@TCompuMark said recently on Twitter that

“Some interesting/complicated #gTLD objections to come from when #brands are also generic terms.”

In the root, there’s nowhere to hide.

“Apple” is a trademark. But whose is it? In fact, as we all know, two very well know companies, one in computers and an older one, in the music industry have rights to ‘APPLE’ in the context of computers, and music respectively.

But what if I, say, wanted to start a register of producers of apples. Why should a computer manufacturer and a record company have a right to stop me. The answer is, in terms of fundamental rights, that they don’t.

Yet the ICANN club seems to be geared up to give brand holders prior rights over areas that their brand is not valid in.

Now suppose Apple Computer apply for .APPLE. Apple Records object, causing the application to fail. Mutally assured destruction.

What in fact needs to happen is that the two need to cooperate on a joint venter (say .APPLE Registry LLP in which they are equal partners), obtain the name, and work out for themselves how to issue the names under .APPLE.

Sensible? Of course.

Would it ever happen. Well, I will eat a pickled herring if it does!

In our continued look at the European Commission’s Six Papers on the functioning of ICANN, even though Part One of our look at Paper 3 seems to support the view that functioning of Member States’ ccTLDs might be ultra vires the Commission’s powers as laid down by TFEU.

But let us nonetheless examine in finer detail the proposals in Paper 3, and consider the authority for the various propositions contained in them

The paper starts out with several assertions, many of which are, once again, perfectly correct, although it is sometimes seems difficult to match some of the conclusions with the premises.

 

The treatment of ICANN by ccTLDs has always been a sensitive political issue. 

Entirely correct. But it seems this not so much because the operation of ccTLDs are a matter of national sovereignty.

The extent to which it  may be a matter of national sovereignty is a matter we must return in detail on another occasion as ‘national sovereignty’ is a term of art having a specific meaning, and as has been shown in Part 1, national sovereignty may be partially given up by national Parliaments to the European Union in some areas.

Most likely it is a sensitive issue because often in the past, ICANN (in its operation of the IANA function, whether apparently under contract or not) has apparently been (a) hamfisted, (b) careless of the distinction between policy-making and executive duties,(c) and unmindful of natural justice and fair procedure.

As evidence for this proposition, take a look at the ccNSO’s Final Report of the Delegation Re-delegation and Retirement Working Group (see Note 1, below) which was released in February 2011.

It documents, among other things, that “there are several documented cases of failure to minute Board discussions regarding the re-delegation of ccTLDs contrary to the procedures as laid out in the ICANN Bylaws” and that “there are significant concerns relating to accountability and transparency of ICANN”.

Even further: “by the end of 2009 the IANA Reports had dropped all mention of the GAC Principles”.

 

Tunis Agenda Declaration

The author of Paper 3 rehearses and re-adopts the statement in the Tunis Agenda that:

“Countries should not be involved in decisions regarding another country’s country-code Top-Level Domain (ccTLD). Their legitimate interests, as expressed and defined by each country, in diverse ways, regarding decisions affecting their ccTLDs, need to be respected, upheld and addressed via a flexible and improved framework and mechanisms”.

Once again, this appears to be a perfectly valid statement, and it is one of course which is already familiar to many.

The identical principle must apply equally to the Union as to third countries.

It was submitted in Part 1 of this analysis that the Union should not be involved in decisions regarding Member States’ country-code Top Level domains unless the issue falls within the exclusive competence of competition rules, or within the shared competence of the internal market.

And even where the the internal market is concerned, subsidiarity probably applies which confirms that decisions concerned operation of ccTLDs cannot be within the powers of the Commission.

 

Problems in the way ICANN-IANA have dealt with delegations and re-delegations.

It is undeniable that there have indeed been problems in this regard, as noted above and elsewhere.

(a) ‘requirements imposed by ICANN on third country governments requesting a redelegation’.

First of all, ICANN is a private corporation, incorporated in California, and as such is subject to the rule of law. (It is also a requirement of membership of the Union that Member States subscribe to the Charter and the rule of law).

It is set out in the policies applicable to creation of country-code Top-Level Domains what the procedures are for appointment of, and change of manager. Among which is that the IANA must receive a communication from the existing manager stating that the existing manager consents to the change.

To do otherwise than what is set out in existing policy would appear to be unlawful and open to challenge.

