[governance] Fwd: Fwd: Fwd: [Members] US District Court for DC - IRAN/SYRIA - ICANN

Fri Aug 1 04:01:26 EDT 2014

Thanks for sharing Guru,

+1
Mehrzad

On Sun, Jul 6, 2014 at 4:29 PM, Guru गुरु <Guru at itforchange.net> wrote:

>  I thought this posting on another list may be useful to the discussion on
> the IGC thread  "Some more legal tangles for ICANN"
> regards,
> Guru
>
> -------- Original Message --------  Subject: [Members] US District Court
> for DC - IRAN/SYRIA - ICANN  Date: Mon, 30 Jun 2014 13:14:12 +0200  From: Jean-Christophe
> NOTHIAS I The Global Journal <jc.nothias at theglobaljournal.net>
> <jc.nothias at theglobaljournal.net>  Reply-To: members at justnetcoalition.org  To:
> Member Just_Net_Coalition <members at justnetcoalition.org>
> <members at justnetcoalition.org>
>
> Dear JNC members,
>
>  I thought I would wrap-up some facts and appreciation of a new case
> where Plaintiffs have requested the US District Court for the district of
> Columbia to turn to ICANN in order to seize whatever money, property,
> credit IRAN and Syria have at ICANN. This is a 'first', and worth to be
> looked at. Even though we are not legal expert for US law, it is a very
> interesting issue to look at in an Internet Governance perspective. Like
> anything related to US law and jurisdiction, this might take years before a
> conclusion can be reached -  right now these judgements have been made by
> default as Iran and Syria did not show up to the Court to defend
> themselves. Still the case is showing that the asymmetric role of the US in
> terms of Internet Governance is under critical challenge. It also shows
> that much of what is related to the management of the root zone (address
> book for the dot_something (.XYZ) is still missing international definition
> and agreements. This is part of the fact that IG has been into US hands, at
> least under the current form since 1998 when ICANN was incorporated and
> when Jon Postel's job at the root zone level was doing until then through
> IANA was also transfer to ICANN under the same acronym. The new IANA became
> part of the ICANN that same year Being an 'authority' and a 'department' of
> ICANN, IANA has no bylaws but is under strict supervision of the US
> Department of Commerce, through NTIA. Nothing can be change at the root
> zone level for TLDs (gTLDs or ccTLDs) without the consent of the US DoC.
> This helps to understand by the same token the role of IANA, as a
> department of ICANN under a double US oversight, ICANN being itself under
> contract with the US DoC.
>
>  Some debate took place into the IGC list, and I would start from there.
>
>  1_
> It started here
>
> http://www.timesofisrael.com/israeli-us-terror-victims-now-own-irans-internet/
>
>  2_
> A subscriber to the Civil Society Governance Caucus- IGC elist (Joly
> McFie) wrote on June 25:
>
>  "ICANN licenses the TLDs to different world governments who then are
> permitted to appoint agents who sell the domain names and their country
> specific internet suffixes to individuals, businesses and organizations."
>
> 1/ Is this strictly true?
> 2/ Does ICANN have a licence over ccTLDs?
>
>  Some honorable subscribers of the IGC list reacted, among others:
>
>  From Daniel Kalchev
> * - most ccTLDs were delegated before ICANN was even an idea and most
> ccTLDs managers are in fact not been appointed by any government.*
> * - After all, Internet was, is and will be an worldwide private network.*
>
>  From Wolfgang Kleinwächter:
> * - This is nonsense. The author of this piece does not understand, how
> the DNS works. *
>
>  From McTim:
> * - This won't go anywhere... Just a lawyer trying to get attention for
> his case.*
> * - The fees paid to ICANN from Iran are exactly zero.*
>
>  3_
>
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> * Then I posted On June 28 to the same IGC list the following information:
> Here are the 6 "Writs of Attachment
> <https://docs.google.com/file/d/0B_dOI5puxRA9M3hweE9Eel9mVTQ/edit?pli=1>"
> (5  vs IRAN; 1 vs Syria) as of June 24, 2014, notified to ICANN/IANA by the
> US District Court for the District of Columbia. So no "if" and no
> "apparently" as some doubted on the list. 4_ There would be postings with
> opposing views, ones saying that there was nothing to worry about - ICANN
> would simply answer 'no'- and others saying that this was critical issue
> for the first-level domain for countries (ccTLD: country-code for Top Level
> Domain). 5_ First, to be frank,  I would say that I was a bit disappointed
> with the comments on the IGC list. Some participants were supposedly able
> to provide a better perspective on the case. For example,  I believe that
> Wolfgang Kleinwächter, specially since he is working at ICANN, should have
> provided a better answer to Joly's question. "Non sense" means little if
> nothing. Sharing and distributing understanding is always worth the effort.
> Daniel is quite right in his first assumption (Jon Postel did most of the
> delegation work prior to the NewCo ICANN/IANA, established in 1998). I
> would not be overly certain that the majority of ccTLDs mangers are not
> being appointed by governments. That could be investigated. A ccTLD being
> considered by governments as part of their "national sovereignty" I would
> challenge this assertion. National realities are often more subtile. More
> of a concern in my view is Daniel's idea of a "worldwide private network".
> This has little if no reality. Networks belong to Telecom Operators for the
> largest part, some being public, some private (under governmental
> regulations). Autonomous Systems do also belong
> to public or private entities. What can be seen as worldwide is
> "interconnectivity" - one can say that nobody owns the Interconnectivity,
> something essentially untrue when we speak of 'Internet'. A "private"
> thing? I do not see anything else than a public space here,
> where private interests might indeed be dominant. McTim underestimates the
> "where" the Court request is leading. A simple "no" by ICANN/IANA/NTIA
> would not be the end for the US District Court to act.  McTim is right
> about the fact that Iran and Syria pay no fees to ICANN, but still this
