, that some may
wistfully wish to recall. Since clearly intellectual
property - management - was going to be part of that future,
one way or another.<br>
</p>
<p><br>
</p>
<p>Third point, Daniel is 1000% correct re Internet as an
amalgam of interconnected private networks.<br>
</p>
<p><br>
</p>
<p>Last point, legal - conflict of laws - over transborder
data flows are far from a new phenomenon, rather they have
been the subject of endless discussions, debates and more
than a few treaties from the 1960s to the present.</p>
<p>(And yes I am not a lawyer, but occasionally play one on
the Internet; and ok worked and studied at the Max Planck
Institut fuer Auslaendisches und Internationales Privatrecht
back in my prehistoric doc student days.) That the data
crosses the world on the Internet, does not hugely change
the legal treatment of - someone's data in case of a legal
conflict. So my pedantic review for those new to this:</p>
<p><br>
</p>
<p>In general, domestic -commercial - law trumps international
law, except in circumstances where - the state - has
explicitly agreed to be bound by treaty obligations which it
has pledged to uphold.</p>
<p><br>
</p>
<p>In the case of data protection and privacy, generally
speaking, it is European law and Eu directives which have
the greatest international impact, as firms doing business
in Europe must promise to protect data (on EU citizens) to
the EU standard, wherever that data sits. For many of the
biggest multinationals, managing data protection for EU
citizens differently than they manage data on US or Asian
residents is too much of a bother, so they just follow EU
data protection law on whomever, wherever the data sits.</p>
<p><br>
</p>
<p>Meaning, it is EU law's extraterritorial impact which lends
us here in the US (or in Asia, Latin America, Africa) some
slightly better data protection than might otherwise be the
case.</p>
<p><br>
</p>
<p>So in sum on this point...US is far from the only nation or
region whose legal formulations have international impact;
and second, as in the case of the blanket protection EU
(data protection) law provides essentially to the rest of
the world, it is not necessarily a bad thing when (domestic)
laws do have extraterritorial impact.</p>
<p><br>
</p>
<p>Bringing this all home to present circumstances of the
Iran/Syria etc ccTLDs, it then follows that while moving
ICANN's hq might be valued by many, without a new
international treaty/international org agreement assuring
certain areas of - international law - will override
domestic preferences on certain classes/types of data in
certain circumstances, it would have no impact in an
analagous legal case, whether brought by US courts or those
anywhere else. As I have said in other threads, there is
nothing stopping courts in any other country from doing
similarly stupid things as the US court just did. And
similarly, essentially being lectured to by an ICANN
tutorial on what ICANN - can and cannot do.
<br>
</p>
<p><br>
</p>
<p>Lee<br>
</p>
<p><br>
</p>
<p><br>
</p>
<p><br>
</p>
<p><br>
</p>
<p><br>
</p>
<p><br>
</p>
<div style="color: #282828;">
<hr tabindex="-1" style="display: inline-block; width: 98%;">
<div id="divRplyFwdMsg" dir="ltr"><font style="font-size:
11pt;" color="#000000" face="Calibri, sans-serif"><b>From:</b>
<a class="moz-txt-link-abbreviated" href="mailto:governance-request@lists.igcaucus.org">governance-request@lists.igcaucus.org</a>
<a class="moz-txt-link-rfc2396E" href="mailto:governance-request@lists.igcaucus.org"><governance-request@lists.igcaucus.org></a> on behalf
of Daniel Kalchev <a class="moz-txt-link-rfc2396E" href="mailto:daniel@digsys.bg"><daniel@digsys.bg></a><br>
<b>Sent:</b> Friday, August 1, 2014 4:59 AM<br>
<b>To:</b> <a class="moz-txt-link-abbreviated" href="mailto:governance@lists.igcaucus.org">governance@lists.igcaucus.org</a><br>
<b>Subject:</b> Re: [governance] Fwd: Fwd: Fwd:
[Members] US District Court for DC - IRAN/SYRIA - ICANN</font>
