[governance] FW: TP: city government exercising policy on Google Applications / consumer rights / Consumer Protection Act / trial period

[Kerry Brown]

Hello Paul

I'd like to clear up a few possible misconceptions.

I am not against all bureaucracies. They are sometimes necessary. My belief is that bureaucracies often become inefficient over time. We should avoid creating new ones whenever possible. Elected officials should have a close oversight role to ensure bureaucracies do not become inefficient fiefdoms that are a law unto themselves.

I am indeed a director at the Canadian Internet Registration Authority. I was elected to the board three years ago. My term will be up in September and I intend to run again. I originally ran for the board because I wanted to reduce the amount of bureaucracy involved with running the dot-ca ccTLD. When I was elected I was pleasantly surprised to find most of the existing directors shared my concerns. The board was already working on plans to reduce the bureaucracy. Since that time CIRA has implemented new registry software and policies that have made it much easier for Canadians to register and manage their dot-ca  domains.

CIRA has also recognised some of the problems you have pointed out with the CDRP policy. We undertook a public review of the policy and are in the final stages of updating the policy to make it quicker and less expensive. The reason for having a CDRP outside of the judicial system is to reduce the cost and the bureaucratic red tape associated with going through the judicial system. As you mention if the process outside of the judicial system fails, either side can always fall back to that.

Of course CIRA keeps a record of who registers domains. That is the essence of running a registry. CIRA does not track registrants other than to match them to domain names, ensure they meet the Canadian presence requirements, and possibly send them surveys to see if we are meeting their needs. In fact CIRA is one of the most progressive registries when it comes to registrants. By default all individual registrant information is private. Even law enforcement agencies can't access this information without going through a process first. The registrant will be advised their information was accessed. In some law enforcement cases this notification may be delayed up to 60 days or possibly longer if a court intervenes.

We obviously disagree on where IP rights are going but as I don't have a functioning crystal ball we'll have to agree to disagree.

Lastly I take it you are not that familiar with Canadian politics. The recently elected Conservative government has rolled several bills which died on the floor when the last election was called into an omnibus bill. This bill includes the legislation I mentioned earlier. They have indicated this new omnibus bill will be a priority. As they have a substantial majority in parliament it is almost assured the bill will pass. The part of the bill regarding forcing ISPs to track users and make the results available to law enforcement agencies with no court oversight may be amended but it is certain it will be in there in some form.

