[At-Large] R: R: Is ICANN's oversight really moving away from the US government?

[parminder]

Olivier

You are running in circles around the main case that I am presenting but
*not* addressing it in the exact form I present it, which, I repeat, is
as follows...

*Rojoadirecta takes a closed gTLD only for its own business, and so
there is no other agency that loses anything in closing down of
.rojadirecta, only rojadirecta loses which is supposed to be the
intention of the court order.*

I am putting the above under emphasis so that you get it and get nothing
else, and try to respond only to this situation - which is an important
representative one. 

The situation being, we move a few years back, enforcement agencies have
the same problem with rojadirecta that they had a few years back, but
this time verisign as controller of .com is unable to be of any help,
bec .rojadirecta is a gtld and its own registry... Only ICANN can remove
.rojadirecta, and it can do so without doing any damage at all to
anything or anyone else, other than rojadirecta, which is the very
intention of the enforcement action (of a court or another US agency)

I can clearly see that the order, court or otherwise, but especially of
a court, will in such a situation go now to ICANN - bec for a US
court/agency ICANN is not in any way different from verisign - and that
ICANN MUST comply with the order, on the pain of further coercive action.

Do you or anyone else have a case that no, this wont happen.... If so,
please be explicit, and justify your reasoning. That will be the right
response to what I am arguing.

But I see from your email below that you are inclined to say that if
rojadirecta is indeed afraid of being on the wrong side of US law, now
or any time in future, in doing a business that has nothing directly to
do with the US, it should simply not take a gTLD.... I just want to hear
it again, is this what you are saying....

If so, it is both surprising and very disappointing that a leader of
ALAC, the supposed civil society space working with ICANN, is saying
such a thing.... That a central domain name service can/ should be
denied to non US entities, unless they are ready to act as per US law
and fully so, even if they are acting entirely outside of the US..... Is
this justice and fairness? How are people here in ALAC opening
advocating it?

 How can we allow DNS to become a tool of making all of the world
subject to US laws, in all areas of social activity, bec a gTLD can be
in any area of social activity, governance, health, education, anything
and everything..... Anyone aspiring to a gLTD in any of these social
areas must make sure that it, now and for ever, observe US law, even if
it plans never to have anything to do with the US.....  Are we here at
ALAC really advocating, or by default, working towards such a world?

parminder




On Sunday 10 April 2016 01:18 AM, Olivier MJ Crepin-Leblond wrote:
> Dear Parminder,
>
> let me try and help here too:
>
> On 09/04/2016 07:01, parminder wrote:
>> US courts are not a subject of ICANN, it is the other way around....
>> So courts are not going to observe the intricate niceties of ICANN's
>> internal lingo..... gTLDs are directly controlled by ICANN, it can
>> include and remove one from the operative list of gTLDs.... There is
>> no other way to remove a gTLD... That alone counts, and the court will
>> direct ICANN accordingly.... Just forget the ICANN jargon. Please
>> respond to substantive points and issues.
> So what you are saying is that ICANN has sole ability to add or remove
> TLDs from the Root, so US courts could ask ICANN to remove TLDs from the
> Root. But Parminder, we are always talking about 2nd level - ie. the
> names *under* the top level domain. What you are effectively saying is
> that a request could be made by a US court to remove a top level domain
> from the Root --- WHY? This is throwing the baby out with the bathwater.
> This is like asking for the Indian Top Level Domain .IN to be removed
> from the root because a sub-domain under .IN is used for criminal
> activity. What I mentioned in my previous message is that there is
> jurisprudence already in the US for this, so this kind of request has
> very little chance of ever succeeding.
>
>> You havent responded to my substantive points, and are taking the
>> cover of a jargon about which I care as little as a US court will..
>> The substantive point it; is to proceed from an existing case,
>> rojadirecta had taken a gTLD, it were .rojadirecta (or for wikipedia's
>> case .wikipedia), and the same case had come to the same US court,
>> where would its order to take down the web presence of the respective
>> businesses be directed?  Would you care to respond to this point? Thanks. 
> So here again, you are speaking about Top Level Domains. If I understand
> you correctly, you take the example of Rojadirecta having applied
> successfully for top level domain Rojadirecta - and what you are saying
> is that there could be a request through a US court for this top level
> domain to be removed from the Root. Using your words, that would "take
> down the web presence of the respective businesses" -- all of the domain
> names under .rojadirecta would be affected. Well, you're right. Perhaps
> that's why Rojadirecta prefers operating under a variety of top level
> domains that are not run by a US Registry rather than running its own
> Top Level Domain.
>
> Kindest regards,
>
> Olivier
>

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