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Does Christine W. exist or does Barclays Bank use fake names?

Following the takeover of the business of another financial institution, I found that I now have an account and card with Barclays Bank. I needed some information from them fairly urgently, so I contacted them a week or two ago.

In reply, I received a letter dated 28th November signed by a certain Christine W……

The telephone number on her letterhead was a UK 0844 number. As I had a query about the contents of her letter, not unreasonably (in my opinion) the obvious course of action was to telephone her at the number on her letter.

The person who answered the telephone said he’d never heard of her. He also told me he was unable to transfer my call to her.

When I asked why I could not speak to the person who had written me the letter, on the telephone number she had on her letterhead, he was somewhat at a loss as to how to answer. He eventually tried to tell me was “because we are globally certified”.

Whatever that means.

Eventually, after a long wait of 20 mins it was patiently explained to me by his supervisor that as they were in India, they couldn’t transfer me to the person who had written me the letter.

Nigel’s First Rule of Customer Satisfaction: Any employee who does something for a customer should have task ownership and take responsibility for the contents of their answer and should be ready to deal with any followup.

I’m now getting a nagging feeling that maybe “Christine W.” doesn’t actually exist. Perhaps they’ve taken a leaf out of the Prime Minister’s book? I intend to find out whether that’s the case or not.

If she does exist, I look forward to speaking with her eventually about my original (and routine) inquiry.

But how do you think should I react if it turns out that she doesn’t exist? (It wouldn’t be the first time I’ve come across letters signed by non-existent people).

After all, in these more security conscious days, Barclays Bank would certainly get more than a little upset if we were to use a fictitious name when we deal with them …

Christine, are you out there? Talk to me please!

PS: if anyone from Barclays Bank management is reading this, particularly if you are the Christine who wrote to me yesterday, please use the email form to contact me.


Posthumous pardon for Alan Turing

Unless you are a Computer Science academic, you may not know something that was once a national secret of the highest classification … that it was Alan Turing, along with colleagues, who invented the first computer.

This was the work, carried out in secret in the 1940s from which all PCs, laptops and smart phones that we use today owe their inheritance.

His work during the Second World War at Bletchley Park, which culminated in the building of the code-breaking computer Colossus and breaking of the enemy ciphers, including “Ultra” and “Shark”, shortened the war by approximately two years and saved hundreds of thousands of military and civilian lives, both British and German.

It was only in the latter part of the 20th Century were the contributions of the codebreakers recognised, because of course, it was their duty to keep Mum.

And they all did.

Sixty years on from the early Fifties, it is almost impossible to imagine what our society was like, that it then persecuted such a national hero for who he was. That the police and the Courts used the law to administer dangerous drugs in attempt to change his behaviour.

If one thought about this, one might well conclude that “chemical castration” in order to attempt to change a person’s orientation is the State acting in a way that differs in degree but not in kind from some of the things the Second World War was fought to end.

If you live in the UK, Channel Islands or Isle of Man, or if you are a British Citizen resident abroad, please sign the e=


Manwin’s squeaky wheel

ICANN has been taken to an Independent Review Proceeding by Manwin Licensing International.

Independent Review is a form of arbitration, which is provided for in ICANN’s By-laws.

What is ironic, is that this suit appears to be filed on behalf of a number of major players in Internet


That is, the people behind such hit websites as ‘YouP*rn’ and ‘Br*zzers’ among others. (No, I’m not going to hyperlink them — Google is your friend if you really are curious ).

Internet porn has been major beneficiaries of the US First Amendment and the constitutional law doctrine that protects distasteful speech (such as ‘Net porn itself, or demonstrating about military presence in Afghanistan or similar at soldiers’ funerals!)

But it seems to be sauce for the gander tine when someone else wants to exercise their rights of free expression (that is to say, expression in the form new TLDs, and specifically in the form of .XXX) in a way which the pornsters don’t like.

In Europe the equivalent of the First Amendment is Article 10, which all Governments are under a legal obligation positively to protect.

It says: “Everyone has the right of freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without inference by public authority and regardless of frontiers.”

Pretty clear.

It’s worth pointing out that free expression is not unlimited.

Restrictions can be placed on it, for example, balancing and protecting the rights of others. (Libel laws are an obvious example; there are many others).