<div> </div>
</div>
<div>There are some interesting points, see my comments
below.<br>
<br>
<br>
<div class="moz-cite-prefix">On 06.07.14 14:59, Guru गुरु
wrote:<br>
</div>
<blockquote type="cite">I thought this posting on another
list may be useful to the discussion on the IGC thread
"Some more legal tangles for ICANN"<br>
regards,<br>
Guru<br>
<br>
-------- Original Message --------
<table class="moz-email-headers-table" cellpadding="0"
cellspacing="0" border="0">
<tbody>
<tr>
<th align="RIGHT" nowrap="nowrap"
valign="BASELINE">Subject: </th>
<td>[Members] US District Court for DC -
IRAN/SYRIA - ICANN</td>
</tr>
<tr>
<th align="RIGHT" nowrap="nowrap"
valign="BASELINE">Date: </th>
<td>Mon, 30 Jun 2014 13:14:12 +0200</td>
</tr>
<tr>
<th align="RIGHT" nowrap="nowrap"
valign="BASELINE">From: </th>
<td>Jean-Christophe NOTHIAS I The Global Journal <a
moz-do-not-send="true"
class="moz-txt-link-rfc2396E"
href="mailto:jc.nothias@theglobaljournal.net">
<jc.nothias@theglobaljournal.net></a></td>
</tr>
<tr>
<th align="RIGHT" nowrap="nowrap"
valign="BASELINE">Reply-To: </th>
<td><a moz-do-not-send="true"
class="moz-txt-link-abbreviated"
href="mailto:members@justnetcoalition.org">members@justnetcoalition.org</a></td>
</tr>
<tr>
<th align="RIGHT" nowrap="nowrap"
valign="BASELINE">To: </th>
<td>Member Just_Net_Coalition <a
moz-do-not-send="true"
class="moz-txt-link-rfc2396E"
href="mailto:members@justnetcoalition.org">
<members@justnetcoalition.org></a></td>
</tr>
</tbody>
</table>
<br>
<br>
Dear JNC members,
<div><br>
</div>
<div>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.</div>
</blockquote>
<br>
The primary issue in this case, is the decision by the USG
to play political games, when they devised this "If you
don't threat your citizens the way we want you to, we will
let them sue you in the US under our own laws and will
'lawfuly' steal your property in the US. So, do as we
say!".<br>
More powerful countries, such as Russia and Brasil (and to
a lesser degree the "western democracy" countries) clearly
told the US they do not care and they would subject US
property in their respective area of control to about the
same process (or worse).<br>
<br>
By creating this procedure, the US has prepared a lot of
Pandora Boxes or Cans of Worms, waiting to be opened..<br>
<br>
As such, it is unfortunate, but quite understandable that
some lawyer decided to drag ICANN into this mess.
Understandable, because ICANN demonstrates it has lots of
money to spend, is a public "shared irresponsibility"
entity etc. Typical target for the typical US lawyer.<br>
<br>
For many reasons, the ICANN processes are a mess. This too
is heaven for lawyers. The good news is the community is
slowly clearing up the mess. The bad news is this is a
very slow process (and ICANN is thus vulnerable for longer
period). The other bad news is there are new incentives at
ICANN that create even more weak points (even if attempts
are made to design them properly).<br>
<br>
Out of everything else, IANA is the most interesting ...
non-entity :)<br>
<br>
<blockquote type="cite">
<div><br>
</div>
<div>Some debate took place into the IGC list, and I
would start from there.</div>
<div><br>
</div>
<div><font class="Apple-style-span" color="#fe2617">1_</font></div>
<div>It started here</div>
<div><a moz-do-not-send="true"
href="http://www.timesofisrael.com/israeli-us-terror-victims-now-own-irans-internet/">http://www.timesofisrael.com/israeli-us-terror-victims-now-own-irans-internet/</a></div>
<div><br>
</div>
<div><font class="Apple-style-span" color="#fe2617">2_</font></div>
<div>A subscriber to the Civil Society Governance
Caucus- IGC elist (Joly McFie) wrote on June 25:</div>
<div><br>
</div>
<div>
<div><font class="Apple-style-span" color="#2098fc">"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."<br>
<br>
1/ Is this strictly true? </font></div>
<div><font class="Apple-style-span" color="#2098fc">2/
