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

Thu Apr 7 18:16:02 UTC 2016

Two observations.

1.        What is to stop a non-US court from taking a similar enforcement action against a registrar within that country and seizing domains?  Non-US courts have been known to take jurisdiction over business outside their countries based upon the business’s goods and services being accessible within the country through the Internet.

2.       Cannot the non-US business that conducts itself legally within the laws of its country register its domains with a non-US registrar?

I do not deny there is an uneven playing field because ICANN is more easily subject to US jurisdiction and law than the jurisdictions and laws of other countries, but your arguments may go too far.

Seth

From: at-large-bounces at atlarge-lists.icann.org [mailto:at-large-bounces at atlarge-lists.icann.org] On Behalf Of parminder
Sent: Thursday, April 07, 2016 6:32 AM
To: McTim
Cc: At-Large Worldwide
Subject: Re: [At-Large] R: R: Is ICANN's oversight really moving away from the US government?

McTim / All

(Sorry for the delay in the response. I was travelling.)

So, you say that the problem is only in my head, and we can safely ignore all that I am proposing as a problem! Let me then produce some clear evidence of the problem, and see how you respond to it.

You of course know that US authorities have been using US based registries to frequently seize domains, for all kinds of reasons. Dont tell me you dont! The first famous case was when the domain of a travel site based in an European country was seized for offering holidays in Cuba to a customer in another European country, because US entities are banned from commercial transactions with Cuba. Note that the transaction had nothing at all to do with anything US. But US authorities used the US registration of the registry to seize the website nonetheless <http://arstechnica.com/business/2008/03/us-interferes-with-travel-to-cuba/> . 

Next famous case was of the Spanish sports streaming website Rojadirecta <https://www.techdirt.com/articles/20110201/10252412910/homeland-security-seizes-spanish-domain-name-that-had-already-been-declared-legal.shtml>  whose legality had been tested in Spanish courts and it had been declared legal... But that mattered two hoots to US government agencies which used its US registration to seize it....

Later has been this case of a Canadian gambling site <http://blog.easydns.org/2012/02/29/verisign-seizes-com-domain-registered-via-foreign-registrar-on-behalf-of-us-authorities/>  being seized similarly by US agencies. Earlier, wikileaks website had got seized <http://www.cnet.com/news/swiss-bank-in-wikileaks-case-abruptly-abandons-lawsuit/> . 

There have been many more cases of such domain name seizures by US authorities <http://www.thedomains.com/2010/07/01/feds-seize-9-domains-for-copyright-infringement-but-based-on-what-law/> , quite often when the focus of the concerned companies was non US.  Interesting, there have been court orders which transferred control over domain names of businesses to other, US, companies <http://arstechnica.com/security/2014/06/millions-of-dymanic-dns-users-suffer-after-microsoft-seizes-no-ip-domains/> . 

All such legal enforcement by US agencies ( courts as well as executive agencies)  has been got done through exercise of jurisdiction over US based registries, mostly Verisign controlling .com.

Lets now move on to the times of thousands of gTLDs, made possible by the new gTLDs rounds,  and every big business encouraged to, at least legitimately entitled to, have its own gTLD.

What if the above non US companies, or similar ones like them, now take on gTLDs of their own, which they have a right to. What is the option now for US agencies if they mean to pursue similar enforcement acts as they did earlier. And there simply is no reason why they wont.  Now, get this one thing clearly - for an US agency, there is absolutely no difference at all between a Verisign controlling .com registrations or an ICANN controlling gTLDs. *They are the same for them, US registered private entities, subject fully to US jurisdiction.*

When they want, US agencies (courts and executive agencies) will similarly order ICANN, like they did earlier to Verisign, to take down the 'offending' gTLDs.... The logic is clear and simple, and irrefutable. Can anyone argue why and how they would not.... And that precisely is the problem that I have been positing, taking the very likely example of an Indian generic drug company, with a gTLD, falling foul of the US pharma industry's high Intellectual property aspirations and standards (which are not global). 

So, in the circumstances, the option for non US businesses is one of the two

1. They keep strictly on the right side of US law, even when their business does not have anything to do with the US. This amounts to a global enforcement of one country's law and jurisdiction, covering all kinds of areas. This is highly undemocratic, and not should not be acceptable to non US entities.  

2. Non US companies play safe and do not take up new gTLDs. This amounts to a virtual denial of a key DNS service to non US companies. Which should be almost equally unacceptable. 

What is your response to this situation... If this is not a real problem for an organisation whose main task is to provide DNS services to the world, I dont see what would be a problem for it. And if this is not an issue for ALAC to address, whose main purpose should be to the serve the interests of more the peripheral groups on DNS related issues, I dont know what would be?

Since I have put forth clear evidence and propositions logically ensuing from such evidence, I will very much appreciate clear and direct responses, to the issues I raise and the 'problem' I frame.

parminder 

On Tuesday 29 March 2016 08:53 PM, McTim wrote:

On Tue, Mar 29, 2016 at 9:26 AM, parminder <parminder at itforchange.net> wrote:

What amazes me in all the responses I am getting is that no one is either saying that the problem I have posed does not exist or it is not important to resolve, nor providing any alternative ways to resolve it.

They are just arguing with parts of my proposal, which is fine, although I think, while no doubt this is a somewhat complex solution to a complex problem, no one has been able to show why it really cant work. 

To remind; the problem I had posed was about the very likely wrongful US's jurisdictional imposition on ICANN's process and vis a vis the root server maintainer. I had given a concrete example; of a US court pushing the well-known over-zealous US intellectual property law and enforcement to take away the gTLD of an Indian generic drug manufacturer even when the latter has no direct business interests or activities in the US... What is your response to such a very likely occurrence? 

It is highly unlikely, the likelihood approaching zero IMHO.

Should we simply ignore it?

yes, it is safe to do so.  However, you must realise that after the IANA transition is finished, there will be absolutely zero appetite inside ICANN to make major reforms.  I doubt you could get that Community to even consider such a proposal. 

Or, do you not think it likely, in which case lets discuss that

If we must.  Let's say that your scenario comes to pass.  You do realise that ICANN would use the hundreds of millions of dollars in its legal kitty to fight such a court order, right?  

.... You cannot simply not respond to this key global governance problem that stares us in the face... (Apart from it, is the less likely but still to be remained prepared for possibility of the The Office of Foreign Assets Control of the US playing hanky panky with the gTLD of a country

countries don't have gTLDs.

that the US gets into serious enmity with.... every country likes to remain prepared for such an eventuality. You cannot deny them that right. )...

No one seems to want to address these key global governance problems. Do they not exist? If they do, then what is your response to and preparedness for these?  

They are not key.  They exist as a problem largely in your head.  

-- 

Cheers,

McTim
"A name indicates what we seek. An address indicates where it is. A route indicates how we get there."  Jon Postel

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