Thursday, 9th February was an interesting day in court in California.
The Appeals Court for the Ninth Circuit DENIED President Trump’s appeal to lift the temporary restraining order suspending his ban on the nationals of seven, majority Muslim, nations.
In domain industry news, the Superior Court for the County of Los Angeles DENIED DotConnectAfrica’s renewed application for a temporary restraining order against ICANN proceeding with the remaining technical and administrative steps towards the delegation of the .AFRICA top-level domain to ZACR.
This means there’s nothing stopping .AFRICA from appearing in the root zone any time soon.
Believe it or not, DCA still have an active court case against ICANN over .AFRICA but the landscape is now changed considerably, and it’s now much less likely we will see an upset.
On the 22nd of December, just as the entire domain name world was preparing to celebrate Christmas, the Honorable Judge F Rodriquez refused the application by the Dot Connect Africa Trust for a preliminary injunction against the delegation of .AFRICA.
The decision notice is elegant and simple in its rationale.
“The Plaintiff’s motion for the imposition of a Preliminary Injuction is DENIED, based on the reasoning expressed in the oral and written arguments of defense counsel”.
Or in other words the court accepted the arguments of ICANN’s legal team in their entirety, and rejected all of DCA’s arguments.
Now, this doesn’t mean that DCA has lost the substantive case about its application.
But it does rather make the substantive case mostly irrelevant.
An injunction (whether temporary, preliminary or permanent) is an equitable remedy. Lawyers describe equitable remedies (as contrasted to legal remedies) as being discretionary.
This does not mean courts will agree or refuse them on a whim, of course. There is a settled body of equitable principles which guides how such remedies may be granted.
One such principle is that relief will not be granted if damages would be a suitable legal remedy in the main case.
Clearly if (and it’s a very big if) ICANN had done something wrong against DCA, DCA could claim damages — possibly large damages– for its losses. But it never had a ‘right’ to be awarded the domain name. ICANN is not a government organisation, so there is no suggestion that its decisions can be judicially reviewed, in the way that (say) the award of a rail franchise by the Department of Transport could be.
ICANN will open for business today (3rd January) at around 4 or 5 o’clock European time.
In the light of the lifting of the temporary injunction, I would be very surprised if within the next few days that .AFRICA did not proceed to delegation in accordance with the contract already signed between ICANN and ZACR.
Göran Marby, currently Director-General of the Swedish Post and Telecom Authority (PTS) to start at ICANN May 2016
Los Angeles, California… Göran Marby, an experienced business executive and government leader has been named the next President and Chief Executive Officer of the Internet Corporation for Assigned Names and Numbers (ICANN).
“I’m delighted to announce Göran as the new head of ICANN,” said Dr. Stephen Crocker, Chair of the ICANN Board of Directors. “His leadership experience as a technology CEO and start up founder as well as his current experience as Director-General of the Swedish Post and Telecom Authority will be invaluable as ICANN moves towards the next chapter in its history. We conducted an extensive, global search and Göran impressed us all throughout with his shared values, operational experience and understanding of the Internet ecosystem. I’m looking forward to working with him and what I know will be his substantial contribution to ICANN and to helping ensure a stable, secure and unified global Internet.”
Marby is a Swedish citizen, currently living in Stockholm. He and his family will be relocating to Los Angeles, California the location of one of ICANN’s three global hubs.
“I am very excited to be joining ICANN and joining at the start of a new era for the organization and the community,” said Marby. “While I know there is much for me to learn, I am eager to work with ICANN’s multistakeholder community to continue all the good work that ICANN has been doing and am very committed to implementing the community’s decisions – both with respect to the IANA Stewardship Transition, but also in the myriad important areas of ICANN policy development as it fulfills its mission.”
Marby will succeed current President and CEO Fadi Chehadé whose term finishes on March 15, 2016. Marby will join ICANN in May 2016. During this time, Akram Atallah, President of ICANN’s Global Domains Division will serve as acting CEO.
“I am very grateful to Akram for agreeing to step into this role and providing the continuity and leadership ICANN needs at such an important time,” said Dr Crocker.
