[governance] Fwd: Fwd: Fwd: [Members] US District Court for DC - IRAN/SYRIA - ICANN
Daniel Kalchev
daniel at digsys.bg
Fri Aug 1 04:59:35 EDT 2014
There are some interesting points, see my comments below.
On 06.07.14 14:59, Guru गुरु 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>
> Reply-To: members at justnetcoalition.org
> To: Member Just_Net_Coalition <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.
The primary issue in this case, is the decision by the USG to play
political games, when they devised this "If you don't threat your
citizens the way we want you to, we will let them sue you in the US
under our own laws and will 'lawfuly' steal your property in the US. So,
do as we say!".
More powerful countries, such as Russia and Brasil (and to a lesser
degree the "western democracy" countries) clearly told the US they do
not care and they would subject US property in their respective area of
control to about the same process (or worse).
By creating this procedure, the US has prepared a lot of Pandora Boxes
or Cans of Worms, waiting to be opened..
As such, it is unfortunate, but quite understandable that some lawyer
decided to drag ICANN into this mess. Understandable, because ICANN
demonstrates it has lots of money to spend, is a public "shared
irresponsibility" entity etc. Typical target for the typical US lawyer.
For many reasons, the ICANN processes are a mess. This too is heaven for
lawyers. The good news is the community is slowly clearing up the mess.
The bad news is this is a very slow process (and ICANN is thus
vulnerable for longer period). The other bad news is there are new
incentives at ICANN that create even more weak points (even if attempts
are made to design them properly).
Out of everything else, IANA is the most interesting ... non-entity :)
>
> 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_
> /
> 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).
> /
This is good, as if we were all of the same opinion, sometimes we would
be all totally wrong and there would be no balance to help in cases of
disaster.
> /
>
>
> 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*.
> /
I fully understand Wolfgang's position here. The Can of Worms, Pandora
Box etc issues cannot be ignored and sometimes it's better to not dwell
unnecessarily into details.. publicly.
However, it is a myth that Jon Postel himself made these delegations.
The pre-ICANN delegation history is very complex and interesting to
study -- for some reason the people in the know prefer to remain silent.
Whatever the procedure was, when ICANN was (hastily) implemented, no
proper process was followed to sort all this stuff out -- despite the
community at that time held a lot of debates and a lot of good proposals
were made.
I am also amused, that we still discuss who controls ccTLDs. It is easy
to check who appointed each and every ccTLD. Even if this requires
arranging in person meetings and asking each of them individually (first
hand information, that is). The ccTLDs are not that many and the people
who run them are usually communicative.
There are almost no exceptions, that at some point in time, national
governments decided they should take over the respective ccTLD, for many
different excuses, the most prevalent being "my cousin's son wants to
play with this".
The Internet is different from other public communication networks. It
differs in many aspects, including both technical and governance -- but
all aspects share one common feature: everything on the Internet is
designed to follow the normal human to human interaction model. In the
Internet, everyone provides and consumes services to/from everyone else.
There are sometimes middlemen, who one bright day discover the thing
works without them, too -- no matter what they do. One could say, that
the basic principle on which the Internet holds up together is the
"mutual destruction fear". Like, for example: "Oh, I don't want those
guys, so let's filter their SMTP server. Great, I won't hear from them
ever again! Ugh, it turns out a friend of mine communicates with some
friend of theirs and my friends says they won't talk to me anymore if I
continue to be such an (insert appropriate cultural expression). So,
even if I don't particularly like that guys, I am going to enable their
SMTP server to talk to mine, because of my friend's needs. (or the
service I provide to someone etc)"
This "Networks belong to Telecom Operators for the largest part" is a
myth, *they* want you to believe in.
In reality, both your home network and your telecom's 'national
backbone' have the same value for the Internet and for you. If your home
network does not function, you can't access the Internet resources no
matter how "great" the Telecom network is. It may also turn out, you
don't communicate with your neighbor with the assistance of that
Telecom, so their existence might be pretty much irrelevant to you. And
the Internet.
As such, and because the Internet is defined by the end points, that are
essentially owned/operated by individuals, you could view it as a
network of private entities. The Internet is designed in such a way,
that the intermediate network (and whatever other stuff lurks there) is
irrelevant. If the end nodes can communicate with each other, you have
Internet. If not -- you have nothing.
Now, Governments, under the guidance of Telecoms and other large
corporations try to regulate this stuff, with the primary goal to ensure
those "large investors" continued control and profits. But as long as
the end nodes continue to not be dumb terminals fully controlled "by the
network", this is pretty much impossible.
Maybe, I was not precise enough with my statement of the Internet being
a private network. I did not mean to say the Internet is the private
network of someone. Hope this never, ever happens. I meant to say the
Internet is a network of individual entities, usually private persons.
Private interests, those of the private individuals indeed dominate
Internet. it is a public space in the sense that participation is not
restricted.
> /
>
> 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.
> /
In as much as ccTLD may have great value, it is nothing more than a
string of letters. A well known one, yes. But transferring the
responsibility for that string of letters to someone else (what is being
asked) could very obviously destroy whatever value it might have. It
*will* also cause direct damage to the material interests of those who
chose to have a name under that ccTLD.
This is an even bigger Can of Worms/Pandora Box -- is the US court
prepared to deal with lawsuits and considering compensations for all
those whose domains get wiped by this act?
This is the kind of "don't even think about it" kind of response ICANN
should/have given.
Unfortunately, by being a political act, this law needs not follow
common sense.
> /
>
> 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.