The difference in approach can be see that, in the Land of the Free protesting at a soldiers funeral and causing distress to the bereaved is constitutionally guaranteed expression (Snyder v Phelps) where as in the UK you’d probably get locked up for Behaviour Likely To Cause a Breach of the Peace.

Burning the flag is perfectly acceptable behaviour in the USA, while burning poppies on Armistice Day attracts a criminal conviction, albeit attracting a fine. (Poppies are worn in remembrance of the dead on Armistice Day, our equivalent of Veterans Day).

However, the default position in Europe as in the USA, remains, that you have the right of expression, unless a qualifying factor is present and can be shown to be.

Article 10 goes on to say say: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.

So surely this would mean that presumption must be that proponents of newTLDs can express themselves in the way the want to unless restrictions are necessary in a democratic society.

Censoring .XXX does not protect health or morals — there’s plenty enough internet porn under .COM, and I don’t think Manwin are arguing here for the content restrictions that this caveat might allow, anyway. They probably don’t want to open that door!

The only other aspect in 10(2) that they could pray in aid is the protection of the rights of others — in this case the very real property rights of Manwin and their allies. After all, intellectual and intangible property are equally property as any other kind.

And it’s a reasonable point, particularly as Luxembourg headquartered Manwin is, on the face of things, a European company, and Manwin therefore inherently has these Convention rights

But the starting point of Article 10 is that the expression must be allowed, and it’s only after considering the balancing exercise of considering the harm to Manwin’s Article 1 (Protocol 1) property rights, could the censorship they seem to be seeking be lawful.

And, this, I suggest, will be an uphill struggle.

Although Manwin’s property rights are in essence, and in law, exactly the same property rights that, for example, Google and Facebook have in their brands, Manwin’s task is made no easier by the unredeeming nature of their own content.

And the harm that they claim — well, why should they have special treatment above the thousands of WIPO cases over other, non-porn relating cybersquatting. A proper UDRP process and timely access to the Courts, is really all they can demand, and .XXX, and the forthcoming newTLDs will, at ICANN’s insistence, deliver this.

In conclusion, it seems to me that Manwin’s Independent Review Claim is just a case of a squeaky wheel not realising it is already sufficient lubricated, and demanding more oil.


European Commission backpedals? Restating the obvious.

“Clearly an organization like ICANN, which has been conferred with important responsibilities with clear public policy impacts should meet the highest standards of transparency, accountability, and independence.”

These are the words of Jonathan Todd, a public spokesman for the European Union, reported by Kieren McCarthy.

It is undeniable and unarguable that ICANN Board decisions have public policy implications and impacts around the world.

So that is why bodies with responsbility for public policy, such as national and territorial governments, the European Union, the Council of Europe and even the Olympic Committee must be important voices in the ICANN process.

And so are the figures we love to hate, the intellectual property lawyers.

And civil society and human rights advocates as well.

It has been said to me, by way of negotiation theory, that sometimes the indicator of the best deal is that each party is equally UN-happy.

The words of Mr Todd are a statement of the obvious. But we need to be reminded of them.

I am sure that neither TLD Holdings plc nor Peter Dengate Thrush envisaged the furore that the announcement of the former ICANN Chairman’s new job would provoke.

That omelette can’t be turned back into eggs, but ICANN’s role must now be to produce even-handed, workable guidelines for the future that pass the balancing act test of being fair on the employee or former officeholder, as well as upholding not only the absence, but the appearance of absence of conflict of interest.

I wonder, is everyone equally unhappy with ICANN yet?


Profile building?

According to information received from Kevin Rose (@kevinrose) I’m not doing enough to build an audience for my writings or my Twitter account (@nigelrbrts).

With that in mind, I’d be happy to get suggestions on how to fix this. was really intended as a place for random jottings, mostly about life in the Channel Islands, and a few technical articles. Michele Neylon (@mneylon) kind of encouraged me, and is hosting it on one of his personal machines.

In recent weeks its kind of been taken over by work-related articles to do with ICANN, privacy, human rights and so on.

So one question I that is on my mind is whether to keep this as this rather catholic mix, or to (for example) spin off the ICANN stuff.

