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Poachers and Gamekeepers

By on Monday, 12 March 2012 in Domain Names, General, ICANN

Rod Beckstrom, ICANN’s CEO is today highlighting certain apparent structural issues with the ICANN Board and conflicts of interest.

And you know what, a lot of what he is saying is making sense!

But why has it taken him till the lame-duck phase of his reign for him to speak up?

Back in the early days, ICANN CEO Stuart Lynn similarly criticised the structure of the original ICANN, which led to the abolition of elections and the creation of the Nominating Committee under the banner “ICANN 2.0”.

But he did this early on, and actually achieved the changes to ICANN that produced the current structure. Whether you liked them or not (and the abolition of elections was something that was, perhaps, to be regretted), Lynn had the time to follow through, and implement.

Sadly, Rod’s contribution just sounds like the plaintive cry of an albatross flying off into the distance.

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“No proposals met the requirements” – ICANN’s IANA function contract in doubt?

By on Saturday, 10 March 2012 in General

As reported at domainincite.com and .NXT the US Government has scrapped the current IANA contract procurement process, reportedly saying in the process that ICANN’s submission didn’t meet the requirements of the global community.

The effect of this, although ICANN have another six-month stay of execution, has to be to cast medium-to-long-term doubt over ICANN’s role as IANA manager.

It would also might be perceivable by some (whether intended that way or not) as somewhat of a sour note for departing CEO Rod Beckstrom to end his time at ICANN on

Whether any of the criticisms that have been leveled at Mr Beckstrom during his tenure have substance or not, it would appear that one success he should have expected to bank upon would have been ICANN to be awarded  the IANA contract, a job it’s effectively been doing since it was formed.

The apparent message  that ICANN is ‘not fit-for-purpose’ in respect of the IANA contract does not augur well.

It’s also a shame that ICANN’s failure to get a grasp on the global community’s IANA needs may result in demotivating the very staff that I know from personal experience provide dedication above and beyond the call-of-duty.

Whoever Rod’s replacement as CEO may be, she (or he) will have to put “getting a grip” as being the very highest priority on taking post.

After all, gTLDS use IANA equally as ccTLDs. And can ICANN REALLY have the moral or other authority to sign contracts with newTLDs if its future as the  IANA is in this much doubt?

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Rush Limbaugh’s “Ratner Moment”

By on Tuesday, 6 March 2012 in General, Music and Culture

Rush Limbaugh is a widely-listened, right-wing radio personality in the USA.

Wikipedia describes him as “an opinion leader in American conservatism”.

Recently, he took to attacking university student Sandra Fluke for her testimony before Congress on contraception and healthcare. Apparently he characterised her as a ‘slut’ and a ‘prostitute’. Of course, she’s no such thing.

Let’s leave to one aside the difference in the balance of free speech rights between the USA’s First Amendment and Europe’s Article 10. (Although, it seems to me that had a radio DJ in the UK done something similar, I would venture to suggest he might be receiving stiff letters from Messrs Sue Grabbit and Runne without any possibility of responding like Pressdram Limited, and by now Mr Limbaiugh might possibly be  having some mild difficulty in having to explain to a judge exactly why he shouldn’t pay a large libel award to Ms Fluke).

No, what is interesting about this case, is that this seems to be the ‘Gerald Ratner’ moment for Limbaugh, and perhaps the whole ‘right-wing shock-jock culture’ in the USA.

For those who aren’t from the UK, or are too young, Ratners was the most successful High St. jewelers in the British Isles until in an intendedly humorous speech to the prestigious Institute of Directors, its CEO Gerald Ratner jokingly  described his own company’s products as ‘total crap’ which resulted in the complete collapse of the business.

In my opinion, this is probably Limbaugh’s ‘Ratner moment‘.

Apparently, despite an apology (itself a remarkable course of action for Limbaugh) advertisers are deserting the former darling of the Right in droves

Rush, I feel for you. (Not!!).

And some of us do know total crap when we see (or hear it). Apparently the American public is beginning to, as well.

 

 

 

 

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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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How does it feel to be a criminal?

By on Wednesday, 14 December 2011 in General

My home phone rings.

Not even my relatives call this, as they usually ring me on my mobile phone.

The caller ID shows the call as INTERNATIONAL (no number), and the call has a terrible VOIP quality.

‘Mr Roberts? Mr Neegel Roberts??’

‘Yes, who is this?’ I say.

‘This is Windows IT Support of London calling. Your PC is going to crash in the next half an hour’  comes the response.

At this point it is worth noting that I don’t HAVE a Windows machine.

‘Oh really?

‘Yes. You are going to be losing all your folders and files’.
At this point I say to him:

‘How does it feel to be a criminal?’

 

‘Your Windows computer is in danger, Mister Neegel!’  (He hasn’t understood what I’ve said’).

‘I mean, I know you guys need any job you can find, down there in Bangalore, or Mumbai or wherever you are calling from … … …  but how does it feel to be a criminal, calling up people with scare stories and trying to get them to give you access to their computer??’

At this point he says to me:

 

‘How does it feel to be a bastard, Mr Neegel Roberts?, eh you tell me?’

‘I practice’ is my response.

 

‘F*ck off, f*ck off, F*CK OFF, you bastard!!!!!’ he tells me, eloquently, and disconnects the call.

I guess he wasn’t from Microsoft after all.

 

 

 

 

 

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

By on Tuesday, 29 November 2011 in General

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.

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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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European Commission backpedals? Restating the obvious.

By on Thursday, 29 September 2011 in General

“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?

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