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ICANN Transparency

By on Wednesday, 24 June 2015 in Domain Names, ICANN, Legal

ICANN Transparency

As ICANN attempts to persuade the world that it deserves to be cut loose  from the apron-strings of the United States’ government, it is perhaps appropriate to review whether it is fulfilling the requirements of its founding community, never mind going forward.

The ICANN by-laws state, in Section 1 of Bylaw 3 that:

The Corporation and its subordinate entities shall operate to t’he maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness.

Now this is pretty unambiguous.  In the first few ICANN meetings this meant that anyone could participate in the work of ICANN. You just turned up, registered (at no cost), attend and speak the sessions that interested you.

The Government Advisory Committee was a special case — it was formed specifically outside of ICANN, so it is not bound by the bylaws, and membership is restricted to accredited representatives of governments and multi-national organisations.

GAC meetings were originally held entirely behind closed doors, leading to all kinds of speculations. But over the years, the GAC began to feel more and more comfortable — holding joint meetings with other constutiencies and become more transparent. And we learned that, far from devil-worship, the GAC were doing extremely useful work that quite often had a lot in common with the ccTLD community.

Unfortunately, ICANN itself seemed to be going the other way.

In recent years, the perception is that more and more meetings were being held behind closed doors. You only have to look at the proliferation of the ‘CLOSED’ tags on the schedule.

And many of these ‘closed meetings’ are unnecessarily so.

I’ve been in a number of meetings when literally none of the participant knew why it had been scheduled behind closed doors.

It’s fairly self-eviden that if there’s a meeting of the members of a particular Council, or Working Group, that the participants in that group are the only people you’d expect to be debating, but there’s no reason why the general public can’t attend, and follow the discussions.

Transparency demands it, in fact.

The only time a meeting needs to resolve to close its doors, is if, for example it is discussing staff salaries, appointments, or reviewing privileged legal advice.

It was that dangerous radical, Margaret Thatcher, who in 1962, in a Private Members Bill, brought transparency to English local government.

Given the binding nature of the by-law that requires the ‘maximum feasible’ transparency, ICANN should not be doing worse.

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Victims of terrorism versus ICANN (round 2)

By on Monday, 22 December 2014 in Domain Names, General, ICANN, Legal

In an earlier article I wrote about the court case of Ben Haim (& others) -v- Iran (& others) where the successful Claimants (Plaintiffs) were attempting to attach the Iranian, Syrian and (just for good measure) North Korean country code domain names (.IR, .SY and .KP) and wanted ICANN to hand them over, and took it to court to force it.

A DC court rebuffed the attempt stating that while top-level domains might be property (like any other domain name) they weren’t the sort of property that could be garnished.

Well, as I write this in the aftermath of the Sony hack, and what seem to be countermeasures taking North Korean off the Internet entirely, details are slowly emerging that (not entirely unexpectedly, given their historic persistence) the Claimants, or at least one of them, has launched an appeal.

What is mildly interesting is that it’s just one of the Claimants (lead Plaintiff Seth Ben Haim, and just one of the Defendants (Iran). All the Court filing says is, in essence “I appeal”.

You don’t have to be legally qualified to work out that this is a placeholder, designed to ‘stop the clock’. It also allows the Plaintiffs a breathing space so they can work out whether Washington, DC is the best forum to haul ICANN into court.

Even if, as Judge Landreth clearly foreshadows, (cc)TLDs are property, if .COM names can’t be attached in DC, then the Claimant’s may still have some difficulty with attaching TLDs (which after all, are just dotless domain names).

It always puzzled me anyway that this lawsuit was in DC. After all, ICANN is a California corporation, and the California district courts saw the first lawsuit over TLDs back in November of 1999.

Still, no doubt the Federal Appeal Court in DC is as good a place as any.

 

 

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How many UK banks will fall foul of this?

By on Thursday, 19 April 2012 in General, Legal

I am the attorney for a family member in England. That is to say, I hold an Lasting Power of Attorney explicitly executed by them last year.

The reasons one might give an LPA are explained here.  Setting up an LPA is an extremely sensible thing to do, and I commend it to anyone who is resident in England, Wales, Scotland or N. Ireland. (The law is rather different in the Channel Islands and the Isle of Man). Registration of the LPA gives effect to the powers under it.

I attempted to open a savings account in the UK today for the benefit of the person whose registered LPA I hold.  In fact what happened was I came across a list of Best Buy savings rates and one of them was the Principality Building Society.

