2014-07-31

ICANN .IR Response, IANA Functions Minefield Revealed

Kudos to Philip Corwin for the best and most insightful analysis thus far of the ICANN .IR response (at link below, excerpts follow):

ICANN’s .IR Response Opens Legal Can of Worms - InternetCommerce.org: ".... At the top of page 18 (p. 28 of the Ben Haim vs. Islamic Republic of Iran pdf), the memo makes the argument that, under the Foreign Sovereign Immunities Act (FSIA), Plaintiffs must show that the “property in the United States of a foreign state” is “used for a commercial activity in the United States”. While .IR and the other ccTLDs at issue have no commercial contacts in the U.S., this is not true for .CO and other ccTLDs that have been repurposed as quasi-gTLDs and are being administered by entities located within the U.S..... At p.20 (p.30 of the pdf) of the memo, it is noted that ICANN’s authority is limited to recommending a transfer of the ccTLD to the Department of Commerce (DOC) under the current IANA contract; that under that contract ICANN may only recommend re-delegation for narrow technical and ministerial reasons; and that DOC retains the ultimate authority on the matter... However, this argument immediately raises the question of what the situation will be for ccTLDs will be after the IANA transition, when DOC no longer possesses final authority on TLD re-delegations and when there may be no contract at all in place governing the conduct of the IANA functions. Ironically, terminating the IANA contract between DOC and ICANN may place ccTLDs at greater risk of being re-delegated pursuant to the judicial orders of U.S. courts because this fallback contractual argument will no longer be available!... while ICANN has done its best to quash the writs of attachment for the ccTLDs in question, its arguments raise multiple other questions and issues...." (read more at the link above, emphasis added)

They never thought about any of this in Washington at NTIA or at ICANN before the rushed IANA announcement--and of course this is just par for the course for ICANN which really doesn't think through much of anything--the disastrous new gTLDs being a prime example!

more info on the .IR case:
https://www.icann.org/resources/press-material/release-2014-07-30-en.

https://www.icann.org/resources/pages/icann-various-2014-07-30-en.

For background reading (2002):  von Arx and Hagen, Volume IX Issue 1, Richmond Journal of Law & Technology: SOVEREIGN DOMAINS - A Declaration of Independence of ccTLDs from Foreign Control


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