[Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs
Nigel Roberts
nigel at channelisles.net
Wed Aug 23 11:01:09 UTC 2017
This is in danger of veering away from the Charter of this WG, I think.
But unless the Chairs object, I will give a short answer.
Nothing in anything ICANN does can constrain the ability of the
sovereign to legislate. This is recognised. It is trite law.
It's also trite law that the Government of a country or territory is the
ultimate authority on public policy.
It's a SIP whose views at delegation time are taken seriously into
account. This doesn't automatically give it the right to issue orders to
ICANN that must be followed.
Nor does it automatically give a government ownership of a ccTLD, just
like countries don't automatically own telecoms companies or the
railways. (Many did, and some still do).
But countries can exercise their lawful powers in many ways. And RFC
1591 requires an admin contact in the country (not necessarily
territory, in the case of territorial ccTLDs, which I know Niue is not).
The admin contact is thereoore automatically subject to the lawful
exercise of State (i.e. sovereign) powers.
The true nature of a ccTLD delegation remains unclear - it is
quasi-contractual, not statutory or treaty-based. The mere existence of
a two letter TLD does not make the property of the sovereign unless that
country was one (like North Korea) where a state actor received the
delegation from IANA.
I would encourage this discussion to take place in its appropriate
place, which is the ccNSO if it relates to global policy that is
necessary to be global.
On 23/08/17 10:42, Pär Brumark wrote:
> Nigel,
>
> if the issue was, as you claim, matters were settled and solved since
> long, we would not have this discussion and examples like Niue´s ccTLD
> .nu would not remain unsolved.
>
> Or?
>
> I would rather say that the matter was buried. Perhaps momentary wisely,
> in order to avoid some conflicts at the time.
>
> But burying this fundamental issue has lead to inconsistency, long drawn
> interpretations of the RFC1591 like the FOI that has to be interpitaded
> in itself by the FOIWG e t c e t c.
>
> It is not about destroying the multi stakeholder model as you claim to
> fear (with almost apocalyptic scaremongering). I would rather say the
> opposite - clarifying changes could rather improve the multi-stakeholder
> model framework and ICANN´s legitimacy.
>
> The world has changed and ICANN has matured and enlarged since the early
> days when the RFC1591 was the fundament for everything. What you seem
> to imply is that the only and perfect solution has somehow been found.
>
> Niue can hardly agree with you.
>
> Now, I do not want to harm my message in this answer by using to many
> references and quotes about how settled the jurisdiction issues NOT are,
> but the latest attempt to start sorting things out was the very time
> consuming ccNSO work with The FOI/FOIWG finished in 2015.
>
> The following statement is the GAC´s standpoint regarding the full
> FOI/FOIWG is from ICANN52, Singapore, 2015.
>
> From the GAC Communiqe, Singapore, 2015:
>
> ---
>
> "4.*Framework of Interpretation Working Group (FOIWG) Report *
>
> The GAC notes the work of the ccNSO FOIWG, and its efforts to provide
> interpretive clarity to RFC1591. The GAC welcomes the FOIWG’s
> recognition that, consistent with the GAC’s 2005 Principles, the
> ultimate authority on public policy issues relating to ccTLDs is the
> relevant government. As such, nothing in the FOIWG report should be read
> to limit or constrain applicable law and governmental decisions, or the
> IANA operator´s ability to act in line with a request made by the
> relevant government.".
>
> ---
>
> Best Regards,
>
> Pär
>
>
> On 2017-08-22 14:39, Nigel Roberts wrote:
>> Kavouss, Thiago, all
>>
>> As is clear from the ratio in the Weinstein case, it has not been
>> ruled that the US courts will exercise /in rem/ jurisdiction over
>> ccTLDs. (the question is open -- in rem certainly applies to second
>> level gtld domains, and ccTLD domains registered with a US registrar).
>>
>>
>> What IS clear, from history, is that ICANN has, in the past, acted in
>> a way that in my country would be defined as 'blackmail'.
>>
>> Viz: refusing to make IANA changes unless and until a particular
>> country agreed to sign a contract on ICANN's terms over its ccTLD.
>>
>> Others related to that specific ccTLD can confirm their recollection
>> and may do so.
>>
>> Whilst you appear to be agreeing with me on the point of subsidiarity,
>> it is clear to me that providing ICANN-PTI with blankey immunity from
>> all actions it could take, would allow it to return to that behaviour,
>> with impunity.
