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

Fri Mar 7 09:12:58 EST 2008

Dear Meryem,

Interesting to turn this list into a franco-french exchange for once ...:-)
Just a few remarks and I stop.

1) you wrote :

> 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?

 This was precisely my point : what you describe is not an intervention on
the root itself (ie : an IANA oversight function), but a potential action
through ICANN and its contractual agreements, which is a different matter.

What I meant is that this escalation brings larger and larger impact with
each level : site owners can be asked to suppress very small items (maybe
down to a sentence), registrars and registries can only act at the level of
the domain name (ie the whole site). But nothing can be actually done at the
top root level - unless I completely misunderstand the whole system, which
is possible - except disabling the whole TLD, a disproportionate "nuclear"
action if any.

Although, upon further thinking, in the perspective of future new TLDs of
smaller size and more specific purpose than .com, that would consistently
refuse to impose upon their registrants the provisions of the contractual
agreement, such a drastic measure could potentially be envisaged as part of
a structured and clear enforcement mechanism. I do not say it should.

2) You are right : appeal and redress are only ex-post actions. Ex ante
principles and rules of enforcement must be clear to "resolve  conflicts of
jurisdiction in Internet content-related cases". This is why I found useful
to discuss concrete cases like this one.

3) A last word on "fractal sovereignty". The way it was worded makes it look
like a solution. I was rather refering to a factual description of a
situation. I should have written "we are witnessing a fractalization of
sovereignty". Thanks for forcing me to be more precise.

Best

Bertrand

On Fri, Mar 7, 2008 at 1:32 PM, Meryem Marzouki <marzouki at ras.eu.org> wrote:

> 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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 --
____________________
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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