[At-Large] Is ICANN's oversight really moving away from the US government?
León Felipe Sánchez Ambía
leonfelipe at sanchez.mx
Thu Apr 28 20:00:21 UTC 2016
I believe we’re mixing apples and oranges here. One issue I identify in this conversation is the one going on in regard to ICANN being subject to U.S. jurisdiction. Another, very different, issue is whether the US has seized a number of domains based on whatever basis (Patriot ACT, OFAC, SOPA, PIPA, baby Jesus) they consider as grounds for seizure. I definitely don’t support the seizures that have taken place. In fact that made me switch from having my domains with Godaddy to having them with Gandi. However, this last issue, I believe, seems irrelevant to the discussion on whether the US government would have more power than other countries for the fact that ICANN continues to be a US bases non for profit California Corporation.
As for not having a DNRRs alliance stand against SOPA-PIPA, we need to understand that not all battles are for everyone to fight. While I have taken part in many of those battles against what I believe to be unbalanced laws, I too understand that there are people who’s businesses depend on continuing to be neutral to this kind of political storms. That is politics, not legal issues.
There are far more tools the US government can use to extend their jurisdiction to foreign countries than the fact that ICANN is a US bases Corporation. Take a look at OFAC and how they seize assets all around the world with cooperation from other countries.
To summarize, I believe that having ICANN to continue as a US based Corporation doesn’t give the US government more power in regard to the DNS in comparison to that of any other country. I don’t want to name other countries but I’m sure you’re quite familiar to the situation in several countries when it comes to the DNS.
> El 26/04/2016, a las 10:31 a.m., Pranesh Prakash <pranesh at cis-india.org> escribió:
> Dear León,
> Unfortunately, that kind of collective opposition might sound good in theory but didn't happen in practice. No registry challenged the US government on their domain name seizures, nor or on allied efforts such as SOPA/PIPA. Verisign, the gorilla in the room, most definitely did not oppose either bill. A quick search on Google doesn't reveal PIR having opposed SOPA either:
> Further, given the current state of US fedearl law as interpreted by courts in Maryland, SOPA is not needed at all:
> Not only does the US have the largest number of registries and registrars, they also have the largest registries and registrars, meaning the largest number of domains in the world are — per US authorities — subject to seizures.
> León Felipe Sánchez Ambía <leonfelipe at sanchez.mx> [2016-04-26 08:19:07 -0500]:
>> 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!):
>>> 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.)
>>> 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
>>> 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
>>> At-Large mailing list
>>> At-Large at atlarge-lists.icann.org
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> 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
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