But the Society explicitly denied the application to open the ‘E-Saver 5’ account as their terms and conditions exclude people who, unable to operate an account themselves, have given an LPA to a trusted family member of friend. I was told I could open a different account, on a postal application, but that the terms and conditions of the account would be different (and the interest rates would, I expect, not be as good!)

Unfortunately for the Principality Building Society, and any other bank having a similar condition, it appears that this is unlawful. To be precise it seems to me to contravenes the UK’s Equality Act 2010 , since disability is a ‘protected characteristic’. It’s unlawful to offer services on different conditions to disabled people as to able bodied ones.

I telephoned the Society, and the first person I talked to seem to me to be a bit offhand. I then spoke to a manager who was courteous, but confirmed their position and seemed to indicate that it was introduced “because of FSA moneylaundering rules” which I find rather hard to understand.

However, they’ve taken note of my complaint, and are investigating. An update will be posted here.

If anyone else has been affected similarly, please feel free to contact me.

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Censorship, fundamental rights and the DNS (part 1)

By on Thursday, 2 February 2012 in Domain Names, General, Legal

It seems clear to me that the next field of engagement over fundamental rights is going to involve the Domain Name System. The recent skirmishes over SOPA (the proposed Stop Online Piracy Act, recently holed below the waterline by Pres. Obama) seems to confirm this view.

The DNS is the technical system at the heart of what nearly everyone who uses the Internet does.

It enables people and  applications to locate things on the Internet. Things such as website addresses, email servers and many other things. Watch the video at youtu.be/lsutsPeCbak.

The DNS is run by a diverse group of people and organisations which evolved from the Internet’s early research within academia. This group includes universities, government agencies and private businesses and is co-ordinated at its apex by a California organisation called the Internet Corporation for Assigned Names and Numbers (ICANN).

A recently hot topic in the DNS world is something called ‘Notice and Takedown’.

That is to say, “someone” (in the British Isles this is most usually the owner of some intellectual property or an organisation such as the Internet Watch Foundation which monitors the Internet for illegal content such as child abuse images or extreme pornography) will send a Notice to an ISP or domain name registrar to inform them that a domain name (or web address) is being used by what is becoming known in the industry as ‘bad actor’.

The recipient of such a Notice is then expected to take the appropriate action; the expectation being that the domain name concerned is blocked, filtered or ‘taken down’.

Much of the activity, as you might expect, in this regard has come from IP rights-owners as well as anti-phishing & anti-spam organisations.

Now your author’s anti-spam credentials cannot be doubted but it is submitted that there are significant dangers in the understandable wish of  registrars, ISPs and others to ‘do the right thing’. One insufficiently considered action could pose great reputational or even existential risk to the ISP executing takedown. On the other hand, there are equally significant risks to inaction as well.

There is a certain amoun of protection in Europe law for ‘mere conduits’, for example, under the e-commerce Directive.

But what if a registry (rather than a registra) receives a notice drawing its attention to the fact that a domain name is being used for bad purposes?

Such bad behaviour doesn’t have to be illegal (that is to say, criminal) conduct. It can equally well be an infringment of the civil rights of a third party, such as a defamation.

In England, defamation is a very great risk for any person or organisation that can be said to publish or assist publication. Ask any newspaper editor.

The UK libel laws are archaic and arcane. This basically means that it is extremely risky and extremely expensive to be either a Claimant or a Defendant, whether willingly or unwillingly.

Indeed, it’s no surprise that one of the early cases on the principles of notice and takedown are set out early on in an internet  libel case in England .. Godfrey -v- Demon Internet.

The effects of that regime on intermediaries has been ameliorated by subsequent European legislation — the e-commerce Directive but nonetheless, it is clear that not only are there risks to an ISP or registrar or registrar in taking positive action over a domain name that is alleged to be being used for illegal (criminal) or unlawful (civil) purposes, there are risks in NOT taking action.

I predict this debate will continue for several years, and is likely to engage the law enforcement, legislative and judicial authorities in a number of countries at the highest levels.

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Posthumous pardon for Alan Turing

By on Sunday, 27 November 2011 in General, Legal, Technical Tips

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=

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Manwin’s squeaky wheel

By on Saturday, 19 November 2011 in Domain Names, General, ICANN, Legal

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 

pr0n

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.

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Don’t mention the war …

By on Sunday, 30 October 2011 in Domain Names, ICANN, Legal

A couple of days ago, at the ICANN conference in Dakar, a rumour flew around that there had been an application for redelegation of the .FK domain (Falkland Islands). And that the originator of the request was from, you guessed it, somewhere in Argentina. A quiet word with an official source within the ICANN community then confirmed that, indeed, there had been “some sort of communication along those lines”.