>>
>> So in fact, ccTLDs would LOSE the subsidiarity they currently enjoy.
>>
>> I fully understand the concerns regarding OFAC etc. But that's a
>> reason for ICANN to work with the General Licencing regime to mollify
>> those concerned. It's not a reason to give IANA the freedom to do
>> whatever it likes without the Rule of Law applying.
>>
>> There is no intrinsic problem that needs solving with the ccTLD system.
>>
>> That system has has been carefully and cooperatively reviewed by ICANN
>> staff, cctLD managers and GAC members over a 7 years period resulting
>> the policy framework we have know.
>>
>>
>> One concern IS certainly the potential effects of OFAC.
>>
>> This does need to be explored further and the consideration of the
>> meaning "prohibited transaction" (I don't think ICANN carries out any)
>> and if it does, the obtaining of a general licence.
>>
>> But this is no reason to tear up the policy work we've done in the
>> ccTLD community over, literally decades, to arrive at the workable
>> system we have today, over the disaster that was ICANN in 2001-2.
>>
>> And isn't this WG about jurisdiction, anyway?
>>
>>
>>
>> On 22/08/17 11:50, CISAS wrote:
>> > Dear Mr Roberts,
>> >
>> >
>> >
>> > Thank you for your email.
>> >
>> >
>> >
>> > Please be advised that email addresses that are not commonly sent to
>> > CISAS can be interpreted as spam by our server and as such will not be
>> > allowed through to the inbox. You original email was un-junked and as
>> > such we should experience no further problems receiving your emails.
>> >
>> >
>> >
>> > I am sorry that any information you received from Bintu was incorrect
>> > and that you felt my answers were evasive. I have sent you the CEDR
>> > Complaints Procedure previously which you will need to use in order to
>> > make a complaint about the CISAS service.
>> >
>> >
>> >
>> > I can confirm that Numbergroup Network Communications (Ireland) Limited
>> > is a member of CISAS. This company also goes by the name of Numbergroup
>> > Network Limited. We can therefore take on complaints about a company
>> > with either of the aforementioned names.
>> >
>> >
>> >
>> > There is no record of a companies named ‘Numbergrp Network
>> > Communications Ltd’ or ‘Numbergrp Ltd’ being a member of CISAS. I
>> > suggest that you contact Ofcom in order to obtain further information
>> > regarding these companies.
>> >
>> >
>> >
>> > Kind regards,
>> >
>> >
>> >
>> > Holly Quinn
>> > CISAS Team Leader
>> >
>> >
>> >
>> >
>>
>>
>>
>> As you must know (from the Weinstein case)
>>
>>
>> On 22/08/17 12:21, Kavouss Arasteh wrote:
>>> Dear All
>>> I have noted some immediate rush and reaction to the proposal made by
>>> Thiago
>>> He raised an important issue which I have also taken with reference to a
>>> Resolution adopted by Plenipotentiary Conference of ITU Busan to which
>>> the United States of America which hosting ICANN venue and ICANN
>>> applicable law regarding non interference of any State in the ccTLD of
>>> other States.
>>> This has nothing to do with the development of PDP in process as it may
>>> takes years to finalize during which the ccTLD of other states would be
>>> detrimentally impacted.
>>> We have established WS2 and its sub grouop dealing with jurisdiction
>>> which is quite eligible to address the issue .We need to understand each
>>> other ^s problems and not make back and fort the issues which is of
>>> fundamental and crucial importance.
>>> Please also see my issue 2
>>> Regards
>>> Kavouss
>>>
>>>
>>> having read our immediate reaction but
>>>
>>>
>>> On Tue, Aug 22, 2017 at 12:23 PM, Nigel Roberts <nigel at channelisles.net
>>> <mailto:nigel at channelisles.net>> wrote:s
>>>
>>> I fully support Jordan's intervention here.
>>>
>>> Neither this group nor the ICANN Board can legislate for ccTLDs -
>>> the strong respecting of the principle of subsidiarity by ICANN is
>>> fundamental to the relationship tween the ccTLD community and ICANN,
>>> enabling the 2003 Montreal Agreement which rescued the
>>> multistakeholder model, reversing the previous year's formal
>>> rejection and abandonment of the ICANN system by ccTLDs.
>>>
>>>
>>>
>>> On 22/08/17 10:58, Jordan Carter wrote:
>>>
>>> Dear Thiago, dear all,
>>>
>>> Dispute resolution regarding ccTLD matters is currently the
>>> subject of a
>>> PDP in the ccNSO.