Does ICANN have a licence over ccTLDs?</font></div>
</div>
<div><br>
</div>
<div>Some honorable subscribers of the IGC list reacted,
among others:</div>
<div><br>
</div>
<div>
<div>From Daniel Kalchev</div>
<div><i><font class="Apple-style-span" color="#2098fc"><span
class="Apple-tab-span" style="white-space:
pre;"></span>- most ccTLDs were delegated
before ICANN was even an idea and most ccTLDs
managers are in fact not been appointed by any
government.</font></i></div>
<div><i><font class="Apple-style-span" color="#2098fc"><span
class="Apple-tab-span" style="white-space:
pre;"></span>- After all, Internet was, is and
will be an worldwide private network.</font></i></div>
<div><br>
</div>
<div>From Wolfgang Kleinwächter:</div>
<div><i><font class="Apple-style-span" color="#2098fc"><span
class="Apple-tab-span" style="white-space:
pre;"></span>- This is nonsense. The author of
this piece does not understand, how the DNS
works. </font></i></div>
<div><br>
</div>
<div>From McTim:</div>
<div><i><font class="Apple-style-span" color="#2098fc"><span
class="Apple-tab-span" style="white-space:
pre;"></span>- This won't go anywhere... Just
a lawyer trying to get attention for his case.</font></i></div>
<div><i><font class="Apple-style-span" color="#2098fc"><span
class="Apple-tab-span" style="white-space:
pre;"></span>- The fees paid to ICANN from
Iran are exactly zero</font>.</i></div>
</div>
<div><i><br>
</i></div>
<div><font class="Apple-style-span" color="#fe2617">3_</font></div>
<div><i>
<div style="font-style: normal;">Then I posted On
June 28 to the same IGC list the following
information:</div>
<div style="font-style: normal;"><br>
</div>
<div>
<div style="font-style: normal;">Here are the 6 "<a
moz-do-not-send="true"
href="https://docs.google.com/file/d/0B_dOI5puxRA9M3hweE9Eel9mVTQ/edit?pli=1">Writs
of Attachment</a>" (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.</div>
<div style="font-style: normal;"><br>
</div>
<div style="font-style: normal;"><img
id="c95a05a7-43a8-4389-9d95-db039b236810"
alt=""
src="cid:part6.04060208.07080604@itforchange.net"
height="52" width="612"></div>
<div style="font-style: normal;"><br>
</div>
<div style="font-style: normal;">So no "if" and no
"apparently" as some doubted on the list.</div>
<div style="font-style: normal;"><br>
</div>
<div style="font-style: normal;"><font
class="Apple-style-span" color="#fe2617">4_</font></div>
<div style="font-style: normal;">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).</div>
</div>
</i></div>
</blockquote>
<br>
This is good, as if we were all of the same opinion,
sometimes we would be all totally wrong and there would be
no balance to help in cases of disaster.<br>
<br>
<blockquote type="cite">
<div><i>
<div>
<div style="font-style: normal;"><br>
</div>
<div style="font-style: normal;"><br>
</div>
<div style="font-style: normal;"><font
class="Apple-style-span" color="#fe2617">5_</font></div>
<div style="font-style: normal;"><i>
<div style="font-style: normal; display:
inline ! important;">
<div style="display: inline ! important;">
<div style="display: inline ! important;">
<div style="display: inline !
important;">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>
<div style="font-style: normal;
display: inline ! important;">
<div style="display: inline !
important;">
<div style="display: inline !
important;">
<div style="display: inline !
important;">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.</div>
</div>
</div>
</div>
</i></div>
</div>
</div>
</div>
</i></div>
<div>
<div style="font-style: normal;">
<div><br>
</div>
<div>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 "<b>worldwide
private network</b>". This has little if
no reality. Networks belong to Telecom
Operators for the largest part, some being <b>public</b>,
some <b>private</b> (under governmental
regulations). Autonomous Systems do also
belong to <b>public</b> or <b>private</b> entities.
