Re: [ga] New TLD White Paper released

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

Thank you for the thoughtful and interesting comments.

I consider the rfc 1591 requirement for local residence to be a fairly
strong pointer and guarantee of local control.  The government can always
regulate a domiciliary or resident. If the ccTLD management is
non-resident, without the government's permission, this is cause for
re-delegation, and should there be one in this case the delegee has little
or no valid ground to complain.

Because I take this view, I think the need for a more formalized and
internationalized system is low.  I also think the precedential effect of
making a private address resident on private equipment subject to
international regulation would on the whole be negative.

On Wed, 26 Mar 2003, Roberto Gaetano wrote:

> Michael Froomkin wrote:
> >
> >I cannot prove to you a negative, but I have searched high and low -- I am
> >writing an article about this very issue -- and it is my contention to you
> >that not a single one of these four sources exists to support the
> >proposition that a state "owns" the ccTLD whose TLD is identical to the
> >ISO country code associated with that state as a matter of public
> >international law. [It cannot be international private law as there is
> >neither treaty nor contract to support this claim.] Note, in this context,
> >that the ISO is itself a private body.  If the matter is so obvious,
> >surely someone could come up with a citation prior to the GAC's
> >declaration that this rule was already a fact?
> 
> I did not search high and low, so I'm speaking only from impressions and 
> without facts.
> I believe Prof. Froomkin to be correct: I would be very much surprised if 
> such legal foundation did formally exist, given the way the IANA delegation 
> of the cc started.
> 
> However, there has been an attempt to root the ccTLDs in the related 
> country, proven at least by two facts:
> - no delegation has been granted (in the early days) against the will of the 
> government of the country owning the ISO-3166 code string
> - some (weak) requirement of location of the registry have been introduced
> 
> Of course, as noted repeatedly by numerous witnesses of the early days of 
> the Internet, Ion Postel was operating in a situation in which there was 
> simply a lack of legal international infrastructure, operating a formally 
> private service with the understanding (by him, but not necessarily by 
> everybody else) that the service might have acquired world-wide relevance. 
> Hence, IANA avoided getting trapped into "what is a legitimate country" and 
> relied on an international standard, i.e. ISO-3166, and "best judgement" 
> (given the circumstances) about the delegation.
> 
> The great scheme of things was:
> - a set of country-related TLDs, managed in principle by each sovereign 
> country in ways that they would best choose, given the different political 
> and economical model (centralized, decentralized, state-owned, privately 
> owned, subcontracted, etc.);
> - a set of general-purpose TLDs, not related to a specific geography, and 
> delegated via a bid process.
> 
> For the second part, we all know how it ended. But this had a disastrous 
> effect also on the first part, because it is simply the artificial shortage 
> of gTLDs that has increased the interest in ccTLDs.
> 
> Back to the original points in the thread:
> 1. Yes, indeed, there is currently no international legal framework that 
> assigns the ccTLDs to the country that owns the corresponding ISO-3166 code, 
> which means that in principle any ccTLD could be delegated to any 
> organization. The question is: should an international legal framework be 
> created? Or, put it differently, is it reasonable that a sovereign country 
> has control on a unique resource that identifies it in the Internet? If the 
> answer is yes, the second question will obviously be how to manage the (few) 
> situations in which this is currently not the case. On this subject, Prof. 
> Froomkin might have more experience, but I believe that it happens all the 
> time that private interests collide with public interests, and there are 
> ways to pay off the private business (think about building a new highway on 
> private property, for instance).
> 2. Prof. Mueller's paper, that I still lack the time to digest in its 
> entirety, seems to me to provide an important contribution to the debate. 
> Personally, I do believe that in one way or the other ICANN has to come up 
> with a reasonable solution to the delegation of new TLDs, we might as well 
> discuss how. To delay this process further is not an option.
> 
> Another point was brought by John Berryhill, namely the way to "force" the 
> root operator, subject to the law of his/her country, to obey a redelegation 
> mandated by a different country, using these words:
> >
> >...  How do you propose they exercise their "right"?  Invade?
> 
> We can all see that these days this type of solution can be applied as 
> alternative to international law, but I still think that there are better 
> ways to operate. What about to have the A-root under international 
> jurisdiction? I know, it's not the first time I say that, but I thought 
> that, given the current international situation, this should be restated.
> 
> Best regards
> Roberto
> 
> 
> 
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A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
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