There’s a Contact Me link above. You don’t need instructions on how to use it — drop me a line with your thoughts. The best suggestions will get an Alderney t-shirt. (If you don’t know what or where Alderney is, click on the See the Small Island link, above, and watch the movie).


Commission Paper 6: Respect for applicable law.

Of all the six papers, this one appears to be the most significant.

It says “ICANN’s role …. is a central issue for competition authorities such as the European CommissionI”.

You bet it is!

ThisPaper is an indication that the sleeping giant of DG Competition has finally woken up to the fact that rather than replace a single gTLD registry (Network Solutions as was) with liberalised market, the creation of ICANN has resulted in a structure which has many of the characteristics of a cartel.

There is absolutely no question about the Commission’s competence here.

As noted earlier, competition matters affecting the Single Market are an exclusive competence of the Union. In other words, the Union is the sovereign power here not the Member States.

The most fundamental thing about European law in the competition sphere is that it is right at the heart of the Union, stretching almost right back to its roots when six countries signed the Treaty of Rome.

And the fundamental point when considering any question of Single Market Competition enforcement is this :-

“Arrangements between undertakings” are illegal when they involve “prevention, restriction or distortion of competition within the common market”. (Article 81 ex 85 TEU)

As this is part of the Treaty, it is ‘directly applicable’ in the Member States. This means it IS already the law of all 27 countries who are part of the Union without their Parliaments needing pass additional legislation. It is a major, major, part of the acquis communitaire.

It makes intentional cartels are illegal. No surprise there. But unintentional “arrangements between undertakings” are illegal too. The effective word in the law is “or” not “and“.

Now, there’s no doubt that ICANN is at the heart of a number of ‘arrangements between undertakings’, particularly in the gTLD space.

Does any of them have the intention of distorting competition. Well, no. In fact as noted in the Paper ICANN’s constitution seems to require it to promote competition.

But do any of these ‘arrangements’ in ICANN have the effect of ‘prevention, restriction or distortion of competition’ in the Single Market?

The answer to this question is left as an exercise for the reader, but it seems that author of the paper seems to think that they very likely might do, and I would agree.

It would be interesting to see how European competition law can be integrated into a contract with no consideration between the US government and a California corporation!

I don’t think the USG would necessarily have the political will to defend such a move before Congressional or Senatorial interest where there may still be a residual view of ‘why are people outside the US trying to tell us how to run our Internet?’.

But that’s not necessary.

gTLDs by definition are designed to be operated in all 27 Member States. And therefore the EU can take any enforcement action it wishes to, if it feels ICANN is in breach of competition law.

It’s particularly handy that ICANN’s Brussels office is right next door to the Commission.

Really handy, and not far to walk when they decide to launch a raid, like they did to the mobile phone companies

Ancient Chinese curse: May you live in interesting times!


Commission Paper 5: Finance and Staff

There’s actually not much to comment on here, apart from to note that Finance and Staff matters have been causing concern in the ICANN Community, including from senior members of it and therefore the Commission is right to question matters. (One need only look at Lesley Cowley’s quizzing of soon to be ex-CEO Beckstrom to realise there is a bit of piscine odour about the staff situation!)

Developments in this area should be watched carefully.


Commission Paper 3: Country-Code Top Level Domains (Part One)

Whilst it seems that there a number of things in the other five Papers that might attract qualified support, this is the one in which the author appears to this writer to be most off-track.

In order to analyse this one top-down, we need to take a somewhat turgid but necessary detour into the Constitution of the European Union, and the legal sources of its powers and its competences.

Please bear with this, as I believe that the startling conclusion I reach should be worth the journey.

The European Union

The European Union is notable in that it has, and exercises sovereignty. The sovereignty that it has belongs to the Member States, who agreed to pool their sovereignty in certain areas so as to improve life for all Union Citizens.

The Treaty of Lisbon sets out principles on how sovereign rights are transferred from the nation-state to the Union and guarantees that these principles should not be infringed.

These principles are conferral, subsidiarity and proportionality.  Competences that are not conferred upon the Union in the Treaties must remain with the Member States.

Conferral means that the Parliaments of Member States may transfer responsibility from the Member State to the Union when they consider common action is preferable.

Subsidiarity (a concept that should be familiar to many people in the context of ICANN), means that action should not be taken at a higher level (i.e. by the Union) that is more appropriately taken at a lower level (i.e. by the Member States).