Kerry Brown

> -----Original Message-----
> From: Paul Lehto [mailto:lehto.paul at gmail.com]
> Sent: July-13-11 8:35 PM
> To: governance at lists.cpsr.org; Kerry Brown; Michael Gurstein
> Subject: Re: [governance] FW: TP: city government exercising policy on
> Google Applications / consumer rights / Consumer Protection Act / trial
> period
> 
> On 7/13/11, Kerry Brown <kerry at kdbsystems.com> wrote:
> > Phillippe
> >
> > Thanks for the thoughtful response, You are more optimistic than I on
> > how bureaucracies work.
> 
> Kerry, according to your company's website, you are appointed to a private
> bureaucracy called CIRA, the Canadian Internal Regulation Authority (CIRA).
> 
> CIRA took over Canadian domain name registration from the University of
> British Columbia in 2000, and operates as a private nonprofit
> corporation.   CIRA has its own judicial system via arbitration, and
> when a complaint is filed with one of the providers selected by CIRA the
> Registrant of the domain "must submit" to the CIRA-authorized arbitration
> process.  Anyone owing a CIRA provider money from a past arbitration is
> barred from filing any actions until paid no matter how meritorious the action
> may be, a policy that doesn't apply in any governmental court system that I
> know of.  Regarding any CIRA arbitration, the Provider may not supplement
> the rules set forth by CIRA (  ), and neither the Complainant nor the
> Respondent will be allowed to argue that any foreign or domestic laws or
> legislation should be considered in a CIRA-authorized arbitration, and even
> the Provider, Complainant and Respondent combined lack the power to
> amend or waive a CIRA rule:  only the written express permission of CIRA can
> do that. See para. 1.2 & 1.7 at
> http://www.cira.ca/assets/Documents/Legal/Dispute/CDRPrules.pdf  CIRA
> rules state that no in-person hearing is allowed, not even a telephone
> conference or a chat room, unless the Provider alone finds it necessary.
> 
> 
> While appeal from a CIRA arbitration to a court may be allowed, it
> nevertheless appears clear from the above that CIRA has set up its own
> private bureaucratic judicial system with panels of arbitrators so that parties
> have to pay not only for lawyers but for the judges
> (arbitrators) as well (Three of them, often), and as regards procedural rights,
> CIRA has specified that democratically-based laws simply do not apply,
> whether they be foreign laws or domestic laws.
> 
> My question is this:  When you say that bureaucracies don't work, are you
> referring to the private bureaucracy of CIRA in its judicial (or
> other) capacity, or do you see CIRA as a competitor with governments in
> terms of providing dispute resolution rules and forums related to internet
> domain names?
> 
> > My objections to going forward with such a treaty are more
> > philosophical than the details of how such a treaty would work. In
> > general for such a treaty to work there would need to be a mechanism
> > to identify and track each and every user on the Internet. I am
> philosophically opposed to that.
> 
> Does CIRA track the whereabouts of all 1.5 million .ca registrants?
> Does it require an up to date admin contact and physical address so you can
> track the whereabouts of all 1.5 million canadian registrants?
>   Have you made a record of your philosophical opposition to CIRA tracking
> internet users in this way?
> 
> > Such a
> > mechanism could too easily be subverted for other uses. This will
> > probably happen anyway but I will oppose it wherever I can.
> 
> Alas, CIRA uses admin contacts to provider for valid service of CIRA-
> authorized lawsuit arbitrations.  I'll bet domain name registrants providing
> admin contact information didn't expect in their wildest dreams that that
> information would be used to perfect service of process on them before an
> arbitral court system that they "must submit" to, and be stripped of all
> procedural rights, foreign or domestic, in their submission.  Thus, I agree you
> are correct that information, once obtained, can be used or subverted for
> collateral purposes.
> 
> > The Internet is
> > fundamentally changing the way we think of IP. My belief is eventually
> > there will be no such thing as IP. We will be back to a time where
> > ideas are freely passed between people as in a stranger shows up at
> > the campfire and shows the locals how to make a better arrowhead or a
> new hunting chant.
> 
> Patents are a form of IP and as of late they are widely described as a new
> form of currency or money.  Many information-based corporations claim
> balance sheets in which IP is 50% or more of the company's value.  For a
> couple decades we've been heading quickly into a world in which IP is money
> itself, so I have to admit to a strong degree of skepticism that we are heading
> toward a world in which IP is as free as a caveman showing how to make a
> better arrowhead.  Those with all the money simply won't allow that to
> happen.
> 
> > And yes, I agree, as long as money is changing hands someone will be
> > trying to tax it. If that tax will be accepted by the constituents is
> > a different matter.
> 
> The CIRA arbitration providers are authorized by CIRA to tax costs against any
> party, which if unpaid is both a legally enforceable debt as well as a bar
> against filing any CIRA arbitrations no matter how justified.  (Unscrupulous
> domain holders can take advantage here if their victim doesn't have enough
> money to pay CIRA's provider and thus can't file for a domain name
> arbitration.)
> 
> > The tax issues are important but to my mind the fact that a country
> > that professes to be one of the freest countries in the world is
> > considering this is a far more important issue. My fear is that
> > governments will use issues like taxation to justify loss of freedom on the
> Internet.
> 
> Canada may do such a thing, but more likely will not.  In contrast, CIRA
> arbitrations have already created, in reality, a private judicial arbitration
> system whereby (1)  anybody hauled into such an arbitration loses all of their
> procedural rights, foreign or domestic, (see para 1.7 at
> http://www.cira.ca/assets/Documents/CDRPpolicy.pdf ) and (2) has to pay
> for the judge-arbitrators as well as for any costs taxed to them or any
> damages awarded in a CIRA-enabled arbitration system, not to mention their
> own lawyer, if they can afford one.
> Anybody who has a problem with any of these brave-new-legal-world rules
> can't change them, even if their litigation opponent agrees, without "the
> express written consent of CIRA."
> 
> Personally, I'm much more worried about what is forced upon people TODAY
> by private ("nonprofit") corporations, than what might someday possibly be
> done by an elected democratic legislature in Canada or anywhere else.
> 
> Paul Lehto, J.D.
> 
> --
> Paul R Lehto, J.D.
> P.O. Box 1
> Ishpeming, MI  49849
> lehto.paul at gmail.com
> 906-204-4026 (cell)
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