Göran Marby has more than 20 years of experience in the Internet and technology sectors. Prior to joining PTS he co-founded AppGate Network Security AB a security software company where he served as CEO between 2002 and 2009 with a focus on international customers and operations.
He has held several other leadership roles in the Internet and technology sectors including as CEO of Cygate a network services company, Country Manager for Cisco in Sweden and as CEO of Unisource Business Networks in Sweden.
Marby holds a Bachelor of Science from the University of Gothenburg School Economics.
As reported at domainincite.com and .NXT the US Government has scrapped the current IANA contract procurement process, reportedly saying in the process that ICANN’s submission didn’t meet the requirements of the global community.
The effect of this, although ICANN have another six-month stay of execution, has to be to cast medium-to-long-term doubt over ICANN’s role as IANA manager.
It would also might be perceivable by some (whether intended that way or not) as somewhat of a sour note for departing CEO Rod Beckstrom to end his time at ICANN on
Whether any of the criticisms that have been leveled at Mr Beckstrom during his tenure have substance or not, it would appear that one success he should have expected to bank upon would have been ICANN to be awarded the IANA contract, a job it’s effectively been doing since it was formed.
The apparent message that ICANN is ‘not fit-for-purpose’ in respect of the IANA contract does not augur well.
It’s also a shame that ICANN’s failure to get a grasp on the global community’s IANA needs may result in demotivating the very staff that I know from personal experience provide dedication above and beyond the call-of-duty.
Whoever Rod’s replacement as CEO may be, she (or he) will have to put “getting a grip” as being the very highest priority on taking post.
After all, gTLDS use IANA equally as ccTLDs. And can ICANN REALLY have the moral or other authority to sign contracts with newTLDs if its future as the IANA is in this much doubt?
“Clearly an organization like ICANN, which has been conferred with important responsibilities with clear public policy impacts should meet the highest standards of transparency, accountability, and independence.”
These are the words of Jonathan Todd, a public spokesman for the European Union, reported by Kieren McCarthy.
It is undeniable and unarguable that ICANN Board decisions have public policy implications and impacts around the world.
So that is why bodies with responsbility for public policy, such as national and territorial governments, the European Union, the Council of Europe and even the Olympic Committee must be important voices in the ICANN process.
And so are the figures we love to hate, the intellectual property lawyers.
And civil society and human rights advocates as well.
It has been said to me, by way of negotiation theory, that sometimes the indicator of the best deal is that each party is equally UN-happy.
The words of Mr Todd are a statement of the obvious. But we need to be reminded of them.
I am sure that neither TLD Holdings plc nor Peter Dengate Thrush envisaged the furore that the announcement of the former ICANN Chairman’s new job would provoke.
That omelette can’t be turned back into eggs, but ICANN’s role must now be to produce even-handed, workable guidelines for the future that pass the balancing act test of being fair on the employee or former officeholder, as well as upholding not only the absence, but the appearance of absence of conflict of interest.
I wonder, is everyone equally unhappy with ICANN yet?
In section 1, the general description of the issue, the complaint appears to reduce to the fact that involvement in ICANN is complex, time-consuming and difficult to keep up with. Well . . . .EXACTLY! This is the exact same issue we have been wrestling with in the other constituiences. When the paper’s author says “efficient work flow process and dedicated support from a professional and adequately resourced [GAC] secretariat” is required, how can we possibly disagree?
Incidentally, that’s not to say that we don’t get such support in our own constituencies — I’ve been particularly impressed by the support given to the Delegation and Redelegation and Framework of Interpretation Working Groups of the ccNSO in recent months.
A note of caution though. It does not seem obvious to me that GAC consensus must necessarily always represent ‘the global public interest’.
Indeed, I am not sure that it’s easy to identify the global public interest in many areas. Compare and contrast China’s public policy on freedom of expression with that if the USA, for example. A consensus within GAC on freedom of expression issues which including China, must necessarily be a compromise and thereby inevitably water down the strong protections of the First Amendment or Article 11 of the European Union Charter. Syria, and up until a few weeks ago Libya will have had other opinions about ‘the public interest’ too!
