[discuss] discuss Digest, Vol 4, Issue 145

[Francis Augusto Medeiros]

On 16/03/2014, at 22:32, Avri Doria <avri at ACM.ORG> wrote:

>> 
>> The question has already been asked and I’ll ask again.  What is the
>> specific problem about being subject to US law?  As a general matter,
>> rule of law is usually considered one of the U.S.’s very strongest
>> qualities.
>> 
> 
> This has been answered many times by many people, but I will answer yet again.  US law on occasion restricts who a company does business with. Losing NTIA oversight does not change that.  IANA should not be subject to such vagaries of national law.
> 
> Beyond that, US law allows infractions of rights against the privacy etc of data and pervasive monitoring that may not be appropriate for the future of IANA and which are not consistent with other rule of law jurisdictions.
> 
> avri

Dear Avri and everyone,

I agree with you, Avri. But I believe there's even more at stake, and I think it should be carefully studied:

In the days pre-gTLD expansion, ICANN was shielded from prosecution concerning domain name conflicts/issues. The place of enforcement of court decisions was always on the domicile of the registrars and later, unfortunately, on registries. This, as many have demonstrated (Komaitis work showcases a lot of examples on this), has submitted most gTLD's to US law compliance.

With the expansion of gTLDs, as the TLD itself now has "content" (therefore we have/had lots of IPR dicussions about, as well as of public policy, etc), the place of enforcement of court decisions may end up being ICANN (or whoever has the technical authority to implement a change in the root obeying court orders). 

When ICM (.web) sued ICANN last year, it showed that this "authority" - the proposed DNSA or ICANN - will be increasingly subject to litigation and/or enforcement concerning changes to the root determined by US courts. ICANN's willingness to comply to non-US court-orders might be superseded by a decision issued by an US court.

Of course, moving the administration of the IANA functions to another country will not necessarily fix the problem, as the new organization will have to comply to (better or worse) local laws. 

While the idea of not having governments involved in the administration of IANA functions is essencial, there is still a need for a legal framework for gTLDs to prevent conflict of laws and to attend to global interests. 

Sorry for may late .2.

Best,

Francis
(my opinions do not necessarily reflect those of my organization)



__
Francis Augusto Medeiros
www.francisaugusto.com
Norwegian Research Center for Computers and Law
Oslo, Norway

 

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