(b) Requirements imposed in respect of IDNs

Here of course is where it gets interesting. In approaching this I would merely ask the question:

“Where is the policy on IDN ccTLDs, and to what extent is ICANN following it?”.

It seems to me that the unfortunate difficulties currently being experienced by the Union in the matter of IDN versions of .EU  can be easily explained by the answer to the above question.

(However, I must make, in passing, a statement that despite this analysis, I think ICANN has been obstructive, short-sighted and stupid and I side with the EU over their difficulties in dealing with ICANN over .EU IDNs)

Ironically one should always bear in mind that the very genesis of .EU arose when, on 25th September 2000, the ICANN Board took a decision to satisfy an apparently genuine need but which decision appeared to be ultra vires the policy in force at the time. The relevant Regulations for .EU followed that decision some years later. (It’s entirely human, although a little inconsistent, to get what you want you want by persuading ICANN to bend the existing rules, then to complain later they are not following rules when some other issue arises.)

 

(c) Unexplained delays in update root zone information.

This complaint is entirely correct. And I speak from personal experience. of 15 years in dealing with such requests.

In 1997 top-level domain operators were able, using the automatic systems of the InterNIC, to see Root Zone information updated and functioning in the root within approximately one hour.

It seems to me, as it seems to many, that the several ‘choke points’ that have been created since that facility was dismantled, following the creation of ICANN, do not serve a purely technical function.

It is imperative for the success of e-commerce, within the territory of Member States that such intentional choke points are removed. Interestingly this point, of all the points in Paper 3 probably is most likely to  fall under the shared competence of the Union with the Member States (internal market, interoperability).

It is therefore fortunate that the Paper’s author is 100% right in respect of this one point.

 

2. Possible initiatives

Whilst it the proposed initiative is understandable, it is premature and appears to be based on a simplistic view of the situation.

The nature of the relationship between national and territorial ccTLD managers, ICANN, IANA, the US Government, national government (if there is one), and other relevant public authorities (e.g. territorial government, if applicable) is complex and not as well-defined as some might wish and worthy of much more detailed study.

 

3. Possible implementation

The reference to the proposed in the draft IANA contract regarding national law appears to be over simplistic.

Of course, the deference shown to national and territorial law and jurisdiction and the recognition of principle of subsidiarity is very welcome.

Nonetheless, ICANN must be required to hold itself to the standards set out in ‘relevant international law’, and may not be required by ‘local law’ to act in any way that is inimical to standards of fundamental rights as accepted by civilised nations, and as are set out in, among other places, the European Union’s Charter of Fundamental Rights.

Surely it cannot be the position of the Union cannot be that ICANN/IANA should (for example) should be required to breach (say) Article 17 of the EU Charter if a provision of Syrian law required the expropriation of assets belonging to the .SY operator unnecessarily or disproportionately even if it was in accordance with a lawful decree of the current Syrian government?

It seems to this author, that tt would be entirely inappropriate the IANA Contractor were to be placed in a position where it may be required by being bound by a country or territory’s  law and jurisdiction to carry out any act that was in any way repugnant to the US Constitution or the European Convention.

 

Note 1: For information: this author was a member of the Delegation Re-delegation and Retirement Working Group of the ccNSO.

 

 

Whilst it seems that there a number of things in the other five Papers that might attract qualified support, this is the one in which the author appears to this writer to be most off-track.

In order to analyse this one top-down, we need to take a somewhat turgid but necessary detour into the Constitution of the European Union, and the legal sources of its powers and its competences.

Please bear with this, as I believe that the startling conclusion I reach should be worth the journey.

The European Union

The European Union is notable in that it has, and exercises sovereignty. The sovereignty that it has belongs to the Member States, who agreed to pool their sovereignty in certain areas so as to improve life for all Union Citizens.

The Treaty of Lisbon sets out principles on how sovereign rights are transferred from the nation-state to the Union and guarantees that these principles should not be infringed.

These principles are conferral, subsidiarity and proportionality.  Competences that are not conferred upon the Union in the Treaties must remain with the Member States.

Conferral means that the Parliaments of Member States may transfer responsibility from the Member State to the Union when they consider common action is preferable.

