Comments (13)

1. John Berryhill says:

   September 20, 2017 at 5:28 pm

   “puntCAT, which had already alerted ICANN to what it characterized as the sweeping “censorship” of .cat”
   The point of “alerting ICANN” being what? First off, the .cat TLD is chartered for the explicit purpose of censorship, since all content must be in Catalan or relate to Catalonia.
   Secondly, the .cat registry agreement with ICANN specifically provides:
   “7.14 Court Orders. ICANN will respect any order from a court of competent jurisdiction, including any orders from any jurisdiction where the consent or non-objection of the government was a requirement for the delegation of the TLD.”
   So the analysis from ICANN’s point of view reduces to was the court issuing the injunction from a jurisdiction from which consent was required?
   Yes, it was. From the IANA delegation report:
   “Accordingly, ICANN requested that puntCAT obtain letters from the Government of Spain and the Government of Andorra indicating whether they agreed with the designation of an sTLD for the ‘Catalan Linguistic and Cultural Community.'”
   Apparently, PuntCat either does not understand the registry agreement it made with ICANN, or expects ICANN not to understand it.
   How do these circumstances differ from the routine implementation of court orders by any other registry, other than the unusual fact here that the registry apparently does not want to implement a court order from a jurisdiction to which the registry specifically agreed with ICANN they would implement?
   If the answer to that question relies on anything other than the contracts and the relevant legal process, then it is merely a political opinion.

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   • Kevin Murphy says:

     September 20, 2017 at 5:35 pm

     My assumption is that if this can be put on the menu for ICANN 60, there’s at least a slim chance the Spanish government could get flamed in public in an international forum.
     As for what ICANN Org will/can do? I’m with you. Sweet FA.

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     • John Berryhill says:

       September 20, 2017 at 7:37 pm

       If Verisign refused a US government law enforcement subpoena or seizure order, then US Marshals would be in Herndon doing the same thing.
       ICANN required PuntCat to get the Spanish government to sign off on the TLD, and ICANN further required PuntCat to implement orders of the relevant Spanish authority.
       That’s the bed ICANN made, and everyone else has to sleep in it.

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   • Roberto Gaetano says:

     September 20, 2017 at 7:43 pm

     The problem with lawyers is that they believe that all human actions are done in view of a legal action.
     There is life outside the courts, and I am personally in full agreement with puntCAT’s action to put this on record via communication to ICANN. I also notice that, unless I am mistaken, they are not asking ICANN to take any action, they just “alerting” it.
     That ICANN, as an organization, will do nothing is something that we all know. Also, all this fandango is going on before the referendum, and Abu Dhabi will take place afterwards, so what will happen there will pretty much depend from the result of the referendum.

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     • John Berryhill says:

       September 20, 2017 at 10:18 pm

       “There is life outside the courts”
       Indeed there is. Quite a few disputes are still resolved with fists, sticks, and other weapons of choice.
       Registrars and registries are required to implement court orders and law enforcement warrants every day of every week. PuntCat received one with which they did not agree. The time for PuntCat to disagree with Spanish jurisdiction over .cat TLD operations was when they signed the agreement to do so during the delegation process.
       I can’t recall anyone feeling the need to “alert ICANN” when, for example, the US government enforced its laws concerning Cuba in relation to a number of domain names registered via US registrars which were ordered to be taken down. Whether those laws are “fair” or “just” or “good” or whatever, is not one to be resolved by the ICANN chattering society, but by the processes relevant to how those laws are made in the jurisdictions where those laws are in effect.
       This is an effort to draw a wider international community into “taking sides” in a political dispute in which that wider international community – aside from certain elements with strategic objectives of their own – has no place. The ICANN community should not take the bait.

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       • Kevin Murphy says:

         September 20, 2017 at 10:40 pm

         There are some instances where court orders are arguably wrong, and which tech companies can fight them on moral, ethical or technical grounds.
         Wasn’t there recently a case where one of the major mobile phone OS companies in the US fought against a court order that would have made it break encryption for its entire customer base?
         Is that not at least a *little bit* similar to this?

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         • John Berryhill says:

           September 20, 2017 at 11:59 pm

           No, it’s not at all similar. Comparing procedures across systems is usually a hopeless exercise, bur utilizing available legal process to challenge a subpoena is not the same thing as simply deciding not to comply with a court order. In the US, there are various legal mechanisms to challenge an order or a subpoena. If there are no such mechanisms available in Spain, then running a dicey operation under a TLD subject to Spanish jurisdiction is a poor choice.

         • Kevin Murphy says:

           September 21, 2017 at 12:24 am

           Sorry John. I accidentally started talking about what might be right rather than what might be legal. Forgive me.

         • IBS - Marc says:

           September 21, 2017 at 3:55 pm

           On a somewhat interesting side note, our registrar received a takedown request from the UK govt for a site advocating direct action to stop the culling of badgers. We like badgers, I wonder where it will end up! Much respect to the PuntCat for respecting their base rather than the “law”.

       • Roberto Gaetano says:

         September 21, 2017 at 12:05 pm

         John,
         I am afraid you miss my point.
         I believe that your legal analysis is correct, I am not arguing about this. I am just saying that informing ICANN was a good thing to do.
         ICANN, of course, will do nothing because we all agree that this is beyond its power.
         This said, I personally think that the approach that the Spanish government is taking is outrageous – although legally sound. I might also add that if all things were done according to what is legal the United States will still be a British colony. I see not much difference with Catalunya – but this is just my personal opinion. And, to be clear, I am not at all advocating an action by ICANN, I am just saying that there was no reason for not alerting ICANN, even knowing that there will be no action from their part.
         As for us engineers is hard to understand that not everything can be reconnected to a technical problem, for lawyers is hard to accept that one can discuss an issue regardless the legal implications.

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         • John Berryhill says:

           September 21, 2017 at 7:01 pm

           “I might also add that if all things were done according to what is legal the United States will still be a British colony. I see not much difference with Catalunya”
           Well, yes, as I noted above, violence is certainly a widely accepted mechanism of resolving disputes. The weapons and techniques have certainly improved in 250 years, to the great credit of engineers. (incidentally, as long as we are going to engage in personal characterizations based on generalizations about professions, I was an engineer long before becoming a lawyer). In the US, citizens are guaranteed a right to a lawyer, and also guaranteed a right to guns. So, we get to choose either way.
           ICANN expressly wrote a Spanish veto into the .cat contract. For some reason, there are those who want to suggest that I somehow support or agree with the action of the Spanish government here. I am simply pointing out that some sort of appeal to ICANN seems misplaced, in view of the fact that ICANN requires Spain’s continuing consent.
           I understand that a vote was held on Venetian independence from Italy some months ago as well, but that they did not secure a TLD from ICANN first, so I guess ICANN won’t be called upon to take a position in that one. Perhaps the Italians will agree on which side of the Spanish conflict they want to bomb this time around.

2. Richard Funden says:

   September 21, 2017 at 7:54 am

   ICANN should stay the heck away from this. No GNSO consultation, no board deliberation not even GAC involvement of this issue.
   This is a sovereign country enforcing its laws against one of its subjects. You may disagree with the laws, you may contest the action taken in court, but you may not involve ICANN in this matter, as ICANN has no role to play (other than potentially terminating the registry agreement for violations of applicable laws).

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3. Ludovic Durieux says:

   September 22, 2017 at 6:54 am

   In some countires, the laws prohbits women to drive and vote in some countries.
   Let’s not fight this.
   In some countries, the laws allows white people to have more rights than black people.
   Let’s not fight this.
   Most of the things we all have here are because of fights and people contesting things.

   Reply