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

By nigel on Tuesday, 6 September 2011 in Domain Names, General, ICANN, Legal

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.

then

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 2: The New GTLD Process

By nigel on Monday, 5 September 2011 in Domain Names, ICANN, Legal

Milton Mueller criticises the second European Commission non-paper, which is on ICANN’s proposed introduction of new gTLDs, here.

I can’t remember a time when Milton wasn’t involved in ICANN. Indeed it’s very likely there was never such a time. I may be wrong, but I suspect I first ran into Dr Mueller during the International Forum on the White Paper in 1998, before ICANN’s very creation. (If it wasn’t then, it was at one of the very first ICANN meetings, in 1999).

So Milton’s served his time. He’s not a newbie. But just like one shouldn’t criticise Mr De Graaf for being a newbie, one shouldn’t automatically accord Dr Mueller excessive deference to his experience, undeniable expertise and undoubted knowledge.

Fortunately, it appears that Milton is mostly right in his take on Paper 2. But Milton’s critique is pretty densely packed and I wonder how many people will read down to the explosive conclusion. Which is strong stuff indeed.

Emily Taylor is also right when she points out, also in response to the .nxt leaks, that human rights are at the forefont of the revolution the Internet has wrought and that the Commission appears to be “playing into the hands of governments whose values it should not share.”

What strikes me as odd in the whole GAC – ICANN interaction is that no-one, seems to be prepared to look at this from the point of view of fundamental principles. For example, to me ICANN seems at pains to close its eyes to any discussion issue of human rights. And it seems to me that the civil society people have an overwhelming US take on things.

All this is beginning to convince me that the absolutism of the First Amendment is not superior to its Council of Europe equivalent, which seems to take a slightly different along approach on the path to the same goal.

Now, it seems to me that the most important sentence in the Commission’s Paper 2 seems to be this:-

‘They also present GAC members with the unwelcome possibility of having to determine the merits of very politically sensitive or divisive issues related to national identity, freedom of speech, human rights and ethnic diversity’.

Again, how true!

And not only extremely unwelcome, probably extremely difficult and inconvenient for the GAC to undertake too. One need only look at the situation in Syria and Libya at the moment to realise that some sovereign nation-states cannot be trusted to protect the most fundmental of rights, such as the right to life.

What chance then that a body such as the GAC can reach a consensus on the balancing act between freedom of expression and the right to privacy, or between the right to (intellectual) property and freedom of expression? Such are the exercises that the Strasbourg Court (and also, less frequently, the Luxembourg Court) are called upon to make.

Now the interesting thing is that to me, it is clear that the paper’s author is wholly cognisant of the obligation of the Commission (as with all the agencies of the Union) to respect fundamental rights as human rights are mentioned within the paper. Indeed, if the Strasbourg case law is regarded as binding upon the Union¹ then the Commission is bound in law by the positive obligation to promote the fundamental rights. It cannot abrogate that obligation by declaring it to be unwelcome.

Proposals to pre-regulate content that owe much of their heritage to the army of IP interests and their legal advisers must be tested in the balancing exercise before they can be found to be legitimate. (An interesting case to examine on another occasion might that which came out of the marriage of a famous American film actor to another actor, equally famous in Britain. Their claim involved IP rights which they had sold to a tabloid magazine, privacy rights and the rights of other section of the media to engage in what would probably be, in the USA, First Amendment protected speech.)

The obligation on the Commission to see that rights of property owners (e.g. IP rights) are be protected is undeniable.

But freedom of expression rights are definitely engaged here. And in the balancing exercise, any restriction on freedom of expression in the pursuit of the protection of property must be (a) lawful, (b) necessary in a democratic society, and (c) proportionate.

To be an allowable restriction on the right to expression, all three limbs of the test must hold.

And I submit that the position of the Commission in Paper 2 fails on all three.

I seems to me that the most important facts we must bear in mind when dealing with this appears to be

1. “a top-level domain name string is in itself a form of expression”;

2. The string itself is not the content that it may be used as a route to find (think of the .XXX controversy); and

3. (as appears crystal clear from RFC1591 and its predecessors), a top-level domain name is a domain name like any other.

Lest the absence of any dots in TLD names confuse one may ask a supplementary question as follows — should the same regulations that are proposed to be imposed upon new TLD regstrites apply equally to the operators of existing or future domain name registries at the second level of the DNS, such as CentralNIC‘s UK.COM, or EU.ORG. And if not, why not?

It seems to me the real question the Commission’s legal advisers should be asking itself is this.

What might the potential consequences be of the Commission itself and its staff involved working to promote a system which apparently contravenes the EU Charter?