Subsidiarity (a concept that should be familiar to many people in the context of ICANN), means that action should not be taken at a higher level (i.e. by the Union) that is more appropriately taken at a lower level (i.e. by the Member States).

Proportionality means that if (and only if) it is agreed by the Member States that action at the Union level is appropriate, then the most appropriate method should be used (for example, there is no need to use legislation where less complicated methods are available).

The Treaty on the Functioning of the EU sets out that the EU has three types of competences: ‘exclusive’, ‘shared‘ and ‘supporting‘ which are set out in Arts 3 to 5 TFEU.

The internal market, for example is a shared competence with the Member States, although competition rules in the internal market is an exclusive competence. (See also Note 1 below).

The supporting competences do not appear to have any relevance to ICANN policy.

Therefore, the conclusion of this first look at Paper 3 is that it appears that it may be the case that :-

1.The operation of Member States’ ccTLDs does not fall within the exclusive competences of the Union unless the mattter relates to competition rules of the internal market.

2. The operation of Member States’ ccTLDs does not fall within the shared competences of the Union unless the matter relates to the internal market or interoperabiltiy of Member States’ national networks with TEN.

3. The operation of Member States’ ccTLDs does not fall within any of the supporting competences.

then

most of what is proposed by the European Union in Paper 3 would appear to be in relation to matters that are reserved to the Member States, and not within Arts 3 to 5 TFEU.

If I am right in this view,  Paper 3 should be opposed by Member States for that reason alone. I would welcome comment or contrary argument.

(Part 2 of this look at Paper 3: ccTLDs will look at the content of the paper itself.)

---

Note 1:

It is interesting to note that “trans-European networks” are also a shared competence.

It seems entire reasonable that issues of technical interoperability and interconnection between national networks are a shared competence, but it seems likely to this author that the creation of national policy for relationships between Member States’ national networks (it seems clear that ccTLDs are not a part of TEN) and non-European networks cannot be either an exclusive or a shared competence.

Milton Mueller criticises the second European Commission non-paper, which is on ICANN’s proposed introduction of new gTLDs, here.

I can’t remember a time when Milton wasn’t involved in ICANN. Indeed it’s very likely there was never such a time. I may be wrong, but I suspect I first ran into Dr Mueller during the International Forum on the White Paper in 1998, before ICANN’s very creation. (If it wasn’t then, it was at one of the very first ICANN meetings, in 1999).

So Milton’s served his time. He’s not a newbie. But just like one shouldn’t criticise Mr De Graaf for being a newbie, one shouldn’t automatically accord Dr Mueller excessive deference to his experience, undeniable expertise and undoubted knowledge.

Fortunately, it appears that Milton is mostly right in his take on Paper 2. But Milton’s critique is pretty densely packed and I wonder how many people will read down to the explosive conclusion. Which is strong stuff indeed.

Emily Taylor is also right when she points out, also in response to the .nxt leaks, that human rights are at the forefont of the revolution the Internet has wrought and that the Commission appears to be “playing into the hands of governments whose values it should not share.”

 

What strikes me as odd in the whole GAC – ICANN interaction is that no-one, seems to be prepared to look at this from the point of view of fundamental principles. For example, to me ICANN seems at pains to close its eyes to any discussion issue of human rights. And it seems to me that the civil society people have an overwhelming US take on things.

All this is beginning to convince me that the absolutism of the First Amendment is not superior to its Council of Europe equivalent, which seems to take a slightly different along approach on the path to the same goal.

Now, it seems to me that the most important sentence in the Commission’s Paper 2 seems to be this:-

‘They also present GAC members with the unwelcome possibility of having to determine the merits of very politically sensitive or divisive issues related to national identity, freedom of speech, human rights and ethnic diversity’.

Again, how true!

And not only extremely unwelcome,  probably extremely difficult and inconvenient for the GAC to undertake too. One need only look at the situation in Syria and Libya at the moment to realise that some sovereign nation-states cannot be trusted to protect the most fundmental of rights, such as the right to life.

What chance then that a body such as the GAC can reach a consensus on the balancing act between freedom of expression and the right to privacy, or between the right to (intellectual) property and freedom of expression? Such are the exercises that the Strasbourg Court (and also, less frequently, the Luxembourg Court) are called upon to make.