Historically, unlike UN or other international bodies, ICANN has been pleasantly free of the tired old arguments and flashpoints that bedevil relations between nations. Neither the Gibraltar issue, the Cyprus division nor the name of the Former Yugoslav Republic of Macedonia have ever featured in the meetings of country-code administrators Over in the gTLD world, two of the key players who have worked well together for years – well, one is from Argentina, and the other is from the UK.

There was a hint in the ICANN public forum as to where the sensitivities might lie. It may simply be a matter of a dispute over the name of the territory when ICANN produces documents.

The unfortunate thing is that the label (in this case the country or territory name) often implies much more than the content (delineating a political entity or geographic area).

For many years between 1945 – 1989, Germans born in Königsberg, Memel or Danzig would not have been allowed to visit their birthplace unless their passports were issued to show the Russian, Lithuanian or Polish name. There are many other examples. “Derry/Londonderry”, for example.

These things are all shibboleths.

In his response to Sergui in the Public Forum, Rod Beckstrom’s courtly Spanish although accented, seems extremely fluent, eloquent, and stunningly impressive.

But Sergio is misguided if he thinks ICANN should make its own lists. That way lies chaos. ICANN is not mature enough, nor capable of diplomatically squaring these circles.

And it’s unreasonable to expect ICANN to do this task, since the best minds in the FCO, State Dept, and Foreign Ministries around the world struggle with these issues.

Steve Crocker is right of course.

Then I again, you would expect me to say that, because he is agreeing with me!

In the end, all that is really required is mutual tolerance, courtesy and a determination to work together in the multi-stakeholder model. And that I believe we have in spades in this unique organisation.



SERGIO SALINAS PORTO: I’m going to speak in Spanish.

To members of the ICANN board, good afternoon. My name is Sergio
Salinas Porto. I am the president of the Argentine Internet Society
of Users. And I participate in LAC-RALO, and I am ALAC member in our
region.

Aside from all of this, I am going to talk like an Argentinian user
who is happy to be participating in this ICANN meeting and in this
multistakeholder proposal implemented. So that we can all
participate.

And I’m going to talk about the Malvinas Islands. You all know that
the Malvinas Islands is an issue that is very related to Argentinians.
And we have identified. In the study of geographic regions, that at
some point the Malvinas Islands were marked as a territorial state.

And the position that the Argentine government has had, as well as the
countries in the Latin America and Caribbean — and that position is
that the Malvinas Islands are not a state and not a territory, but
rather they belong to the national territory of the Argentine
Republic.

But I want to explain that I am not here to say that ICANN has to make
a political decision on political policies. Precisely what I want to
say is that ICANN should not take part or should not get involved in
this. Because, when ICANN speaks about territories, when ccTLDs are
created, when regions are assigned for certain ccTLDs or when services
are given to an Internet service, the RIRs, these imply stake in their
position. Especially when it is said that Malvinas or the Falkland
Islands are a territory. When a dot FK is created or when LACNIC or
something is created, this is taking the position of the Internet
community, even though the Internet community does not decide to take
this position.

We are asking two things, only two. First, that, when ICANN documents
are released, when they’re released in Spanish, that the word
“Malvinas” is used when referring to the Malvinas and then the
Falkland Islands. And, when the English documents are released, that
you first mention Falkland Islands and Malvinas in brackets as nation
states in their resolution 3160.28.

And we also ask that there be a revision on this issue and there be a
revision by the legal team so that we do not incur in the mistake of
having to make a definition in this issue.
Thank you very much. That’s all.

ROD BECKSTROM: Thank you very much for your very clear and strong intervention.

And, as you know, we use a list of the ISO 3000 — ISO 3160.
Thank you very much for the history lesson and the territorial
lesson that you gave us.

SERGIO SALINAS PORTO: There is only one suggestion (says Sergio). It would be — I know — I don’t want to say what ICANN has to do. But I think we are mature to make our own country lists. I think ICANN is mature enough to do it. Thank you very much.

.
.
.
.

NIGEL ROBERTS: Nigel Roberts, ccTLD manager for the Channel Islands.


In light of the eloquent response in Spanish by the CEO to the
previous question relating to the Falkland Islands, in the wise words
of Jon Postel, would the board agree with me that ICANN should not be
in the business of deciding what is and is not a country?