I would put real money on any bet that noone from Havana, Beijing nor Tehran will be there in Strasbourg or Luxembourg if the Commission ends up in a position where it has to try to defend the contents of much of Paper 2.

^{1 Technically, judgments of the Cour Européenne des Droits de l‘Homme are declaratory, albeit the 47 Member Countries have a solemn and binding obligation in international law to enforce them. However, one of the main purposes of the European Union’s Charter is to make fundamental rights binding on the institutions of the Union, and therefore they would be taken into account in any question before the Cour de Justice de l’Union Européenne judgments of which are binding on the Union and the Member States.}

Initial reaction to Commission’s informal papers

By nigel on Friday, 2 September 2011 in Domain Names, ICANN, Legal

It seems to me that since yesterday there has been more than a couple of domain industry Chicken Littles who are extremely worried about the structural integrity that part of the atmosphere that is visible from the surface of the Earth.

According to long-time ICANN commentator Kieren McCarthy, in different parts of the dot-nxt.com website here and here, the author of the non-papers, Dhr. de Graaf seems to be described as both “a newbie” and “divisive”. (Do non-papers, have non-authors, I wonder?)

The first, newness, is hardly a sin. We were all newbies once, even those of us who have been around the internet for ever. (I remember the day the tourists were kicked off the ARPAnet – that makes me feel old!).

And for heavens’ sake, we must welcome the diversity of opinion of new contributors, particularly from international organisations having a unique nature as does the EU. For those of us in all parts of Europe (not just the Member States) the Union plays a very significant part in our daily lives and it is incumbent on us all to learn to love it, or at least understand it better.

Secondly, divisiveness. If that means taking a new and different opinion, then so much the better.

A controversial opinion can be misinformed. It can be illogical. It can be just plain wrong.

But differing opinions can only be divisive if we let them divide. A diversity of approach, again, contributes to synthesis, and is to be welcomed. (I suppose it’s inevitable that I’m now going to be know as the divisive oldie.)

So having despatched with the apparent ad hominem objections to the attributed author of ‘Six Non Papers’, we should turn to what they actually say, and what they might, if they become accepted, mean for ICANN and the DNS.

While some of the contents may raise one or two hackles, it is not impossible that some of you might be reasonably and pleasantly surprised at others. Let’s see. Stay tuned as we shall look at Number One out of the Six in the next episode. BCNU

Another reason ICANN should respect human rights

By nigel on Tuesday, 26 July 2011 in Channel Islands, Domain Names, General, Legal

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?

Intellectual property is a human right

By nigel on Sunday, 24 July 2011 in Domain Names, General, Legal

The European Union’s Charter of Fundamental Rights states, at 17:

1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law insofar as is necessary for the general interest.

2. Intellectual property shall be protected.

Why is Article 17(2) in particular important?

Art. 17 itself is based on Art 1, First Protocol ECHR which reads as follows:

‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.’

This is a fundamental right that is common to most nations that have written constitutions,and even some that do not (like the British Islands)

Self-evidently, intellectual property can be equally valuable as other intangible property (such as a right to collect a debt).

It’s very important that our modern society recognises the importance of such things and protects intellectual property, in the same way it protects realty and personalty.

And where the right to have your intellectual property protected clashes with other fundamental rights in a democratic society, such as freedom of expression, a balancing exercise needs to be undertaken, in exactly the same was as the familiar balancing exercise between the right to private and family life on the one hand and the right to freedom of expression on the other (The tensions between the latter being very evident in the British news at the moment).

ICANN and Human Rights

By nigel on Wednesday, 29 June 2011 in Domain Names, General, Legal

(I sent the following to Rod Beckstrom today)

Rod Beckstrom
Chief Executive Officer
Internet Corporation for Assigned. Names and Numbers
4676 Admiralty Way, Suite 330
Marina del Rey, CA
90292-6601.
USA

[Docket No. 110207099-1319-02]

OPEN LETTER

Dear Rod:

It was good to see you in Singapore, if only fleetingly.

As you were present in San Francisco back on March 17th 2011, you are of course aware that during the Public Forum in San Francisco I made use of the community’s opportunity to ask questions on the main topics at each meeting directly to the Board and in front of the rest of the community, asking the Board about ICANN’s commitment (or not) to fundamental human rights. The full transcript is in the usual place that is available to you, and is reproduced at

http://news.dot-nxt.com/2011/03/17/transcript-public-forum

As you are also aware, I still remain without the benefit of the several-times promised-by-you answer.

Certain current and former Board members have privately expressed their irritation with the form of my question. Notwithstanding this, and regardless of the form of my question (leading or otherwise), this particular question has to be one of the most remarkable as a result ICANN’s shamefully long silence in officially responding to it.

