[governance] A Wave of the Watch List, and Speech Disappears

Fri Mar 7 06:08:02 EST 2008

Meryem,

I fully agree this case is a "notice and take down" procedure. My questions
were related to the hypothesis of such an order being given by a court in
the US (as per Milton's comment) towards a registrar that would be
elsewhere.

You raise a valid question when you say : "it seems that the CDA provisions
allows quite a wide interpretation: a "provider or user" could be a
registrar.". Interesting point to explore further.

What you actually describe is a chain of successive enforcement modes :
notice and take down on specific contents towards the site operator, notice
and take down for a whole site through the ISP, suspension of the domain via
the registrar, and then the registry. This escalation, may be compared to
the nuclear deterrence "graduated response" model (and you know this
expression has flourished in France in relation to the measures proposed in
the case of music downloads). Interestingly enough, such mechanism cannot
escalate up to the root itself.

In cases of competing or overlapping jurisdictions, the key question you
want to see addressed, if I understand well, is the transparency and
accountability (including capacity for redress and appeal) that should exist
at these different levels. It is indeed the right question. Relying merely
on the national law or on contracts is not enough to provide a coherent
framework. This is the challenge we are facing.

In that context, the notion of "fractal sovereignty" I was alluding to would
not be a breach of the rule of law. Quite on the contrary, an attempt to
maintain (or establish) it in cases where the web is raising new problems
that are hard to solve with pure territorial sovereignty and the
non-involvement of key technical or commercial actors.

I do not have the full solution. But we probably need to forge new concepts
if we want to define a global framework that works and is widely
acceptable.

Thanks for your comments anyway.

Best

Bertrand

On Fri, Mar 7, 2008 at 11:36 AM, Meryem Marzouki <marzouki at ras.eu.org>
wrote:

> 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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-- 
____________________
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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