STEVE CROCKER: As you heard, we use the ISO 3166 list. That was a very, very smart move, very wise move laid down by Jon Postel long before we were formed. Served us well. There are, of course,
controversies. One of the things you try to do in a situation like
this is not take on all possible controversies. So it served us
well, and that’s what we do.

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.APPLE -v- .APPLE?

By on Thursday, 22 September 2011 in Domain Names, ICANN, Legal, Music and Culture

@TCompuMark said recently on Twitter that

“Some interesting/complicated #gTLD objections to come from when #brands are also generic terms.”

In the root, there’s nowhere to hide.

“Apple” is a trademark. But whose is it? In fact, as we all know, two very well know companies, one in computers and an older one, in the music industry have rights to ‘APPLE’ in the context of computers, and music respectively.

But what if I, say, wanted to start a register of producers of apples. Why should a computer manufacturer and a record company have a right to stop me. The answer is, in terms of fundamental rights, that they don’t.

Yet the ICANN club seems to be geared up to give brand holders prior rights over areas that their brand is not valid in.

Now suppose Apple Computer apply for .APPLE. Apple Records object, causing the application to fail. Mutally assured destruction.

What in fact needs to happen is that the two need to cooperate on a joint venter (say .APPLE Registry LLP in which they are equal partners), obtain the name, and work out for themselves how to issue the names under .APPLE.

Sensible? Of course.

Would it ever happen. Well, I will eat a pickled herring if it does!

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Commission Paper 4: Corporate Governance

By on Wednesday, 7 September 2011 in Domain Names, ICANN, Legal

The Commission’s paper on Corporate Governance is densely packed.

It’s certainly true that it sometimes seems that the compostion of the ICANN board sometimes seem  a bit like choosing poachers for a committee to decide on the rules for gamekeepers.

So it seems there’s some significant merit in requiring ICANN to address the Commission’s concerns in Paper 4.

And whilst I have the highest of respect for former ICANN Chairman, Peter Dengate-Thrush, a tireless and indefatigable player in the ICANN drama since its early days, for him to take up a highly-paid Board position with a company that stands to benefit dramatically from ICANN’s new gTLD program is unfortunate to say the least.

When UK civil servants join private industry, there is a period of purdah. Something similar should be considered by those responsible for ICANN’s corporate ethics.

Oh, and by the way, can anyone tell me who that is?

 

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

By on Wednesday, 7 September 2011 in Domain Names, ICANN, Legal

In our continued look at the European Commission’s Six Papers on the functioning of ICANN, even though Part One of our look at Paper 3 seems to support the view that functioning of Member States’ ccTLDs might be ultra vires the Commission’s powers as laid down by TFEU.

But let us nonetheless examine in finer detail the proposals in Paper 3, and consider the authority for the various propositions contained in them

The paper starts out with several assertions, many of which are, once again, perfectly correct, although it is sometimes seems difficult to match some of the conclusions with the premises.

 

The treatment of ICANN by ccTLDs has always been a sensitive political issue. 

Entirely correct. But it seems this not so much because the operation of ccTLDs are a matter of national sovereignty.

The extent to which it  may be a matter of national sovereignty is a matter we must return in detail on another occasion as ‘national sovereignty’ is a term of art having a specific meaning, and as has been shown in Part 1, national sovereignty may be partially given up by national Parliaments to the European Union in some areas.

Most likely it is a sensitive issue because often in the past, ICANN (in its operation of the IANA function, whether apparently under contract or not) has apparently been (a) hamfisted, (b) careless of the distinction between policy-making and executive duties,(c) and unmindful of natural justice and fair procedure.

As evidence for this proposition, take a look at the ccNSO’s Final Report of the Delegation Re-delegation and Retirement Working Group (see Note 1, below) which was released in February 2011.

It documents, among other things, that “there are several documented cases of failure to minute Board discussions regarding the re-delegation of ccTLDs contrary to the procedures as laid out in the ICANN Bylaws” and that “there are significant concerns relating to accountability and transparency of ICANN”.

Even further: “by the end of 2009 the IANA Reports had dropped all mention of the GAC Principles”.

 

Tunis Agenda Declaration

The author of Paper 3 rehearses and re-adopts the statement in the Tunis Agenda that:

“Countries should not be involved in decisions regarding another country’s country-code Top-Level Domain (ccTLD). Their legitimate interests, as expressed and defined by each country, in diverse ways, regarding decisions affecting their ccTLDs, need to be respected, upheld and addressed via a flexible and improved framework and mechanisms”.