But these are not new issues. The Foreign Ministers of the Member States and other countries square such circles daily.
The crucial issue arises when it is said that:
“There needs to be agreement at the political level that GAC members will commit sufficient resources to GAC processes and be represented at a sufficiently high level to ensure the political legitimacy of GAC advice”.
Here I couldn’t agree more.
Such an agreement, at the political level, would appear to be in everyone’s interest, whether you are looking at this from the public or private sector.
Regrettably ICANN (the corporation) has neither the power, the jurisdiction, nor the competence to achieve that goal.
I hope that agreement and those resources can indeed be found at the political level.
Once I explain what it is I do for a living, people, particularly here locally in the Channel Islands often say to me “But which domain extension should my business or organisation be using for best effect?”.
What is interesting, is that the approach people have on the subject appears to be influenced by their age, length of time on the Internet and the locations where their business is targetting.
The thing to always bear in mind, is that a major (although not the only) use of a domain name, is as a brand.
A brand for a business, organisation or for a particular topic. You can see the thinking behind my choice of the nigel.je brand here.
Because of the Crown Dependencies’ close links, both geographic, constitutional and economic, with the United Kingdom, before 1996 it was very common for those few Channel Island organisations that were on the Internet at the time, to use .UK domain names, and as what we now call “gTLD” names. (Usually .NET since the .COM usually belonged to an American company).
15 years ago, when we created the Channel Islands’ domain registry, there were only two ISPs (GUERNSEY.NET in Guernsey, and SuperNet (ITL.NET) in Jersey
Back then, even the Islands’ governments used to use .GOV.UK or X.400. (In fact we still maintain a legacy registration of the name GUERNSEY.GOV.UK with JA.NET on behalf of the States). Also, despite Guernsey not being part of the UK, because of the integration with the UK forces, the police continue to use GUERNSEY.POLICE.UK as well as various .GG names for other purposes.
(It’s perhaps worth noting that to some people outside, the message which the use of that brand appears to send out is that despite the Islands’ complete domestic autonomy from the UK, the forces of law and order are under significant influence if not control from London.)
Following the creation of the .GG, .JE and .IM country codes on the Internet in 1996, and adoption by the International Standards Organisation (ISO) as official territorial two-letter ISO codes in 2006, Guernsey and Jersey (and the Isle of Man) has started to appear in drop down lists on websites as options. If you don’t see Guernse, Jersey and the Isle of Man, the website developer is almost certainly using out-of-date libraries.
This is all part of what our politicians rightly call “the emerging international personality of the jurisdiction”.
Image via Wikipedia
What Montenegro did in a couple of years, we take 800 or so years to do!).
In general, this is A Very Good Thing.
But it’s left quite an interesting approach to using domain names.
Anyone who was at school after about 1998 naturally understands immediately that .GG = Guernsey, and .JE = Jersey as they will have been familiar with .sch.gg and .sch.je email addresses.
However anyone older than that may be subscribe to have the school of thought that was common in the early days after the Internet arrived in the Islands and took the pragmatic view that “we aren’t part of the UK, the .COM is in use by an American company. so let’s use .NET”. An example of that, already mentions, is guernsey.net (now owned by Wave Telecom).
Furthermore people who came onto the internet around in the dotCOM boom (and bust!) think that .COM is the be-all and end all when it comes to online businesses.
And then of course, there are the deliberate branding exercises.
Some companies want to be seen to be a global enterprise. They feel they have to use .COM (if they can find one available or more likely, are forced to buy one in the ‘secondary market’)..
Surprising to some of us, but some companies want to downplay their Channel Island connections.
After all, we have UK +44 telephone numbers. We have Royal Mail standard postcodes and even though we have our own Postal Administrations, our mail, from outside the British Islands is addressed to the UK.
Therefore it’s understandable enough that some Channel Island companies, particularly those taking advantage of using Low Value Consignment Relief, may not want to highlight, or even may wish to obscure their Channel Island connections. A .CO.UK domain name is the natural choice for companies who want to pretend to be in the UK.