> /
IANA is *the* authority in what it does. International law nothing to do
with it. IANA's role is to compile and maintain the list of DNS TLDs and
various Internet protocol databases of numbers. Someone might have
oversight of what IANA does, but the entity (no matter how it is
constitutes) has the ultimate authority "what is which".
Imagine, I build a collection of post stamps. I am the ultimate
authority over what goes into my collection. Now, imagine my collection
has become very popular worldwide, is being refered to by many and some
even use it as their reference point (precisely, what has happened with
DNS and IANA). Do I cease to be *the* authority of my post stamp collection?
Yes, things might get more complex, but unless the authority itself
decides to give up and transform somehow, nothing will change.
> /
>
> 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.*
> /
There is an RFC document (RFC1591), that documents the process, criteria
etc. There is an Framework of Interpretation Working Group of the ccNSO
to try explain in today's terminology what the intent of this document
is and how it should be interpreted by IANA (because it became obvious
that IANA was confused or pressured several times to do things that
could not be explained by RFC1591).
This RFC1591 does not talk about the US DoC *at all*. Interesting, isn't it?
My interpretation on the current situation is as we know it, because it
was USG who originally created IANA and they seek some way to preserve
it, without being too much involved with it, as running such entity is
not their task.
In the FOI working group we came to the conclusion, that RFC1591 does
not provide for such a thing as "re-delegation". Such process consists
of two acts -- the previous manager being removed from responsibility
for the domain (revocation) and a new manager being tasked with that
responsibility (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.
> /
More likely, the entity who received the task to manage the .IR domain
was someone who was working at/affiliated with the said institute. That
individual likely decided (for various reasons, including their own
safety) that it is better for them to not be so visible and the
institute would manage the .IR registry. At least officially. There is
no evidence, that the institute has a mandate (usually documented in
their articles for incorporation or another such/related document) that
they have "managing the .IR domain name registry" as their list of core
functions. Unlikely they have such an assignment etc from the Iranian
Government as well. The Iranian government confirming to ICANN that they
wish/agree that the institute will run the said registry has nothing to
do with any "property rights" or "ownership"...
What is the proper term for such desires, in the US culture? "Pipe Dreams"?
Running a ccTLD registry I can say this: registrars have contracts with
the (whatever form) manager of the registry. Not with "the registry" in
some abstract form. Nothing and nobody can force those registrars to
sign a contract or pay any money to any other party, to whom the
previous manager decided to transfer the "business" -- either forced or
willingly.
This is especially true in such an political case -- chances are most
.IR registrars are Iranian entities. Do you truly believe they will
agree to pay money to some US based party that is confiscating their
country's properties at will...
Most likely, those registrars/registrants will swallow the costs (and
some, eventually sue the US big time, *in the US*) then move to some
other TLD.
> /
>
> 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.
> /
There is a very big difference between the gTLDs ICANN created, the
Registrar business ICANN created and the ccTLDs relationship with ICANN.
Many ccTLDs were created before ICANN existed. Many ccTLDs were created
before RFC1591 was ever published.
All those ccTLD run perfectly well and serve the public Internet (see my
comment on the Internet being 'private' above). Nobody wants this to change.
> /
>
> Still we have a pending question: what difference should be made
> between "to license" and "to delegate" a ccTLD?
> /
I am not a lawyer, but could imagine it's night a day.
From my "technical" point of view, the delegation process is the act of
recording who is responsible for the TLD. IANA, as such has no procedure
to "chose" who the registry will be -- their task is to properly
maintain record who the party is.
Licensing, is something that requires (pre-existing) regulation.
Possibly, government-style.
> /
>
> 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.
> /
As always, it is even more complex than this. :)
Consider for a moment, that there can exist an unlimited number of .IR
ccTLDs. Or, in some of these parallel realities, .IRC could be a gTLD,
or what they call it there.
We all try very hard to stick to this one reality we have chosen to
inhabit, making compromises as neccesary, because of the "guaranteed
mutual destruction" thing. Being a network of individuals, the Internet
is impossible to be fully regulated, just as it is impossible to fully
regulate individuals.
To further complicate things, to this day there are still ccTLDs that do
not charge any fee for their registration services. Further to this,
most ccTLDs do not pay ICANN any fees for the IANA service. This is
perhaps because, the ICANN does the IANA service to the USG, not the
ccTLDs. Any money transfers between ccTLD managers and ICANN are based
on "we agree to fund you" principle.
> /
>
> 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.
> /
One of the reason swhy the FOI working group was created...
> /
>
> 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.
> /
Like I said, a Pandora Box. So the Iranian Government has done
something, that the USG did not approve. They then go on an penalize
(supposedly) Iranian individuals and commercial entities, claiming they
penalize the Iranian Government. Further, because many international
entities, including without doubt many US corporations/nonprofits hold
.IR names too, they get penalized too.
Does this create any pressure to the Iranian Government (the original
idea behind this little political game). Very likely not.
> /
>
> 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.
> /
Democracy dies centuries ago in ancient Greece and Rome. Remember?
If you understand that the Internet is a network of private entities,
with their own interests -- everything falls in place. Then the
"Internet Governance" task becomes one of disseminating knowledge and
dealing with inter-personal conflicts. Even most wars are based on
inter-personal conflicts...
Daniel
> /
>
> Comments are very welcome.
>
> Thanks
> /
> Jean-Christophe Nothias
>
> /Chief Strategist,/
> /Contents and Projects
> /
> (+41) 79 265 92 75
> jc.nothias at globalgeneva.net <mailto:jc.nothias at globalgeneva.net>
> @jc_nothias
>
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