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

Michele Neylon - Blacknight michele at blacknight.com
Tue Apr 26 13:53:24 UTC 2016


Mr Michele Neylon
Blacknight Solutions
Hosting, Colocation & Domains
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On 26/04/2016, 14:19, "León Felipe Sánchez Ambía" <leonfelipe at sanchez.mx> wrote:

>Dear Pranesh,
>So, yes, every country has the ability to exert power over registries and registrars, but some have more powers than others.
>I disagree with you on this. The fact that the US is the country with the most registry/registrar doesn't give it more power not only allows it to coerce more actors but with the same (theoretical) power as any country with a single registry/registrar. As a matter of fact, having a broad number of registry/registrar might decrease one country's power to act against them as a coalition of registry/registrar would be able to deal with issues better than a single registry/registrar against a government all alone. 
>Kind regards,
>> El abr 26, 2016, a las 7:54 AM, Pranesh Prakash <pranesh at cis-india.org> escribió:
>> Olivier MJ Crepin-Leblond <ocl at gih.com> [2016-04-08 01:24:44 +0200]:
>>>> On 08/04/2016 00:57, Michele Neylon - Blacknight wrote:
>>>> The issue around domain seizures has nothing to do with ICANN. Any
>>>> domain seizure cases I’ve seen (including the examples cited by
>>>> Parminder) were all made either at the registrar or registry level.
>>>> I haven’t see any cases where ICANN has been involved directly (though
>>>> they often get named in cases)
>>> You're absolutely correct. And the only "seizures" that were requested,
>>> were those of Top Level Domains: http://www.bbc.com/news/technology-28582478
>>> There are many other sources that describe the case in detail. The judge
>>> sided with ICANN in saying that "they are not property subject to
>>> attachment under District of Columbia Law".
>> And dear Olivier, you are absolutely incorrect.
>> U.S. authorities have seized thousands of websites (once accidentally seizing 84,000!):
>> https://torrentfreak.com/feds-seize-130-domain-names-in-mass-crackdown-111125/
>> https://torrentfreak.com/u-s-government-seizes-bittorrent-search-engine-domain-and-more-101126/
>> http://www.theregister.co.uk/2011/02/18/fed_domain_seizure_slammed/
>> https://www.europol.europa.eu/content/690-internet-domain-names-seized-because-fraudulent-practices
>> http://www.wired.com/2012/03/feds-seize-foreign-sites/
>> The majority of the world's registries and registrars are headquartered in the US:
>> * 3 in 5 registrars are from the United States of America (624 out of 1010, as of March 2014, according to ICANN's accredited registrars list), with only 0.6% being from the 54 countries in Africa (7 out of 1010).
>> * 45% of all the registries are from the United States of America! (307 out of 672 registries listed in ICANN’s registry directory in August 2015.)
>> http://cis-india.org/internet-governance/blog/global-multistakeholder-community-neither-global-nor-multistakeholder
>> So, yes, every country has the ability to exert power over registries and registrars, but some have more powers than others.
>>> In this case, it is actually a good thing that the case had to go in
>>> front of a US court since jurisprudence already existed.
>> That is incorrect, since many would see the jurisprudence on a domain name as inapplicable to a TLD.
>> And even if you don't, the reality is that the US is not one singular legal entity.  There is a wide divergence of opinions within US courts as to whether domain names are property or not, and very little as to whether TLDs are properties are not. A helpful footnote in one of A. Michael Froomkin's articles provides this bibliography:
>> Anupam Chander, The New, New Property, 81 TEX. L. REV. 715, 776-781 (2003) (“Understanding domain names as property accords with how they are treated in practice.”); Juliet M. Moringiello, What Virtual Worlds Can Do for Property Law, 62 FLA. L. REV. 159, 179 (2010) (discussing the Virginia Supreme Court’s conclusion in Network Solutions, Inc. v. Umbro Int’l, Inc., 529 S.E.2d 80, 86 (Va. 2000) that a domain name represents a service contract, not property subject to garnishment); Xuan-Thao N. Nguyen, Commercial Law Collides with Cyberspace: The Trouble with Perfection – Insecurity Interests in the New Corporate Asset, 59 WASH. & LEE L. REV. 37, 65 (2002) (“The classification of domain names as either property or contracts is an issue of first impression with which courts have struggled.”); XuanThao N. Nguyen, Cyberproperty and Judicial Dissonance: The Trouble with Domain Name Classification, 10 GEO. MASON L. REV. 183, 186 (2001) (recognizing domain names as intangible property).
>> -- 
>> Pranesh Prakash
>> Policy Director, Centre for Internet and Society
>> http://cis-india.org | tel:+91 80 40926283
>> sip:pranesh at ostel.co | xmpp:pranesh at cis-india.org
>> https://twitter.com/pranesh
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