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Brexit probably no big deal for UK domain owners

Kevin Murphy, June 29, 2016, Domain Policy

The UK may have suffered the most serious self-inflicted wound since the deep-fried Mars bar when it voted to leave the European Union last week, but it seems unlikely to have a huge effect on domain name registrants.

Most EU ccTLD registries do not require registrants to be based in the EU, and those that do have shown themselves flexible.

I surveyed the web sites of all 29 EU ccTLD registries, scouring FAQs and policy documents, to see if leaving the EU would cause conflicts for UK registrants.

All but one of these sites have comprehensive English versions available, which made the process very simple indeed.

It turns out the majority of the EU’s member states either have no geographic restrictions whatsoever or restrict registrations to only people and companies within their own nations.

I found five — six if you count .eu itself — that have policies that refer directly to a European Union presence in their rules and regulations.

  • .fr (France) is restricted to residents of the EU and Iceland, Liechtenstein, Norway and Switzerland.
  • .it (Italy) allows registrations from anyone in the European Economic Area, the Vatican, San Marino or Switzerland.
  • .nl (Netherlands) allows regs from anywhere, but registry manager SIDN says may attach “additional conditions to legal and/or natural persons based outside the European Union”.
  • .hu (Hungary) requires EU residency for individuals and companies wishing to register directly at the second level. There are no such restrictions at the third level.
  • .bg (Bulgaria) requires a local Bulgarian presence for non-EU registrants.
  • .eu (European Union) requires presence in the European Union, Norway, Iceland or Liechtenstein.

As you can see, even those with EU presence requirements are pretty flexible when it comes to bolting on additional eligible countries.

So-called Brexit — British exit from the EU — is unlikely to happen for two years or more, if it happens at all.

The thinking right now is that if/when the UK does finally formally leave it is likely to either become a member of the European Economic Area or have otherwise have negotiated a relationship with the EU not unlike Norway’s.

This would presumably make it fairly easy for ccTLD registries to plug the UK into their existing policies.

Any registry with a substantial number of existing UK registrants would of course have financial exposure to a Brexit, a likely incentive to modify their rules accordingly.

So for regular domain owners, Brexit is probably no big deal.

Whether the move would an impact on trademark holders or registrars are rather more complex matters that I have not looked at yet.

ICANN Ombudsman let go as role comes up for review

Kevin Murphy, June 29, 2016, Domain Policy

ICANN’s Ombudsman, Chris LaHatte, has been told his services are no longer needed.

His current contract expires July 27, but he’s been informed that it will not be renewed.

No reason has been given for the move.

Herb Waye, who took the role on an interim basis in 2011 after the departure of former Ombusdman Frank Fowlie, will step in again while ICANN looks for a permanent replacement.

LaHatte will continue on as an adviser during the transition.

The decision to replace LaHatte comes as the ICANN community begins on so-called Work Stream 2 of the IANA transition process, which includes a review of the role of the Ombudsman in ICANN’s power structure.

The Ombudsman’s job is currently to adjudicate on matters of fairness in ICANN’s activities.

He or she reports to the board and any advice given is non-binding.

Judge throws out DotConnectAfrica’s case against ZACR

Kevin Murphy, June 15, 2016, Domain Policy

South African registry ZACR did not engage in a fraudulent conspiracy with ICANN to get its .africa gTLD application approved, a court ruled yesterday.

The California judge in the case of DotConnectAfrica vs ICANN and ZACR threw out all of DCA’s claims against ZACR, approving ZACR’s motion to dismiss.

The judge said DCA had failed to make claims for fraud, contract intereference and unfair competition.

He also threw out DCA’s demand for ZACR’s .africa Registry Agreement to be scrapped.

The case is not over, however.

DCA’s claims against ICANN still stand and ICANN, perhaps regrettably, withdrew its own motion to dismiss the case weeks ago. The case still looks like heading to trial.

DCA reckons ICANN, ZACR, independent evaluator InterConnect Communications, and the Governmental Advisory Committee improperly ganged up on it, in breach of its new gTLD application contract.

The judge has already ruled that the litigation waiver DCA signed when it applied for .dotafrica .africa may be unenforceable.

He also based a decision to give DCA’s claims the benefit of the doubt on a huge misunderstanding of the facts, which he has yet to address publicly.

You can read the judge’s latest order here (pdf).

Under an injunction DCA won, .africa cannot be delegated until the case is resolved.

NTIA gives nod to IANA transition

Kevin Murphy, June 9, 2016, Domain Policy

The US National Telecommunications and Information Administration has formally thrown its weight behind the community-led proposal that would remove the US government, itself in effect, from DNS root oversight.

Assistant secretary Larry Strickling held a press conference this afternoon to confirm the hardly surprising development, but dodged questions about a Republican move to scupper the plan in Congress.

The IANA transition plan, which was developed by the ICANN community over about two years, meets all the criteria NTIA had set out in its surprise 2014 announcement, Strickling confirmed.

Namely, NTIA said in a press release that the the plan would:

  • Support and enhance the multistakeholder model;
  • Maintain the security, stability, and resiliency of the Internet DNS;
  • Meet the needs and expectations of the global customers and partners of the IANA services; and
  • Maintain the openness of the Internet.

