Re: [ga] Request to ban Basque nationalist sites via DNS

["Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>]

I have to confess that I don't quite follow the logic here, especially
starting from point (2)....

On Sun, 1 Sep 2002, J-F C. (Jefsey)  Morfin wrote:

> Dear Vittorio, Dear Michael,
> I am afraid Vittorio you go by the normal laws we lived with for centuries. 
> I am calling now our legal expert, Michael, and I revert to US law. ICANN 
> has been created as a front-end for the USG to apply the US law and its 
> claim to a worldwide dominance over the data exchanges and relations.
> 
> 1. this dominance is expressed by 1996 communications acts. They say two 
> things:
> 
> 1.1. the "enhanced" services are now "information" services and as such 
> removed from the ITU rules, agreements and jurisprudence protection which 
> helped an non US controlled development - and which are replaced by the 
> ICANN "contractnet" policy legitimated by the GAC and the constant call of 
> ICANN to Govs.
> 
> 1.2 that the Internet is made of all the computers connected to 
> interoperated packet switch networks in the world. Under that dominance 
> there is an unique continuum ruled by ICANN under the USG root originated 
> name space.
> 
> 2. What Spains claims is that this continuum is to be used in its favor and 
> not only in US favor. This may mean two things: either that Spain puts 
> itself under ICANN jurisdiction, ie under the US dominance, or that Spain 
> claims that the namespace is to be ruled by a concertance, at least where 
> existing antiterrorist rules and agreements apply.
> 
> Judge Garzon is unfortunately probably more interested in his name being 
> known than in Spanish digital sovereignty. Calling on the Australian 
> Government is a proper move - Gov to Gov. Calling on the Spanish Gov to 
> implement a serious European and Spanish root policy permitting to address 
> that kind of problem (barring Spanish access to Batasunna sites, 
> prosecuting people accessing them, sueing the ASP/ISPs permmiting access 
> from Spain to their site - like in the French Yahoo case) would be a proper 
> move. But calling on ICANN is to acknowledge the US dominance and to create 
> a legal doctrine about an ICANN governed International Internet continuum. 
> This opposes the exiting/begining practice of more informed countries like 
> Viet-Name (national views), China (national root), Saudi (control of adult 
> hosts), Tunisia (e-mail control), France (Yahoo), USA (Homeland), etc. and 
> the general move towards  specific national rules (about logging the calls) 
> and legal protection (privacy).
> jfc
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> At 10:31 01/09/02, Vittorio Bertola wrote:
> 
> >On Sat, 31 Aug 2002 17:37:11 +0200, you wrote:
> >
> > >>Spain steps up pressure on Basque militants at home and abroad
> > >(...)
> > >>Spanish prosecutors Friday also requested Judge Garzon to apply to the
> > >>Australian government and The Internet Corporation for Assigned Names
> > >>and Numbers, based in the United States, to ban Batasuna web sites
> > >>including www.batasuna.org, www.euskal-herritarrok.org et
> > >>www.batasuna-barakaldo.org.
> >
> >Well - the usual display of ignorance. Even supporters of the "strong
> >ICANN" model don't think that ICANN should ever be able to "ban web
> >sites" :-)
> >
> >If I were the Spanish government... well, if I actually were, I'd
> >perhaps try other roads to deal with the persistent Basque terrorism,
> >and surely I wouldn't go round the world trying to turn off web sites,
> >but that's another story. However, assuming that I were a government
> >wishing to close a web site, firstly I'd act on the hosting; and even
> >in this case, it seems unlikely to me that the DoC will let foreign
> >governments or law courts force the dissolution of any hosting
> >contract with an US company, if not on a basis of very informal "moral
> >suasion".
> >
> >But for us it is more interesting to understand what might practically
> >happen about the domain name registration. Of course ICANN does not
> >have the power of deleting specific registrations, does it? (And I
> >hope it will never have.) So the Spanish could only challenge the
> >validity of the registration, either by trying to force Melbourne IT
> >to delete the registration - but I don't think that a Spanish law
> >would affect an Australian company, and I don't think that that
> >registration is in any way illegal under Australian laws - or by
> >starting an UDRP.
> >
> >By the way, the UDRP would possibly be the only "safe" way - if you
> >simply get the registration deleted, nothing forbids anyone else to go
> >and register the domain name again one day later; so - given that,
> >differently from what happens in many ccTLDs, there is not a list of
> >"forbidden words" that gTLD registries will refuse as domain names -
> >what you need is really to have the "offending name" owned by
> >yourself.
> >
> >Now, if you take the UDRP rules, I don't think there's anything that
> >says that the Spanish government has any right over batasuna.org more
> >than Batasuna itself. So either the UDRP rules are modified for this
> >kind of cases (or simply, a sympathetic ruler invents something funny
> >to let the Spanish win the cause, perhaps after a set of invisible
> >international pressures), or we could see the Spanish government
> >registering "Batasuna" as a trademark trying to exploit it to win the
> >UDRP - at least if the Basque didn't do it before them :-)
> >
> >So in the end, my conclusion is partly positive and partly negative:
> >the positive part is that shutting off web sites still seems to be
> >very hard, and the negative part is that the only ways you could
> >possibly use are either by informally and privately exploiting your
> >power to "convince" service providers to voluntarily close the site,
> >or by using intellectual property tools. Apparently, the current
> >international Internet framework is much more favourable to trademark
> >owners than it is to anti-terrorism efforts.
> >--
> >vb.               [Vittorio Bertola - v.bertola [a] bertola.eu.org]<------
> >----------------------> http://bertola.eu.org/ <--------------------------
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