Once again, this appears to be a perfectly valid statement, and it is one of course which is already familiar to many.

The identical principle must apply equally to the Union as to third countries.

It was submitted in Part 1 of this analysis that the Union should not be involved in decisions regarding Member States’ country-code Top Level domains unless the issue falls within the exclusive competence of competition rules, or within the shared competence of the internal market.

And even where the the internal market is concerned, subsidiarity probably applies which confirms that decisions concerned operation of ccTLDs cannot be within the powers of the Commission.

 

Problems in the way ICANN-IANA have dealt with delegations and re-delegations.

It is undeniable that there have indeed been problems in this regard, as noted above and elsewhere.

(a) ‘requirements imposed by ICANN on third country governments requesting a redelegation’.

First of all, ICANN is a private corporation, incorporated in California, and as such is subject to the rule of law. (It is also a requirement of membership of the Union that Member States subscribe to the Charter and the rule of law).

It is set out in the policies applicable to creation of country-code Top-Level Domains what the procedures are for appointment of, and change of manager. Among which is that the IANA must receive a communication from the existing manager stating that the existing manager consents to the change.

To do otherwise than what is set out in existing policy would appear to be unlawful and open to challenge.

(b) Requirements imposed in respect of IDNs

Here of course is where it gets interesting. In approaching this I would merely ask the question:

“Where is the policy on IDN ccTLDs, and to what extent is ICANN following it?”.

It seems to me that the unfortunate difficulties currently being experienced by the Union in the matter of IDN versions of .EU  can be easily explained by the answer to the above question.

(However, I must make, in passing, a statement that despite this analysis, I think ICANN has been obstructive, short-sighted and stupid and I side with the EU over their difficulties in dealing with ICANN over .EU IDNs)

Ironically one should always bear in mind that the very genesis of .EU arose when, on 25th September 2000, the ICANN Board took a decision to satisfy an apparently genuine need but which decision appeared to be ultra vires the policy in force at the time. The relevant Regulations for .EU followed that decision some years later. (It’s entirely human, although a little inconsistent, to get what you want you want by persuading ICANN to bend the existing rules, then to complain later they are not following rules when some other issue arises.)

 

(c) Unexplained delays in update root zone information.

This complaint is entirely correct. And I speak from personal experience. of 15 years in dealing with such requests.

In 1997 top-level domain operators were able, using the automatic systems of the InterNIC, to see Root Zone information updated and functioning in the root within approximately one hour.

It seems to me, as it seems to many, that the several ‘choke points’ that have been created since that facility was dismantled, following the creation of ICANN, do not serve a purely technical function.

It is imperative for the success of e-commerce, within the territory of Member States that such intentional choke points are removed. Interestingly this point, of all the points in Paper 3 probably is most likely to  fall under the shared competence of the Union with the Member States (internal market, interoperability).

It is therefore fortunate that the Paper’s author is 100% right in respect of this one point.

 

2. Possible initiatives

Whilst it the proposed initiative is understandable, it is premature and appears to be based on a simplistic view of the situation.

The nature of the relationship between national and territorial ccTLD managers, ICANN, IANA, the US Government, national government (if there is one), and other relevant public authorities (e.g. territorial government, if applicable) is complex and not as well-defined as some might wish and worthy of much more detailed study.

 

3. Possible implementation

The reference to the proposed in the draft IANA contract regarding national law appears to be over simplistic.

Of course, the deference shown to national and territorial law and jurisdiction and the recognition of principle of subsidiarity is very welcome.

Nonetheless, ICANN must be required to hold itself to the standards set out in ‘relevant international law’, and may not be required by ‘local law’ to act in any way that is inimical to standards of fundamental rights as accepted by civilised nations, and as are set out in, among other places, the European Union’s Charter of Fundamental Rights.

Surely it cannot be the position of the Union cannot be that ICANN/IANA should (for example) should be required to breach (say) Article 17 of the EU Charter if a provision of Syrian law required the expropriation of assets belonging to the .SY operator unnecessarily or disproportionately even if it was in accordance with a lawful decree of the current Syrian government?

It seems to this author, that tt would be entirely inappropriate the IANA Contractor were to be placed in a position where it may be required by being bound by a country or territory’s  law and jurisdiction to carry out any act that was in any way repugnant to the US Constitution or the European Convention.

 

Note 1: For information: this author was a member of the Delegation Re-delegation and Retirement Working Group of the ccNSO.

 

 

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