What can be seen as <b>worldwide</b> is "<b>interconnectivity</b>"
- one can say that nobody owns the
Interconnectivity, something essentially
untrue when we speak of 'Internet'. A "<b>private</b>"
thing? I do not see anything else than a <b>public
space</b> here, where <b>private</b> <b>interests</b> might
indeed be <b>dominant</b>.</div>
</div>
</div>
</div>
</i></div>
</blockquote>
<br>
I fully understand Wolfgang's position here. The Can of
Worms, Pandora Box etc issues cannot be ignored and
sometimes it's better to not dwell unnecessarily into
details.. publicly.<br>
<br>
However, it is a myth that Jon Postel himself made these
delegations. The pre-ICANN delegation history is very
complex and interesting to study -- for some reason the
people in the know prefer to remain silent. Whatever the
procedure was, when ICANN was (hastily) implemented, no
proper process was followed to sort all this stuff out --
despite the community at that time held a lot of debates
and a lot of good proposals were made.<br>
<br>
I am also amused, that we still discuss who controls
ccTLDs. It is easy to check who appointed each and every
ccTLD. Even if this requires arranging in person meetings
and asking each of them individually (first hand
information, that is). The ccTLDs are not that many and
the people who run them are usually communicative.<br>
<br>
There are almost no exceptions, that at some point in
time, national governments decided they should take over
the respective ccTLD, for many different excuses, the most
prevalent being "my cousin's son wants to play with this".<br>
<br>
The Internet is different from other public communication
networks. It differs in many aspects, including both
technical and governance -- but all aspects share one
common feature: everything on the Internet is designed to
follow the normal human to human interaction model. In the
Internet, everyone provides and consumes services to/from
everyone else. There are sometimes middlemen, who one
bright day discover the thing works without them, too --
no matter what they do. One could say, that the basic
principle on which the Internet holds up together is the
"mutual destruction fear". Like, for example: "Oh, I don't
want those guys, so let's filter their SMTP server. Great,
I won't hear from them ever again! Ugh, it turns out a
friend of mine communicates with some friend of theirs and
my friends says they won't talk to me anymore if I
continue to be such an (insert appropriate cultural
expression). So, even if I don't particularly like that
guys, I am going to enable their SMTP server to talk to
mine, because of my friend's needs. (or the service I
provide to someone etc)"<br>
<br>
This "Networks belong to Telecom Operators for the largest
part" is a myth, *they* want you to believe in.<br>
In reality, both your home network and your telecom's
'national backbone' have the same value for the Internet
and for you. If your home network does not function, you
can't access the Internet resources no matter how "great"
the Telecom network is. It may also turn out, you don't
communicate with your neighbor with the assistance of that
Telecom, so their existence might be pretty much
irrelevant to you. And the Internet.<br>
<br>
As such, and because the Internet is defined by the end
points, that are essentially owned/operated by
individuals, you could view it as a network of private
entities. The Internet is designed in such a way, that the
intermediate network (and whatever other stuff lurks
there) is irrelevant. If the end nodes can communicate
with each other, you have Internet. If not -- you have
nothing.<br>
<br>
Now, Governments, under the guidance of Telecoms and other
large corporations try to regulate this stuff, with the
primary goal to ensure those "large investors" continued
control and profits. But as long as the end nodes continue
to not be dumb terminals fully controlled "by the
network", this is pretty much impossible.<br>
<br>
Maybe, I was not precise enough with my statement of the
Internet being a private network. I did not mean to say
the Internet is the private network of someone. Hope this
never, ever happens. I meant to say the Internet is a
network of individual entities, usually private persons.
Private interests, those of the private individuals indeed
dominate Internet. it is a public space in the sense that
participation is not restricted.<br>
<br>
<blockquote type="cite">
<div><i>
<div>
<div>
<div style="font-style: normal;"><br>
</div>
<div style="font-style: normal;">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. </div>
<div style="font-style: normal;">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.</div>
</div>
</div>
</i></div>
</blockquote>
<br>
In as much as ccTLD may have great value, it is nothing
more than a string of letters. A well known one, yes. But
transferring the responsibility for that string of letters
to someone else (what is being asked) could very obviously
destroy whatever value it might have. It *will* also cause
direct damage to the material interests of those who chose
to have a name under that ccTLD.
<br>
<br>
This is an even bigger Can of Worms/Pandora Box -- is the
US court prepared to deal with lawsuits and considering
compensations for all those whose domains get wiped by
this act?<br>
This is the kind of "don't even think about it" kind of
response ICANN should/have given.
<br>
<br>
Unfortunately, by being a political act, this law needs
not follow common sense.<br>
<br>
<blockquote type="cite">
<div><i>
<div>
<div>
<div style="font-style: normal;"><br>
</div>
<div style="font-style: normal;">Back to Joly's
"ICANN Licenses the ccTLDS..." Strictly true?
