[discuss] Some more legal tangles for ICANN

parminder parminder at itforchange.net
Tue Jul 1 05:11:16 UTC 2014

On Monday 30 June 2014 09:37 PM, David Conrad wrote:
> Not quite. In the .COM case, Verisign controls the zone file and has control over the authority servers.  In the root case, ICANN controls neither the zone file nor the authority servers (excepting "L" of course).

Then whichever US entity controls them, the orders will be directly to 
them... For a US court, they are all the same, and order modification 
when the necessary cause is established will take maybe a day. Such a 
thing requires no new process or hearing by the court, it is merely a 
technical detail which can immediately be modified/ corrected.
> However, for sake of argument, ignore reality and assume a court order is issued that demands ICANN transfer .IR (and all appeals are exhausted). ICANN would presumably then create and submit the root zone change request to NTIA for authorization.

Right. This is what it will 'have' to do.

> Such a change request is obviously outside of policy, thus NTIA should reject it.

Court order is policy, or higher than it....
>   A new court order (or lawsuit?) would likely be necessary, this one against the U. S. Dept. of Commerce, NTIA.  If we assume that succeeds,

I am not sure what you mean by 'succeeds'... Once a court decides that 
the seizure of assets of any party which are held in the US is the right 
thing to do, it is of little consequence which agency actually has the 
necessary power and role. As said, for the courts, NTIA like ICANN is 
just another US agency subject to US law and court orders... Another 
order will need no new process, and maybe just a day or two to issue.

> then presumably NTIA would direct Verisign to modify the root zone to update the glue records for .IR to point to the new servers.

>   The root server operators (and others) would then be required to server the new zone. I have some skepticism that all the root server operators (and others) will actually do so.

You are side stepping here the extremely relevant point that out of the 
13 root service operators, 10 are subject to the jurisdiction of the 
same court, and they will damn well comply and make the changes too - 
whether it requires another small step of another specific order to them 
or not.

As for the root operators outside the US, they will be faced with a 
tough choice.

1. Either they do the same which the US based servers would have to do, 
whereby we face the original problem of how a cctld is able to be 
completely divested on a US court order.

2. They do not comply and try what you say below which, since the US 
based operators will have to comply to the US court order, will simple 
fracture the root.

> Far more likely in my opinion: a new root authority will be established, the root trust anchor will be updated to reflect that new authority, and the root server operators (and others) will pull the zone from that new authority.

Neither of the scenario look too good to me. (I bet, they - the non US 
operators,  will simply comply with what the US guys do, but whatever.)

Which shows how significant the US court judgement is (which although 
only makes a point which has always been obvious and many of us have 
repeatedly been warning against), and whereby those who are really 
considered about the fairness and effectiveness of global governance of 
the Internet should be thinking of doing something.
> The core problem here is an assumption of top-down control of the Internet.  Despite the cliche, in reality, authority really does derive from the bottom-up. In this case, authority rests with the resolver operators that configure the trust anchor and/or the root server operators (and others). ICANN, the root management partners, and the vast array of policies, processes, and systems that exist are merely an agreed upon convention that facilitates updating the root zone.

David, not only are all of these fully subject to law, and in this case, 
unfairly to the US law, it would be quite unacceptable if they were 
operating outside any kind of law. 'Bottom down' looks a good anarchic 
term when it suits a certain status quo, but the facts are as they are.

> Regards,
> -drc
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