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

[Meryem Marzouki]

Le 7 mars 08 à 12:08, Bertrand de La Chapelle a écrit :

> 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.

There are precedent for this: the French/US Yahoo case. The precedent  
is in the court order issued in one country (France), to be executed  
in another country (USA). It resulted in an 6 years litigation in  
French and US courts. In fine, there is still no clear jurisprudence  
on enforcement in the US of foreign court orders. I don't know of any  
important precedent for the converse situation (US court order to be  
enforced in a foreign country).

> [...]

> 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).

The "graduated response" foreseen in France is a completely different  
concept.

> Interestingly enough, such mechanism cannot escalate up to the root  
> itself.

I fail to see why? The possibility I mentioned is that ICANN (a US  
legal entity) be ordered by a US court to use contractual provisions  
(if they allow) with a foreign registry to suspend a domain name?

> 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.

What I would really want to be addressed, and what is the right (and  
main) question in my opinion, is the resolution of the conflicts of  
jurisdiction in Internet content-related cases. There indeed exist  
some international law provisions dealing with the conflict of   
jurisdiction issues, but to my knowledge it is mainly limited to  
civil and commercial matters. Better than transparency and  
accountability and capacity for redress and appeal (which are a  
posteriori procedures, after one has already faced a court decision  
against him/her) would be true legal security for website owners,  
i.e. for responsibles of published content.

> 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.

Perhaps we're actually willing to reach the same goal, but I don't  
see here any need for new concepts like "fractal sovereignty", which  
fuziness could only be used (whether we like it or not) to circumvent  
well established and secure principles and rights. I would feel far  
more comfortable with a discussion on new international law  
agreements based on the principle of the country of origin of the  
content owner -- But there's for sure, a very long way to this, and  
the result is by no mean guaranteed.

Best,
Meryem____________________________________________________________
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