>>>
>>> This isn't the perfect link but does give some info:
>>>
>>>
>>> https://www.icann.org/public-comments/ccnso-pdp-retirement-review-2017-05-24-en
>>>
>>> <https://www.icann.org/public-comments/ccnso-pdp-retirement-review-2017-05-24-en>
>>>
>>> While the existence of the PDP does not prevent this sub-group
>>> of the
>>> CCWG discussing this matter, my understanding of ICANN's bylaws
>>> is that
>>> the Board would not be able to accept any WS2 recommendation
>>> on this
>>> subject. That is a hard won protection of our ccTLD
>>> independence that
>>> has been a feature of the ICANN system since the ccNSO was
>>> formed.
>>>
>>> As such, the Jurisdiction group may prefer to focus its
>>> effort and
>>> energy on matters where implementable recommendations can be
>>> made by the
>>> CCWG.
>>>
>>> Hope this helps,
>>>
>>> Jordan
>>>
>>>
>>> On Tue, 22 Aug 2017 at 1:32 PM, Thiago Braz Jardim Oliveira
>>> <thiago.jardim at itamaraty.gov.br
>>> <mailto:thiago.jardim at itamaraty.gov.br>
>>> <mailto:thiago.jardim at itamaraty.gov.br
>>> <mailto:thiago.jardim at itamaraty.gov.br>>>
>>>
>>> wrote:
>>>
>>> Dear All,
>>>
>>> For your consideration:
>>>
>>> Issue 3: In rem Jurisdiction over ccTLDs
>>>
>>> Description: US courts have in rem jurisdiction over domain
>>> names as
>>> a result of ICANN's place of incorporation, and US courts
>>> and US
>>> enforcement agencies could possibly exercise its exclusive
>>> enforcement jurisdiction over ICANN to compel it to
>>> re-delegate
>>> ccTLDs. This is contrary, in particular, to paragraph 63
>>> of the
>>> Tunis Agenda: "Countries should not be involved in decisions
>>> regarding another country's country-code Top-Level Domain
>>> (ccTLD).
>>> Their legitimate interests, as expressed and defined by each
>>> country, in diverse ways, regarding decisions affecting
>>> their
>>> ccTLDs, need to be respected, upheld and addressed via a
>>> flexible
>>> and improved framework and mechanisms." It is to be noted
>>> that while
>>> paragraph 63 may not state that States have sovereignty over
>>> ccTLDs,
>>> it does establish that States should not interfere with
>>> ccTLDs.
>>> Further, an obligation on States not to interfere with
>>> certain
>>> matters, as ccTLDs, need not be based on the principle of
>>> sovereignty to exist, nor does it suppose that the matter
>>> is one
>>> subject to the sovereignty of States. For States can simply
>>> agree to
>>> limit their ability to interfere with ccTLDs delegated to
>>> other
>>> countries, and this is the principle embodied in Paragraph
>>> 63 of the
>>> Tunis Agenda.
>>>
>>> Proposed solution: ICANN should seek jurisdictional
>>> immunities in
>>> respect of ICANN's activities relating to the management of
>>> ccTLDs.
>>> In addition, it should be included in ICANN Bylaws an
>>> exclusive
>>> choice of forum provision, whereby disputes relating to the
>>> management of any given ccTLD by ICANN shall be settled
>>> exclusively
>>> in the courts of the country to which the ccTLD in question
>>> refer. A
>>> similar exclusive choice of forum clause shall be included
>>> in those
>>> contracts ICANN may have with ccTLD managers, where such a
>>> contract
>>> exists.
>>>
>>> Best regards,
>>>
>>> Thiago
>>> _______________________________________________
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>>> <mailto:Ws2-jurisdiction at icann.org>
>>> <mailto:Ws2-jurisdiction at icann.org
>>> <mailto:Ws2-jurisdiction at icann.org>>
>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
>>>
>>> --
>>> Jordan Carter | Chief Executive, InternetNZ
>>>
>>> +64-21-442-649 <tel:%2B64-21-442-649> | jordan at internetnz.net.nz
>>> <mailto:jordan at internetnz.net.nz>
>>> <mailto:jordan at internetnz.net.nz
>>> <mailto:jordan at internetnz.net.nz>>
>>>
>>> Sent on the run, apologies for brevity
>>>
>>>
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