Probably more importantly, NTIA agrees with everyone else that the plan does not replace NTIA’s role with more government meddling.

US Sen. Ted Cruz and Rep. Sean Duffy see things differently. They yesterday introduced the Protecting Internet Freedom Act, which would stop the transition going ahead.

Strickling said that NTIA has been talking to Congress members about the transition, but declined to “speculate” about the new bill’s likelihood of success.

“We’ve been up on the Hill doing briefings and will continue to do so with any member that wants to talk to us,” he said.

Currently, NTIA is forbidden by law from spending any money on the transition, but that prohibition expires (unless it is renewed) at the end of the current federal budget cycle.

The plan is to carry out the transition after that, Strickling said.

The current IANA contract expires September 30. It may be extended, depending on how quickly ICANN and Verisign proceed on their implementation tasks.

Cruz-Duffy bill would put brakes on IANA transition

Kevin Murphy, June 9, 2016, Domain Policy

America’s continuing unique oversight role in the DNS root management system, fuck yeah!

That’s basically the takeaway from a new bit of proposed US legislation, put forward by Sen. Ted Cruz and Rep. Sean Duffy in both houses of Congress yesterday.

The two Republican Congressmen have proposed the inappropriately named Protecting Internet Freedom Act, which is specifically designed to scupper the IANA transition at the eleventh hour.

PIFA would prevent the National Telecommunications and Information Administration from backing away from its role in the DNS root management triumvirate.

It’s supported, ironically, by a bunch of small-government right-wing think tanks and lobby groups.

If the bill is enacted, NTIA would need a further act of Congress in order to cancel or allow to expire its current IANA functions contract with ICANN

The bill (pdf) reads:

The Assistant Secretary of Commerce for Communications and Information may not allow the responsibility of the National Telecommunications and Information Administration with respect to the Internet domain name system functions, including responsibility with respect to the authoritative root zone file and the performance of the Internet Assigned Numbers Authority functions, to terminate, lapse, expire, be cancelled, or otherwise cease to be in effect unless a Federal statute enacted after the date of enactment of this Act expressly grants the Assistant Secretary such authority.

The bill also seeks to ensure that the US government has “sole ownership” of the .gov and .mil TLDs “in perpetuity”.

These ownership rights are not and have never been in question; the inclusion of this language in the bill looks like a cheap attempt to stir up Congresspeople’s basest jingoistic tendencies.

A Cruz press release said the IANA transition “will allow over 160 foreign governments to have increased influence over the management and operation of the Internet.”

Duffy added:

President Obama wants to hand over the keys to the Internet to countries like China and Russia. This is reckless and absurd. The governments of these countries do not value free speech. In fact, they censor the Internet and routinely repress and punish political dissidents. They cannot be trusted with something as fundamental to free speech as a free and open Internet.

It’s unfiltered scaremongering.

No country — not China, Russia, the US nor any other government — gets increased powers under the IANA transition proposal, which was painstakingly crafted by, and is now supported by, pretty much all community stakeholders over two years.

In fact, governmental power is significantly curtailed under the proposal.

Post-transition, the Governmental Advisory Committee’s current voting practice, which essentially requires unanimity, would be enshrined in ICANN’s bylaws.

If the GAC came to ICANN with advice that did not have consensus — that is, some governments formally objected to it — ICANN would be able to reject it much more easily than it can today.

The one area where the GAC does get a new role is in the so-called “Empowered Community”, a new concept that will enter the ICANN bylaws post-transition.

The Empowered Community would be a non-profit legal entity formed by the ICANN community in the exceptional event that the ICANN board goes rogue and starts doing really egregious stuff that nobody wants — for example, introducing Draconian policy regulating freedom of speech.

The EC would have the power to kick out the ICANN board members of its choice, reject the ICANN budget, throw out proposed bylaws amendments and so on. As far as ICANN is concerned, the EC would be God.

Its members, or “Decisional Participants” would be the GNSO, the ccNSO, the ALAC, the ASO and the GAC.

The fact that the GAC has a seat at the EC table is the straw that Cruz, Duffy and co grasp at when they talk about governments getting increased power in a post-transition ICANN.

But the GAC’s voice is equal to those of the other four participants, and the GAC is not allowed a vote on matters stemming from ICANN’s implementation of consensus GAC advice.

In other words, the only way Cruz’s boogeymen governments would ever get to push through a censorship policy would be if that policy was also supported by all the other governments or by the majority of the diverse, multi-stakeholder ICANN community.

The arguments of Cruz and Duffy are red herrings, in other words.

Not only that, but the US record on attempted censorship of the DNS root is hardly exemplary.

While it’s generally been quietly hands-off for the majority of the time ICANN has had its hand on the rudder, there was a notable exception.

The Bush-era NTIA, following a letter-writing campaign by the religious right — Bible-thumping Cruz’s base — exerted pressure on ICANN to reject the proposed porn-only .xxx gTLD.

So who’s the real threat here, Red China or Ted Cruz, the man who tried to ban the sale of dildos in Texas?

The Protecting Internet Freedom Act is obviously still just a bill, but Republicans still control both houses of Congress so it’s not impossible that the tens of thousands of hours the ICANN community has put into the IANA transition could be sacrificed on the altar of embarrassing the President, who is probably Kenyan anyway.