[At-Large] 9th Circuit Court ruling on ICANN Contract.

Evan Leibovitch evan at telly.org
Wed Dec 22 18:57:11 UTC 2010

On 22 December 2010 13:11, Avri Doria <avri at acm.org> wrote:

> So all the avenues for knowing who you are dealing wit exist as long as the
> proper processes of the law are used.

Whose law?

We already appear to have situations in which the bad guys go
jurisdiction-shopping -- either by design or fortune -- to find regimes that
offer the most obstacles to discovery and/or have the narrowest definition
of fraud. It's the fraudsters' equivalent of incorporating in Delaware or
banking in the Caymans.

When the victim has to pursue the perp across national boundaries, only to
find that in the bad guy's "home" victim claims have little value, "proper
processes" are a cruel joke. (And heaven knows this isn't just related to
Internet matters...)

A big part of the problem I had with the IRT approach to trademark
protection is that it sought to confer upon ICANN nearly treaty-making
authority it did not (and should not) have. While ICANN can go a long way
towards cleaning up the loopholes and enforcing its own agreements, it can't
on its own redefine Internet fraud on a global basis.

We now have precedent, for better or worse, for blocking domains at a
national level. An American court order against scammer.su (or even
scammer.com) might not be enforceable against a foreign registrar and
foreign proxy, but those domains can be blocked by government order. You may
not be able to catch the elusive bad guys but you can at least close down
the local office. And now that the action has been taken once with minimal
public outcry, I expect other actions -- and possibly other countries
following suit.

What role does ICANN have in this? Except for issues of WHOIS accuracy and
enforcing its own contracts, this may be beyond scope. But ICANN has an
interest, as a matter of Internet stability, in minimizing country-level
blockage of domains. To that end it may have a valuable role as facilitator
and advisor, where it is unable to act as regulator. Perhaps this is an
opportunity for ICANN to turn the table and provide advice to governments --
or at least offer a forum where these issues can be discussed without being
based on technical ignorance.

Meanwhile, internally ICANN needs to clean up its WHOIS act. As Bill said,
it is not vigilante justice just to know who owns a domain.

- Evan

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