ICANN having a license over ccTLDs</div>
<div style="font-style: normal;"><br>
</div>
<div style="font-style: normal;">IANA, which is
not an incorporate non profit, is a "<i>department
of ICANN</i>". 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).</div>
<div style="font-style: normal;">The new IANA
(part of the new ICANN) has taken over the
continuity of handling the <a
moz-do-not-send="true"
href="https://www.icann.org/resources/pages/delegation-2012-02-25-en">delegation</a> 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.</div>
</div>
</div>
</i></div>
</blockquote>
<br>
IANA is *the* authority in what it does. International law
nothing to do with it. IANA's role is to compile and
maintain the list of DNS TLDs and various Internet
protocol databases of numbers. Someone might have
oversight of what IANA does, but the entity (no matter how
it is constitutes) has the ultimate authority "what is
which".<br>
<br>
Imagine, I build a collection of post stamps. I am the
ultimate authority over what goes into my collection. Now,
imagine my collection has become very popular worldwide,
is being refered to by many and some even use it as their
reference point (precisely, what has happened with DNS and
IANA). Do I cease to be *the* authority of my post stamp
collection?<br>
Yes, things might get more complex, but unless the
authority itself decides to give up and transform somehow,
nothing will change.<br>
<br>
<br>
<blockquote type="cite">
<div><i>
<div>
<div>
<div style="font-style: normal;"><br>
</div>
<div><span class="Apple-style-span"
style="font-style: normal;">So to anwser
Joly:
</span><b>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.</b></div>
</div>
</div>
</i></div>
</blockquote>
There is an RFC document (RFC1591), that documents the
process, criteria etc. There is an Framework of
Interpretation Working Group of the ccNSO to try explain
in today's terminology what the intent of this document is
and how it should be interpreted by IANA (because it
became obvious that IANA was confused or pressured several
times to do things that could not be explained by
RFC1591).<br>
<br>
This RFC1591 does not talk about the US DoC *at all*.
Interesting, isn't it?<br>
My interpretation on the current situation is as we know
it, because it was USG who originally created IANA and
they seek some way to preserve it, without being too much
involved with it, as running such entity is not their
task.<br>
<br>
In the FOI working group we came to the conclusion, that
RFC1591 does not provide for such a thing as
"re-delegation". Such process consists of two acts -- the
previous manager being removed from responsibility for the
domain (revocation) and a new manager being tasked with
that responsibility (delegation).<br>
<br>
<blockquote type="cite">
<div><i>
<div>
<div>
<div style="font-style: normal;"><br>
</div>
<div style="font-style: normal;">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.</div>
</div>
</div>
</i></div>
</blockquote>
<br>
More likely, the entity who received the task to manage
the .IR domain was someone who was working at/affiliated
with the said institute. That individual likely decided
(for various reasons, including their own safety) that it
is better for them to not be so visible and the institute
would manage the .IR registry. At least officially. There
is no evidence, that the institute has a mandate (usually
documented in their articles for incorporation or another
such/related document) that they have "managing the .IR
domain name registry" as their list of core functions.
Unlikely they have such an assignment etc from the Iranian
Government as well. The Iranian government confirming to
ICANN that they wish/agree that the institute will run the
said registry has nothing to do with any "property rights"
or "ownership"... <br>
<br>
What is the proper term for such desires, in the US
culture? "Pipe Dreams"?<br>
<br>
Running a ccTLD registry I can say this: registrars have
contracts with the (whatever form) manager of the
registry. Not with "the registry" in some abstract form.
Nothing and nobody can force those registrars to sign a
contract or pay any money to any other party, to whom the
previous manager decided to transfer the "business" --
either forced or willingly.<br>
This is especially true in such an political case --
chances are most .IR registrars are Iranian entities. Do
you truly believe they will agree to pay money to some US
based party that is confiscating their country's
properties at will...
<br>
Most likely, those registrars/registrants will swallow the
costs (and some, eventually sue the US big time, *in the
US*) then move to some other TLD.<br>
<br>
<blockquote type="cite">
<div><i>
<div>
<div>
<div style="font-style: normal;"><br>
</div>
<div style="font-style: normal;">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 <a
moz-do-not-send="true"
href="https://www.icann.org/resources/pages/ra-agreement-2009-05-21-en">agreement</a> (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.</div>
</div>
</div>
</i></div>
</blockquote>
<br>
There is a very big difference between the gTLDs ICANN
created, the Registrar business ICANN created and the
ccTLDs relationship with ICANN.<br>
Many ccTLDs were created before ICANN existed. Many ccTLDs
were created before RFC1591 was ever published.<br>
All those ccTLD run perfectly well and serve the public
Internet (see my comment on the Internet being 'private'
above). Nobody wants this to change.<br>
<br>
<blockquote type="cite">
<div><i>
<div>
<div>
<div style="font-style: normal;"><br>
</div>
<div style="font-style: normal;">Still we have a
pending question: what difference should be
made between "to license" and "to delegate" a
ccTLD?
