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

parminder parminder at itforchange.net
Sat Apr 9 03:59:12 UTC 2016



On Thursday 07 April 2016 11:46 PM, Seth M Reiss wrote:
>
> 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?
>

None.... Any company is in any case subject to the jurisdiction of its
incorporation.... So, what you are saying IMHO is completely besides the
point. The issue that I am framing is 'why should a company that
intended to do and have no business with the US be subject to US
enforcement action?'


> 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?
>

Right.... So you are inter alia saying/ accepting that if a business
really wants to avoid being subject to US jurisdiction, which it has a
right to, it should never apply for and get a gTLD for itself.....
Because gTLDs are directly registered with ICANN, a US based
corporation, subject fully to US jurisdiction...

It is such a pity that we can are ready to accept such a situation - for
a non US business, if it has to avoid extraterritorial application of US
jurisdiction, it should avoid taking a gTLD for itself... Or, to put it
other way, the facility of getting a gTLD gets closed to that business...

I dont think this is any way to run a global governance establishment,
and to run a group - ALAC - that is supposed to make such an
establishment more fair and democratic for all..

This is quite a self damning admission...

parminder
>
>  
>
> 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 registryto 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 <mailto: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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