But a choice of domain name can have major implications. In a little know ruling, the European Court of Justice ruled that what domain name a company used for its website, and even whether it put its phone number on that website in internationa (e.g. +44) rather than national dialling code format, could have an effect on whether it was considered to be targeting customers abroad.
So I guess it’s only a matter of time before the UK Inland Revenue decides that a conscious choice to use .CO.UK is one factor leading to a UK tax bill of some sort.
And using overseas domains has all sorts of jurisdictional risks. I’ve written already about the risks of using unstable countries’ domains (BIT.LY etc).
And Alderney-based Full Tilt Poker found itself in some difficulty when they realised that the fact that the registry for all .COM domains is the the US made their domain subject to seizure.
At the end of the day, local companies should be proud of their origin, and for practical reasons as well as sentiment, should use the local domain.
Last week a court in the USA seized control of the .COM domains belonging to several online poker sites, inlcuding Poker Stars, Full Tilt Poker and Absolute Poker.
On the face of the registration records, these domain registration were owned by organisations outside the USA, although there seemed to be some suggestion that one or more of them may have been ultimately controlled by US citizens or residents.
On the one hand, it is entirely right that the courtroom is the right place for decisions like this. No excutive agency, or a law enforcement body, or even worse, domain vigilantes should have such powers.
And the face that these recent temporary seizures were done through a Court is actually good news.
Democratic countries have something called the Rule of Law which protects personal property (which the bundle of rights under a domain registration contract undoubtedly is) and it should take a court order to seize things.
On the other hand, it seems that removing something which in e-commerce terms is equivalent to both the brand and the shop window of a business, is fairly draconian, and should be resorted to in the most egregious of cases. The commercial harm that, if only for a short time, a notice is placed on a company’s website stating it has been shut down on the basis of alleged criminal activity will not be insignificant.
The question which a British or European Court would probably have asked itself before granting a Prohibitory or Mandatory Order, is whether the requested remedy was proportionate.
Image via Wikipedia
Now it seems that at least some those domain names have been returned to use.
At the time of writing pokerstars.com is forwarding to pokerstars.eu.
fulltiltpoker.com looks to be back to normal, although I understand from what I read at gamblingcontrol.org (Full Tilt is licenced here in Alderney) that they have suspended real-money play from the USA. Frankly, I’m surprised that an Alderney company ever allowed US players!
But there’s a big lesson in this episode.
And it’s something that has been obvious to those of us in the domain name industry for years, but self-evidently, it’s not something that the risk management people at online poker sites have ever considered before.
It’s not only ‘foreign’ ccTLDs like Libya that have jurisidictional legal risk to an online e-commerce business. Any company which uses a .COM, .NET or any other ICANN ‘gTLD’ domain name places itself at risk of losing its entire business and voluntarily puts itself within US jurisdiction.
And it’s not only criminal proceedings in above-average risk sectors (such as online poker) that are vulnerable.
Any non-country-code domain name can be disputed in an American court. And well established, legal businesses could find themselves on the end of an expensive, and inconvenient ‘reverse cyber hijacking’ attempt in a US court. It’s happened before, and it will happen again. In 1997the British owners of PRINCE.COM had to take swift legal action in London’s High Court to keep their domain from an American company who, as an American company, believed they had a better right to it
Suddenly your local country-code domain name might seem like a much better to do business in.
And the long-awaited ICANN ‘new generics’ much less so.
Oh, and an amusing postscript and shameless piece of self-promotion.
The country-code for the Bailiwick of Guernsey, which includes Alderney, is actually ‘GG’ which is poker terminology for ‘Good Game’. I can hear Bruce Forsyth in my head already!
Several weeks ago, in one of my first articles on Notes from a Small Island I noted that there was systemic risk in using domain names registered in foreign countries such as Libya.
And by ‘foreign’, I don’t mean overseas, I mean ‘different – culturally, linguistically, and jurisdictionally’.
In summary, because of communication difficulties caused by the Libyan civil war, it appears that this particular .LY domain registration couldn’t be renewed and went off the air temporarily.
Now both .GG and .JE (the Channel Islands) have their own a small share of’ domain hack’ registrations.