<br>
</div>
</div>
</div>
</i></div>
</blockquote>
<br>
I am not a lawyer, but could imagine it's night a day.<br>
<br>
From my "technical" point of view, the delegation process
is the act of recording who is responsible for the TLD.
IANA, as such has no procedure to "chose" who the registry
will be -- their task is to properly maintain record who
the party is.<br>
<br>
Licensing, is something that requires (pre-existing)
regulation. Possibly, government-style.<br>
<br>
<blockquote type="cite">
<div><i>
<div>
<div>
<div style="font-style: normal;"><br>
</div>
<div style="font-style: normal;">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.</div>
</div>
</div>
</i></div>
</blockquote>
<br>
As always, it is even more complex than this. :)<br>
Consider for a moment, that there can exist an unlimited
number of .IR ccTLDs. Or, in some of these parallel
realities, .IRC could be a gTLD, or what they call it
there.<br>
We all try very hard to stick to this one reality we have
chosen to inhabit, making compromises as neccesary,
because of the "guaranteed mutual destruction" thing.
Being a network of individuals, the Internet is impossible
to be fully regulated, just as it is impossible to fully
regulate individuals.<br>
<br>
To further complicate things, to this day there are still
ccTLDs that do not charge any fee for their registration
services. Further to this, most ccTLDs do not pay ICANN
any fees for the IANA service. This is perhaps because,
the ICANN does the IANA service to the USG, not the
ccTLDs. Any money transfers between ccTLD managers and
ICANN are based on "we agree to fund you" principle.<br>
<br>
<blockquote type="cite">
<div><i>
<div>
<div>
<div style="font-style: normal;"><br>
</div>
<div style="font-style: normal;">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 <a moz-do-not-send="true"
href="http://www.itu.int/ITU-D/cyb/ip/docs/itu-draft-cctld-guide.pdf">interesting
document</a>.</div>
<div style="font-style: normal;"><br>
</div>
<div style="font-style: normal;">Regarding a
possible redelegation, read <a
moz-do-not-send="true"
href="http://www.iana.org/reports/2005/iq-report-05aug2005.pdf">what</a> 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.</div>
</div>
</div>
</i></div>
</blockquote>
<br>
One of the reason swhy the FOI working group was
created...<br>
<br>
<blockquote type="cite">
<div><i>
<div>
<div>
<div style="font-style: normal;"><br>
</div>
<div style="font-style: normal;">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.</div>
</div>
</div>
</i></div>
</blockquote>
<br>
Like I said, a Pandora Box. So the Iranian Government has
done something, that the USG did not approve. They then go
on an penalize (supposedly) Iranian individuals and
commercial entities, claiming they penalize the Iranian
Government. Further, because many international entities,
including without doubt many US corporations/nonprofits
hold .IR names too, they get penalized too.<br>
<br>
Does this create any pressure to the Iranian Government
(the original idea behind this little political game).
Very likely not.<br>
<br>
<blockquote type="cite">
<div><i>
<div>
<div>
<div style="font-style: normal;"><br>
</div>
<div style="font-style: normal;">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.</div>
</div>
</div>
</i></div>
</blockquote>
<br>
Democracy dies centuries ago in ancient Greece and Rome.
Remember? <br>
<br>
If you understand that the Internet is a network of
private entities, with their own interests -- everything
falls in place. Then the "Internet Governance" task
becomes one of disseminating knowledge and dealing with
inter-personal conflicts. Even most wars are based on
inter-personal conflicts... <br>
<br>
Daniel<br>
<br>
<blockquote type="cite">
<div><i>
<div>
<div>
<div style="font-style: normal;"><br>
</div>
</div>
</div>
<div style="font-style: normal;">Comments are very
welcome.</div>
<div style="font-style: normal;"><br>
</div>
<div style="font-style: normal;">Thanks</div>
</i></div>
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