Proportionality means that if (and only if) it is agreed by the Member States that action at the Union level is appropriate, then the most appropriate method should be used (for example, there is no need to use legislation where less complicated methods are available).

The Treaty on the Functioning of the EU sets out that the EU has three types of competences: ‘exclusive’, ‘shared‘ and ‘supporting‘ which are set out in Arts 3 to 5 TFEU.

The internal market, for example is a shared competence with the Member States, although competition rules in the internal market is an exclusive competence. (See also Note 1 below).

The supporting competences do not appear to have any relevance to ICANN policy.

Therefore, the conclusion of this first look at Paper 3 is that it appears that it may be the case that :-

1.The operation of Member States’ ccTLDs does not fall within the exclusive competences of the Union unless the mattter relates to competition rules of the internal market.

2. The operation of Member States’ ccTLDs does not fall within the shared competences of the Union unless the matter relates to the internal market or interoperabiltiy of Member States’ national networks with TEN.

3. The operation of Member States’ ccTLDs does not fall within any of the supporting competences.


most of what is proposed by the European Union in Paper 3 would appear to be in relation to matters that are reserved to the Member States, and not within Arts 3 to 5 TFEU.

If I am right in this view,  Paper 3 should be opposed by Member States for that reason alone. I would welcome comment or contrary argument.

(Part 2 of this look at Paper 3: ccTLDs will look at the content of the paper itself.)

Note 1:

It is interesting to note that “trans-European networks” are also a shared competence.

It seems entire reasonable that issues of technical interoperability and interconnection between national networks are a shared competence, but it seems likely to this author that the creation of national policy for relationships between Member States’ national networks (it seems clear that ccTLDs are not a part of TEN) and non-European networks cannot be either an exclusive or a shared competence.


Commission Paper 1: A more effective GAC

The Commission‘s first paper is posted here at

In section 1, the general description of the issue, the complaint appears to reduce to the fact that involvement in ICANN is complex, time-consuming and difficult to keep up with. Well . . . .EXACTLY! This is the exact same issue we have been wrestling with in the other constituiences. When the paper’s author says “efficient work flow process and dedicated support from a professional and adequately resourced [GAC] secretariat” is required, how can we possibly disagree?

Incidentally, that’s not to say that we don’t get such support in our own constituencies — I’ve been particularly impressed by the support given to the Delegation and Redelegation and Framework of Interpretation Working Groups of the ccNSO in recent months.

A note of caution though. It does not seem obvious to me that GAC consensus must necessarily always represent ‘the global public interest’.

Indeed, I am not sure that it’s easy to identify the global public interest in many areas. Compare and contrast China’s public policy on freedom of expression with that if the USA, for example.  A consensus within GAC on freedom of expression issues which including China, must necessarily be a compromise and thereby inevitably water down the strong protections of the First Amendment or Article 11 of the European Union Charter. Syria, and up until a few weeks ago Libya will have had other opinions about ‘the public interest’ too!

But these are not new issues. The Foreign Ministers of the Member States and other countries square such circles daily.

The crucial issue arises when it is said that:

“There needs to be agreement at the political level that GAC members will commit sufficient resources to GAC processes and be represented at a sufficiently high level to ensure the political legitimacy of GAC advice”.

Here I couldn’t agree more.

Such an agreement, at the political level, would appear to be in everyone’s interest, whether you are looking at this from the public or private sector.

Regrettably ICANN (the corporation) has neither the power, the jurisdiction, nor the competence to achieve that goal.

I hope that agreement and those resources can indeed be found at the political level.





Another reason ICANN should respect human rights

In a recent WIPO UDRP decision the learned Panellist explicitly recognised that fundamental rights (in the case, the right to freedom of expression) was not limited to the United States.

What is astounding about this, is that anyone could have ever thought otherwise!

The travails suffered by Europe in the 1940s resulted in a recognition of these fundamental values. (I see physical evidence of this every day — there is are three former forced labour camps within ten minutes walk of the Registry offices!).

It really is time for ICANN to stop procrastinating, and recognise that the entire set of values that are set out (inter alia) in the Universal Declaration of Human Rights are “relevant” to its work.

Or is it the case that it is simply afraid that it is too high a standard for it to maintain?


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