Now the interesting thing is that to me, it is clear that the paper’s author is wholly cognisant of the obligation of the Commission (as with all the agencies of the Union) to respect fundamental rights as human rights are mentioned within the paper. Indeed, if the Strasbourg case law is regarded as binding upon the Union¹ then the Commission is bound in law by the positive obligation to promote the fundamental rights. It cannot abrogate that obligation by declaring it to be unwelcome.

Proposals to pre-regulate content that owe much of their heritage to the army of IP interests and their legal advisers must be tested in the balancing exercise before they can be found to be legitimate. (An interesting case to examine on another occasion might that which came out of the marriage of a famous American film actor to another actor, equally famous in Britain. Their claim involved IP rights which they had sold to a tabloid magazine, privacy rights and the rights of other section of the media to engage in what would probably be, in the USA, First Amendment protected speech.)

The obligation on the Commission to see that rights of property owners (e.g. IP rights) are be protected is undeniable.

But freedom of expression rights are definitely engaged here. And in the balancing exercise, any restriction on freedom of expression in the pursuit of the protection of property must be (a) lawful, (b) necessary in a democratic society, and (c) proportionate.

To be an allowable restriction on the right to expression, all three limbs of the test must hold.

And I submit that the position of the Commission in Paper 2 fails on all three.

I seems to me that the most important facts we must bear in mind when dealing with this appears to be

1. “a top-level domain name string is in itself a form of expression”;

2. The string itself is not the content that it may be used as a route to find (think of the .XXX controversy); and

3. (as appears crystal clear from RFC1591 and its predecessors), a top-level domain name is a domain name like any other.

Lest the absence of any dots in TLD names confuse one may ask a supplementary question as follows — should the same regulations that are proposed to be imposed upon new TLD regstrites apply equally to the operators of existing or future domain name registries at the second level of the DNS, such as CentralNIC‘s UK.COM, or EU.ORG. And if not, why not?

It seems to me the real question the Commission’s legal advisers should be asking itself is this.

What might the potential consequences be of the Commission itself and its staff involved working to promote a system which apparently contravenes the EU Charter? 

I would put real money on any bet that noone from Havana, Beijing nor Tehran will be there in Strasbourg or Luxembourg if the Commission ends up in a position where it has to try to defend the contents of much of Paper 2.

 

^{1 Technically, judgments of the Cour Européenne des Droits de l‘Homme are declaratory, albeit the 47 Member Countries have a solemn and binding obligation in international law to enforce them. However, one of the main purposes of the European Union’s Charter is to make fundamental rights binding on the institutions of the Union, and therefore they would be taken into account in any question before the Cour de Justice de l’Union Européenne judgments of which are binding on the Union and the Member States.}

 

It seems to me that since yesterday there has been more than a couple of domain industry Chicken Littles who are extremely worried about the structural integrity that part of the  atmosphere that is visible from the surface of the Earth.

According to long-time ICANN commentator Kieren McCarthy, in different parts of the dot-nxt.com website here and here, the author of the non-papers, Dhr. de Graaf seems to be described as both “a newbie” and “divisive”.  (Do non-papers, have non-authors, I wonder?)

The first, newness, is hardly a sin. We were all newbies once, even those of us who have been around the internet for ever. (I remember the day the tourists were kicked off the ARPAnet – that makes me feel old!).

And for heavens’ sake, we must welcome the diversity of opinion of new contributors, particularly from international organisations having a unique nature as does the EU. For those of us in all parts of Europe (not just the Member States) the Union plays a very significant part in our daily lives and it is incumbent on us all to learn to love it, or at least understand it better.

Secondly, divisiveness. If that means taking a new and different opinion, then so much the better.

A controversial opinion can be misinformed. It can be illogical. It can be just plain wrong.

But differing opinions can only be divisive if we let them divide.  A diversity of approach, again, contributes to synthesis, and is to be welcomed. (I suppose it’s inevitable that I’m now going to be know as the divisive oldie.)

So having despatched with the apparent ad hominem objections to the attributed author of ‘Six Non Papers’, we should turn to what they actually say, and what they might, if they become accepted, mean for ICANN and the DNS.

While some of the contents may raise one or two hackles, it is not impossible that some of you might be reasonably and pleasantly surprised at others. Let’s see. Stay tuned as we shall look at Number One out of the Six in the next episode. BCNU