Re: [ga] New TLD White Paper released

[Jeff Williams <jwkckid1@ix.netcom.com>]

Michael and all former DNSO GA members,

Michael Froomkin - U.Miami School of Law wrote:

> 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.

  I would concur with Micahael's statement here. Indeed the lack
of a governments permission of their respective ISO ccTLD that is
non-resident is a possible cause for redeligation for that ccTLD.

  However as this issue has been discussed, debated a number of times,
this contention is really not in reasonable dispute.

>
>
> 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.

  Also agreed here as well.  However in that international regulation
is available presently, such a cause for redeligation is problematic.

>
>
> 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
> >
> >
> >
> > _________________________________________________________________
> > MSN 8 helps eliminate e-mail viruses. Get 2 months FREE*.
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> >
> >
>
> --
>                 Please visit http://www.icannwatch.org
> A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> +1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
>                         -->It's warm here.<--
>
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Regards,
--
Jeffrey A. Williams
Spokesman for INEGroup LLA. - (Over 129k members/stakeholders strong!)
================================================================
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