[governance] A Wave of the Watch List, and Speech Disappears
Meryem Marzouki
marzouki at ras.eu.org
Fri Mar 7 05:36:18 EST 2008
Bertrand,
As some people already commented on this list, there is nothing
really new in this story: it is yet another "notice and take down"
kind of procedure, where:
- there has been no notice (neither of the website owner, nor -
according to the report I've read - of the website host provider)
- since neither the website owner, nor - again, according to the
report I've read - the host provider is subject to US law, the US
registrar was used to execute the "notice and take down" procedure
ordered by the US administrative authority, here the Treasury
Department.
Additionally, there has been no court decision, but it's exactly the
problem with the "notice and take down" procedure! It's a procedure
that legitimates private or administrative justice and private law
enforcement! There is an abundant literature on this.
The "notice and take down" procedure is fully legal (and mandatory,
BTW) for host providers in the European Union, through the liability
of intermediaries provisions (EU Directive 2000/31/EC on electronic
commerce, article 14). The Directive is available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0031:EN:NOT.
To my knowledge, it is also legal in the US law, but normally
restricted to IPR infringement (DMCA provision). There is also the
"good samaritan provision" of the CDA, limitting the liability of a
"provider or user of interactive computer service" for restricting
access to or availability of material considered as "obscene, lewd,
lascivious, filthy, excessively violent, harassing or objectionable".
But I understand this only applies to "decency" issues with content,
not to any law infringement.
Now regarding the provider:
In the EU, the provider acting as "mere conduit" (and this could
apply to the registrar I think) is exempted from liability (article
12 of the directive). however, article 12(3) provides that: "3. This
Article shall not affect the possibility for a court or
administrative authority, in accordance with Member States' legal
systems, of requiring the service provider to terminate or prevent an
infringement." BTW, as you know Bertrand this is the case with the
French implementation of the Directive (LCEN, article 6-I(8)).
In the US, I don't know the law in details, but it seems that the CDA
provisions allows quite a wide interpretation: a "provider or user"
could be a registrar.
In the case we're discussing, it seems that there're reasonable
chances that the owner of the website wins if he goes to court in the
US (but this would take a lot of time, money, and energy).
And the lesson to learn here is that, unless there is any good reason
to escape one's national law, one should prefer not only national
host providers, but also national registrars, and national
registries, if possible. In principle, national legislation is better
known by users/citizens, and court litigation is of course easier in
one's own country. There are some protections for consumers rights
Regarding your set of questions, I don't think they're relevant to
this case:
>
> 1) Would/should a foreign registrar comply with a court order from
> the US ?
NB. the registrar is US, not foreign here. Probably not. If he does,
it would be very easy to go to the national court and win (provided
that the content doesn't also infringe the national law).
> 2) And if it failed to do so, would the court order Verisign to do
> it (block the domain name) ?
NB: there is no court order here. The answer should be in the
contract between the registry and the registrars.
> 3) Should Verisign do it, does that mean that all .com registrants
> become indirectly subject to US law, not only in terms of
> appropriate strings, but also in terms of the very activity they
> run, even on servers not located on US territory and serving
> customers outside of the US ?
Yes, should Verisign has the right to do it according to its contract
with the registrar. But still, this could perfectly lead to a court
case filed in the foreign country by the website owner against its
registrar.
In any case, what would be very interesting is to analyze, with
respect to this case, the contracts between:
1. the registrar and the registrant
2. the registry and the registrar
3. ICANN and the registry (in case of e.g. foreign registry). I know
this sounds like Goodwin point reached, but this possibility cannot
be avoided.
The whole point here is indeed the conflict of jurisdictions, in a
case probably not dealt with by international law, and the attempt to
solve it through "private exequatur", thus circumventing all legal
procedure, recognized by international law and agreements. In my
opinion, what you call "fractal sovereigny" is a breach of the rule
of law. And is likely to lead to the legitimation of the jungle law.
Best,
Meryem
Le 7 mars 08 à 09:47, Bertrand de La Chapelle a écrit :
> Milton,
>
> Following your remarks to McTim below, and supposing this indeed is
> done through the courts, the interesting set of questions here is :
>
> 1) Would/should a foreign registrar comply with a court order from
> the US ?
> 2) And if it failed to do so, would the court order Verisign to do
> it (block the domain name) ?
> 3) Should Verisign do it, does that mean that all .com registrants
> become indirectly subject to US law, not only in terms of
> appropriate strings, but also in terms of the very activity they
> run, even on servers not located on US territory and serving
> customers outside of the US ?
>
> This is a real and useful discussion. Nothing to do with the
> "oversight of the root" via IANA. It is exposing the core challenge
> of competing or overlapping jurisdictions and probably the need for
> some "globally-applicable public policy principles". I believe
> nobody has the full complete answer. In my personal view, this is
> an illustration of the mutation of sovereignty, disconnecting it
> from the sole physical territory and allowing it to expand in a
> fractal manner on other territories - or conversely, retract -
> depending on the influence of the corresponding national actors in
> the digital sphere. And those national actors are not only the
> governments : the existence of a dominant player in a specific
> domain (Verisign, but also a Google, YouTube, MySpace or Facebook)
> does bring the corresponding government a leverage. But it probably
> also gives it a special responsibility it did not have before.
>
> This notion of "fractal sovereignty" is harder to handle than the
> traditional territory-based one but probably more adapted to our
> connected world than the notion of strict subsidiarity : the
> challenge is to manage interdependence and interactions.
>
> To enrich the discussion, I'd like to put in perspective here the
> issue of IDNs. Will the physical location of the future major
> registries for IDN TLDs (particularly gTLDs if any) give the
> corresponding national courts a specific authority/legal power on
> all registrants in those TLDs, even if they are not located in that
> country and have no business with its citizens ?
>
> These are deep policy issues and I'd be interested in comments on
> those challenges. Because they are challenges for governments too.
>
> Best
>
> Bertrand
>
>
>
>
> On Fri, Mar 7, 2008 at 12:06 AM, Milton L Mueller <mueller at syr.edu>
> wrote:
> > -----Original Message-----
> > From: McTim [mailto:dogwallah at gmail.com]
> > In this case, the registrar took action, not the registry, so it
> > remains to be seen if a non-US .com registrar (and non-US
> registrant)
> > would take the same action. Probably not.
>
> The action was not taken by the registrar, the registrar complied
> with a
> legal order.
>
> .com is located in Virginia.
>
> > Then the question (that I
> > think you are raising) is would VRSN remove the records from
> the .com
> > zone in such a case.
> >
> > I would hope not.
> >
>
> It is not up to VeriSign. It is up to the courts.
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>
> --
> ____________________
> Bertrand de La Chapelle
> Délégué Spécial pour la Société de l'Information / Special Envoy
> for the Information Society
> Ministère des Affaires Etrangères et Européennes/ French Ministry
> of Foreign and European Affairs
> Tel : +33 (0)6 11 88 33 32
>
> "Le plus beau métier des hommes, c'est d'unir les hommes" Antoine
> de Saint Exupéry
> ("there is no greater mission for humans than uniting humans")
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