I also understand certain comments were recently made by one or more members of the Board about my question (in my absence) before the entire assembly of the Singapore ccNSO meeting — which is open to both non-members (as we then were) and to members — despite that I was unavoidably unable to be there.

Although this seems to me to be no more than mildly discourteous, I am looking forward to reading the transcript of that meeting to see if it can throw any light on your continued refusal to answer the question.

However I have been given to understand that scuttlebutt has it that the Board might now have decided that it requires further particulars before it would be prepared to answer my question.

I am puzzled mightily by this, if it is true.

If that were the case, surely you should have contacted me in writing some four months ago (my email address is well known to you) or in person.

Back in March I wished to have the answer to this legitimate query in order to be able to respond fully and coherently to the Department of Commerce‘s Notice of Inquiry regarding the IANA function.

I asked the question in March 2011, and I expected a timely answer.

I still expect an answer even though July is almost with us. I shall keep asking for an answer until the organisation which you lead has the courtesy to respond to it.

The ICANN Chairman, Mr Dengate-Thrush, rather optimistically suggested I might get one by the end of the day (i.e by 18th March 2011) in which I asked the question.

Whilst I did not share his well-intentioned optimism, I did expect ICANN to provide an answer to enable me to respond to the Department’s Notice of Inquiry before their 31st March 2011 deadline.

The more so, as I took the trouble to provide my enquiry both to ICANN’s Chairman, and to ICANN’s General Counsel not only in writing but also that same day.

Yet I was to be unsurprisingly disappointed when ICANN studiedly failed to answer the question, despite repeated reminders both to yourself, and to the Chairman, and I was therefore forced to complete my submission to the United States’ Department of Commerce without the benefit of the information asked for.

In that light, and in the subsequent failure to respond at all, it seems to me that ICANN intentionally failed to answer and that failure was motivated by a desire to avoid adverse comment in my submission to the Department.

If, in fact, this was so, (and I hope it was not), this transparent ploy unfortunately had the opposite effect you intended, as I was forced, in my submission to the Department to highlight ICANN’s failure to commit to basic human rights compliance.

A Further Notice of Inquiry has now been issued by the US Government with a deadline of July 29th 2011.

I trust your organisation will not employ the same tactic to inhibit input and comment in response to that?

As you are the figurehead of an international global organisation dealing with rights and obligations world-wide ICANN is in a unique position and you have a unique responsbility.

in policy-making ICANN acts as a Legislature for the Domain Name System.
in carrying out of the IANA function, ICANN appears to act, in some part, as the DNS Executive Branch, and
in making judgments on applications for new Top Level Domains, or changes to existing Top Level Domains, ICANN acts as a Judicial Branch.

In doing all of those things, it seems to me that the values of commonly accepted principles of fundamental rights of civilised nations must always be respected.

Why can you not bring yourself to agree with me on this? It seems self-evident to me.

And it also seems to me these fundamental principles should not apply only to public authorities (such as the GAC) but also to organisations such as ICANN itself, among other things by reason of the Guiding Principles for corporations that was presented to the United Nations’ Human Rights Council by Prof John G Ruggie of Harvard Law School.

See http://ec.europa.eu/enterprise/policies/sustainable-business/files/business-human-rights/guiding_principles_business_and_hhrr_en.pdf

and, in particular, the Foundational Principles, pp. 13 et seq.

This was also strongly underlined by Commissioner Kroes’ recent public statement on what matters on the Internet (see http://blogs.ec.europa.eu/neelie-kroes/i-propose-a-compact-for-the-internet ) , in particular that :-

“there’s been a lot of discussion recently about principles which do, or should, underpin the network. The G8 recently agreed a few – principles like openness, freedom, non-discrimination and respect for human rights. Other bodies, including the OECD itself, are also developing their own.”

Particularly in this time during the Arab Spring of 2011, where the Internet has become a powerful force for good, for the promotion of democracy and human rights (in Iran, Libya, Syria and elsewhere around the world) I believe it would have been far preferable better that ICANN should grasp the opportunity to proclaim a commitment to fundamental human rights, to set an example to others, and not to be cowering in the shadows as if I’d asked you whether you’d been scrumping apples.

I therefore respectfully request a written or emailed reply to my enquiry of 17th March 2011 by return email.

If you insist on maintaining your current apparent position of procrastination and obfuscation, please provide me with a thorough and reasoned explanation of your decision not to answer the question, the rationale thereof and the sources of data and information on which ICANN relied in making this decision, again by return, so I can assist the Board in its deliberations.

With all good wishes

Nigel

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