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

["J-F C. (Jefsey) Morfin" <jefsey@club-internet.fr>]

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






























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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