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

[McTim]

Guru,

You would best take JC's "facts" with a grain of salt.

I will attempt to point out his major errors, having no time for the minor
ones.




On Sun, Jul 6, 2014 at 6:59 AM, 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
>


Only a small corner of IG.  The first big case of this nature was due to a
French court decision many years ago. (France v. Yahoo IIRC).  That case
had a much larger impact on the Internet than the current case ever will.




> , 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.
>

It's only one oversight, the IANA authorisation role is part of the
contract.


>
>  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). 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.*
>

I'm trying, but JC doesn't seem to want to understand the facts unless they
conform to his world view.


>
> * 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. *
>


Gov'ts do think they have "sovereignty" over their ccTLD, in some cases
they do not.




> * 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*
>

Sure they do.  Interconnects are overwhelmingly done by private parties,
not public authorities.



>
> * , 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.*
>

This doesn't mean that the .ir zone is the "property" of the Islamic
Republic.




>
>
> * 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 a "function" that ICANN carries out.



> * 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).*
>


He conveniently forgets this will go away sometime around September.




>
> * 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. *
>

Ummm, they are all already delegated.



> *IANA is also responsible for re-delegation.*
>


true enough.



>
> * 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.*
>

I think this is debatable.



> * What can the US District Court do about this? Ask for the plaintiffs to
> become the unique registry for .IR?*
>


They probably could, bu they didn't.

If they did, they wouldn't succeed.




> * The new registry would then earn money thanks to the Iranian registrars
> that would keep using the .IR. Not a bad deal.*
>

I don't thinkthe .ir zone is a big money spinner.  Very few ccTLDs are,
except for the big ones.


>
>
> * What would IANA consider as a possible reason to terminate the
> delegation of the .IR?*
>

https://www.iana.org/help/cctld-delegation




> * 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).*
>


There are 2 types of Registries.  Generic TLDs each have a contract with
ICANN.

ccTLDs generally do not, although some have signed MoU's.




> * But who said that this could not happen when it comes to a registry
> issue?*
>


No one has ever said that.  It has always been the case that a Registry can
have a TLD removed from it's stewardship, this applies to ccTLDs and gTLDs.



> * 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.*
>

Even if there was a Treaty, I doubt the US would sign on to it (witness the
ITRs), so a US District Court wouldn't worry about such a Treaty.



> * Again, that brings a very serious challenge to the global, transnational
> governance of the Internet. *
>


No, it doesn't.  This is what WK was, I think, meaning when he said it was
nonsense.  the nonsense is the tempest being made in a teapot.





> * ICANN is now in a poor situation.*
>


Umm ICANN is in a GREAT position.  it is largely managing the transition of
itself away from US oversight.  It is "writing it's own ticket"



> * 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.*
>


yes, we shall.



>
> * Still we have a pending question: what difference should be made between
> "to license" and "to delegate" a ccTLD? *
>

The word license is not used in Registry Agreements for new gTLDs to
describe the relationship between the TLD and ICANN.  The word delegation
is, in other words, there is no pending question.



>
> * 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.*
>

correct.



> * If the .COM is the property of ICANN or DoC, then .IR would then be the
> property of its current tenant. *
>

This sentence contradicts the previous one.  .com is neither the "property"
of either DoC or ICANN.



> * 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.*
>


A. the Court is not asking for re-delegation

B. if I rent a car, it is useful to me and therefore an "asset" in terms of
getting things done, but not an "asset" in terms of property.  A Court,
can't "seize" a car I've rented, as it is not my property.




>
>
>
> * 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.*
>


If you read the Writ, it asks very specific limited questions.



> * Who said that the link between Iranian registrars and ICANN did not
> exist.*
>

If they are ICANN accredited,of course there is a link, but that is a
complete non-sequitur.



> *  There are much more than the first-level domain (ccTLD) to be
> considered such as the second-level domain registration by registrars.*
>

Why?  Is it the case that ccTLD Registrars pay monies to ICANN for 2nd
level registrations??  I have never heard of this.



> *  What's about IPs? All of that enters into IANA, a department of ICANN,
> duties and performance.*
>


No, it doesn't.  IANA doesn't Allocate IP addresses to IRAN.  they may have
done 20 years ago, but they did not recieve money for doing so, and in any
case, those IP address Allocations are now in the RIPE database, which is
under the auspices of a Dutch non-p[rofit.


--
McTim
"A name indicates what we seek. An address indicates where it is. A route
indicates how we get there."  Jon Postel
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