[Ws2-jurisdiction] RES: RES: [Ws2-hr] .cat

Wed Sep 20 17:14:08 UTC 2017

Dear Paul,

While I think it may not have been your intention, your email constitutes a direct attack against my dignity. You said that I'm wrong and that I know I'm wrong, or in other words that I'm deliberately portraying as truth something I know to be false. I'd kindly ask you to abide by ICANN expected standards of behaviour and withdraw that assertion. Thank you.

As to the substance of your comment, my point is that Spanish authorities might have been able to effectively take down .cat domain names - with worldwide implications - provided that .cat registry's offices it raided operated the infrastructure for the .cat domain name. And provided these offices were within Spain, only Spanish authorities had the necessary authority to take forceful measures against these offices in ways that affect the worldwide services operated from within these offices. (This is at least the jurisdictional principle involved, and we need not debate on the facts of this particular registry case)

Now the same principle applies to ICANN as to any other entity located in the territory of any other country. The local authorities, and only the local authorities, will be able to enforce prescriptions affecting services that an entity provides worldwide but which are operated from within the local country.

Hence I reiterate my previous assertion: the United States, the country in whose territory ICANN is based (as well as where are located its DNS management activities), is in the unique position to enforce law prescriptions against ICANN, to enforce its sanctions regime against ICANN, to shutdown ICANN, to interfere with ICANN's DNS management activities.

Best regards,

Thiago

-----Mensagem original-----
De: Paul Rosenzweig [mailto:paul.rosenzweig at redbranchconsulting.com] 
Enviada em: quarta-feira, 20 de setembro de 2017 10:57
Para: Thiago Braz Jardim Oliveira; 'farzaneh badii'; 'Nigel Roberts'
Cc: 'ws2-jurisdiction'; ws2-hr at icann.org
Assunto: RE: [Ws2-jurisdiction] RES: [Ws2-hr] .cat

Actually, that’s wrong Thiago, but you know that.  The facts are that .cat has physical offices in Spain – hence its offices could be raided.  That is true irrespective of whether or not the .cat owners are corporate domiciled in Spain or in France or anywhere else in the world.  The same is true of ICANN’s offices in Turkey, which have not been raided by Turkish police and (we all fervently hope never will be).

While I join everyone in dismay at the action of the Spanish authorities they prove my point, as Nigel said.  

Paul

Paul Rosenzweig

paul.rosenzweig at redbranchconsulting.com <mailto:paul.rosenzweig at redbranchconsulting.com> 

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From: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Thiago Braz Jardim Oliveira
Sent: Wednesday, September 20, 2017 8:47 AM
To: 'farzaneh badii' <farzaneh.badii at gmail.com>; Nigel Roberts <nigel at channelisles.net>
Cc: ws2-jurisdiction <ws2-jurisdiction at icann.org>; ws2-hr at icann.org
Subject: [Ws2-jurisdiction] RES: [Ws2-hr] .cat

Dear all,

Farzaneh is right in disagreeing with Nigel.

The .CAT case only confirms that the territorial State, that is the State in which territory a legal entity is based (in this case the .CAT registry), is in the unique position to enforce its prescriptions against that legal entity.

Notice that the action of "raiding" the .CAT registry was undertaken by Spanish law enforcers, and only they could have undertaken it (at least until such time as Spain consents to foreign officials' exercising forceful actions within Spanish territory). In sum, the "police raid" by Spain happened because the .CAT registry, being located in Spain, was subject to the territorial jurisdiction of Spain, notably its exclusive enforcement jurisdiction.

In the case of ICANN, the lessons the .CAT case teaches us (as if anyone really needed this case to be convinced of the following) is that the United States, the country in whose territory ICANN is based (as well as where are located its DNS management activities), is in the unique position to enforce law prescriptions against ICANN, to enforce its sanctions regime against ICANN, to shutdown ICANN, to interfere with ICANN's DNS management activities. No other country is in a position to do so, and this should be remedied.

Best regards,

Thiago

De: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] Em nome de farzaneh badii Enviada em: quarta-feira, 20 de setembro de 2017 08:51
Para: Nigel Roberts
Cc: ws2-jurisdiction; ws2-hr at icann.org
Assunto: Re: [Ws2-jurisdiction] [Ws2-hr] .cat

Farzaneh 

On Wed, Sep 20, 2017 at 6:24 AM, Nigel Roberts <nigel at channelisles.net> wrote:

I think this all clearly proves Paul Rosenzweig's point that ICANN's jurisdiction is irrelevant as national police forces and judicial authorities can apply national law to particular registries.

Under the Treaty of Rome, incidentally, the .CAT registry has the complete right to move it's operations to any of the other 27 Member states (soon to be 26) of the Union.  If it did that, would ICANN itself then come in the firing line from the Spanish courts, perhaps?

I disagree. ICANN's jurisdiction is the most relevant when it comes to delegation-redelegation of ccTLDs and accreditation of regirars and approval of registries. This case does not prove the point that ICANN's jurisdiction is totally irrelenat under all circumstances. As we clearly demonstrated at the jurisdiction group. 

	On 20/09/17 09:58, Thomas Rickert wrote:

		Hi all,
		you might find this article interesting.

		https://www.internetnews.me/2017/09/20/dotcat-registry-offices-raided-spanish-police/

		Best,
		Thomas

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