GG has several different flattering meaning in Chinese internet slang. It also means ‘good game’ to computer gamers and Internet chess and poker players. There’s even a Tennessee religious group. JE means ‘I’ in French, and both ‘you’ and ‘little’ in Dutch.
The registry welcome overseas registrants — there are no artificial restrictions on registration at all, although it’s important to note that we are not advertising or promoting the domains as anything at all other than the local official two letter codes for the Channel Islands. It is clear in the Agreement, that the contract of registration is under our laws, and our courts have jurisdiction.
Image via Wikipedia
Fortunately, we have had a stable system of government and an independent judiciary for many hundreds of years – as a common-law jurisdiction under the English Crown. This gives registrants, in the same way as international banks and others in the finance industry who open branches of their businesses locally, a large amount of comfort that our system is logical and predictable and operates under the Rule of Law.
But if a third party raises a dispute over a GG or JE name, you will either have to resolve it in our equivalent of the UDRP, or hire a local Advocate to represent you in court.
And that might be an inconvenience, to say the least, depending on where you are from.
Sometimes, it seems, the capacity of apparently sane and rational individuals to hold irrational and self-inconsistent views reaches new heights.
Image by kieren mccarthy via Flickr
Take the strange case of the .XXX domain which was finally approved a couple of hours ago, after many stops and starts over the last few years, though for people outside the rarified world of Internet Governance, it won’t have made much impact.
.XXX was a proposal, hotly debated for many years now, by British-born, Florida-based businessman Stuart Lawley to create a web address suffix (just like .COM for companies or .GG for Guernsey) to allow content publishers in the euphemistically-named ‘adult entertainment industry’ to create website and email addresses ending in .XXX (e.g. www.se.xxx).
Let’s get one thing straight – whether or not there is such a new extension is a matter of amused indifferernce to me. — it’s somewhat unlikely I should ever want an XXX domain name, but you never know.
What I do see as important, are the rights of internet users to free expression without disproportionate interference in those rights.
Mr Lawley’s plan which he has been promoting for 6 or 7 years, was fiercely opposed, as you might imagine.
But it was opposed by a most curious coalition. An unholy alliance between religous and moralist fundamentalists and porn producers.
Yes, that right. Unbeleivably, a part of the industry that the new web address is planned to serve doesn’t want it. (Part does self-evidently).
Now I’ve recently been attending the international meeting at which .XXX was finally approved. (I’m not part of the group of people – the ICANN Board – which made the actual decision). Andt the whole meeting was picketed. Even those of us, like me, that werenot directly involved in the decision making process.
The group doing the picketing was the ironically-named ‘Free Speech Coalition’ whose sole message appeared to be ‘Ban .XXX’.
I kid you not, they were chanting ‘Free speech now- no to XXX‘.
Is it only me that can see the irony in a group calling itself the Free Speech Coalition trying to ban some one from using what, after all, is simply a short, three-letter string. They really are confusing labels with content. But that is par for the course in the internet naming industry.
There are well advanced plans for ‘.GAY‘. Will the the African Bishops get together with Stonewall to oppose .GAY?
Or perhaps Alcoholics Anonymous will join with the Licensed Victuallers to ban .BOOZE
And this is deeply concerning for free speech. It is a fundamental right that we should be allowed to say what we like, within lawful, necessary and proportionate limits.
One of the opposing voices was an attorney and former pornographer, who through an impassioned speech opposing .XXX on free speech grounds, stated that he had the First Amendment tattooed on him.
We took up the argument in the lobby on the way out. Although measured and courteous, he was still impassioned — at one time partially disrobing to show me the actual tattoo. It was on his bicep, for the curious, not the other place I’d imagined. And it was nothing like how you might imagine someone in the porn industry taking off the clothes in front of you might be
There is no compulsion whatsoever for pornographers to stop using .COM so can someone please tell me where is there any interference with their free speech rights. Yet, these so-called Free Speech advocates are arguing, dangerously, in my opinion, to suppress a form of expression — the use of a three letter string as top-level domain name by Mr Lawley.