> does not evacuate the idea, as per the Court appreciation and own view,
> that a ccTLD has great value. McTim has acknowledged this fact. Back to
> Joly's "ICANN Licenses the ccTLDS..." Strictly true? ICANN having a license
> over ccTLDs IANA, which is not an incorporate non profit, is a "department
> of ICANN". It is an 'authority' with no legal ground, no bylaws in the US,
> nor any International recognition. Still it has quite many
> responsibilities. One major constraint for ICANN/IANA regarding the root
> zone is that nothing can be changed in the root zone file without an
> approval by DoC (through NTIA). The new IANA (part of the new ICANN) has
> taken over the continuity of handling the delegation
> <https://www.icann.org/resources/pages/delegation-2012-02-25-en> of the
> ccTLDs to registries since Jon Postel died in 1998, days before ICANN was
> incorporated with Vint Cerf as first president. By then IANA was funded by
> the US Department of Defense. We should all remember that Postel came to
> Geneva in 1997 where he intended to establish a non profit, with an
> international recognition from governments, a non profit that would handle
> the civilian root zone for the planet. His project was opposed by US
> diplomats in Geneva at the time. So to anwser Joly: Yes, IANA, a department
> of ICANN delegates (the verb to license would not be strictly right) each
> ccTLD to a unique entity/registry, but only after the US DoC approval. IANA
> is also responsible for re-delegation. In the case of IRAN, the unique
> registry that has received the delegation to handle the ".IR" ccTLD is THE
> INSTITUTE for RESEARCH in FUNDAMENTAL SCIENCES, based in IRAN, and
> affiliated with the Iranian Ministry of Science, Research, and Technology
> founded in 1989 under the name of INSTITUTE for STUDIES in THEORETICAL
> PHYSICS and MATHEMATICS - this tends to document the fact that the registry
> for .IR is legitimate part of the state of IRAN. What can the US District
> Court do about this? Ask for the plaintiffs to become the unique registry
> for .IR? The new registry would then earn money thanks to the Iranian
> registrars that would keep using the .IR. Not a bad deal. What would IANA
> consider as a possible reason to terminate the delegation of the .IR? If we
> look at what ICANN considers as a possible reason to terminate a registrar
> accreditation agreement
> <https://www.icann.org/resources/pages/ra-agreement-2009-05-21-en> (see 5.3
> of the Registrar Accreditation Agreement, even though it does not seem to
> have its equivalent with registries). But who said that this could not
> happen when it comes to a registry issue? Again, in the absence of an
> international treaty clarifying many obscure points in terms of root zone
> policy, the many vacuums could be of great amusement to a US District
> Court. Again, that brings a very serious challenge to the global,
> transnational governance of the Internet. ICANN is now in a poor situation.
> Would ICANN give way to the US District Court request, many countries would
> take the opportunity to fully challenge ICANN in its fundaments. Would
> ICANN pass the hot potato to someone else (US DoC? IRFS, the Iranian
> registry? Nobody?) the Court might not like that answer, and might
> threatened ICANN to comply. We'll see. Still we have a pending question:
> what difference should be made between "to license" and "to delegate" a
> ccTLD?  Nobody really owns a domain name, and there are many indications
> that it could considered in the same way for TLDs. A TLD or domain name
> 'holder'/'tenant' pays a 'lease' for a domain. If the .COM is the property
> of ICANN or DoC, then .IR would then be the property of its current tenant.
> As with any lease, it can end if not renewed or be terminated by the
> delegating authority (if nobody is ultimate owner). So we definitely have a
> situation that isnot clear, as a domain name is still not a property but
> holds intellectual property rights, turning it into a very valuable asset.
> You do not own the domain, you own the right to use it. This still means
> that any TLD has a commercial value, including ccTLDs, and is therefore an
> asset and subject to a Court sequestration warrant or redelegation request.
> And in this case, the judge is not asking for the moon, I would say. Here
> is an excellent work funded by the US National Science Foundation and ITU
> related to "Policy, Business, Technical and Operational Considerations for
> the Management of a country code Top Level Domain (ccTLD) drafted in 2008.
> It is an interesting document
> <http://www.itu.int/ITU-D/cyb/ip/docs/itu-draft-cctld-guide.pdf>. Regarding
> a possible redelegation, read what
> <http://www.iana.org/reports/2005/iq-report-05aug2005.pdf> happened to the
> .IQ (IRAK) in 2005. It's a IANA report worth to read. See again the role
> played by the US DoC and NTIA. Without putting in a US District Court. All
> of that is not limited to the respective unique registries for IRAN and
> SYRIA (both countries are concerned with the US District Court of Columbia
> writs). The Writ has no limitation, quite to the contrary. Who said that
> the link between Iranian registrars and ICANN did not exist.  There are
> much more than the first-level domain (ccTLD) to be considered such as the
> second-level domain registration by registrars. What's about IPs? All of
> that enters into IANA, a department of ICANN, duties and performance. So
> apart from trying to predict with little to no chance the outcomes for this
> case, we see that in this situation the current state of Internet
> Governance is far from comfortable. So a lot of work to be done. Again we
> see that without clear definition, and international agreements, it will be
> difficult to find trust, clarity and democratic values. Comments are very
> welcome. Thanks *
> Jean-Christophe Nothias
>
>   *Chief Strategist,*
>
> *Contents and Projects *
> (+41) 79 265 92 75
>  jc.nothias at globalgeneva.net
>  @jc_nothias
>
>
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-- 
*Mehrzad Azghandi*
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