ICANN and Human Rights


(I sent the following to Rod Beckstrom today)

Rod Beckstrom
Chief Executive Officer
Internet Corporation for Assigned. Names and Numbers
4676 Admiralty Way, Suite 330
Marina del Rey, CA

[Docket No. 110207099-1319-02]


Dear Rod:

It was good to see you in Singapore, if only fleetingly.

As you were present in San Francisco back on March 17th 2011, you are of course aware that during the Public Forum in San Francisco I made use of the community’s opportunity to ask questions on the main topics at each meeting directly to the Board and in front of the rest of the community, asking the Board about ICANN’s commitment (or not) to fundamental human rights. The full transcript is in the usual place that is available to you, and is reproduced at


As you are also aware, I still remain without the benefit of the several-times promised-by-you answer.

Certain current and former Board members have privately expressed their irritation with the form of my question. Notwithstanding this, and regardless of the form of my question (leading or otherwise), this particular question has to be one of the most remarkable as a result ICANN’s shamefully long silence in officially responding to it.

I also understand certain comments were recently made by one or more members of the Board about my question (in my absence) before the entire assembly of the Singapore ccNSO meeting — which is open to both non-members (as we then were) and to members — despite that I was unavoidably unable to be there.

Although this seems to me to be no more than mildly discourteous, I am looking forward to reading the transcript of that meeting to see if it can throw any light on your continued refusal to answer the question.

However I have been given to understand that scuttlebutt has it that the Board might now have decided that it requires further particulars before it would be prepared to answer my question.

I am puzzled mightily by this, if it is true.

If that were the case, surely you should have contacted me in writing some four months ago (my email address is well known to you) or in person.

Back in March I wished to have the answer to this legitimate query in order to be able to respond fully and coherently to the Department of Commerce‘s Notice of Inquiry regarding the IANA function.

I asked the question in March 2011, and I expected a timely answer.

I still expect an answer even though July is almost with us. I shall keep asking for an answer until the organisation which you lead has the courtesy to respond to it.

The ICANN Chairman, Mr Dengate-Thrush, rather optimistically suggested I might get one by the end of the day (i.e by 18th March 2011) in which I asked the question.

Whilst I did not share his well-intentioned optimism, I did expect ICANN to provide an answer to enable me to respond to the Department’s Notice of Inquiry before their 31st March 2011 deadline.

The more so, as I took the trouble to provide my enquiry both to ICANN’s Chairman, and to ICANN’s General Counsel not only in writing but also that same day.

Yet I was to be unsurprisingly disappointed when ICANN studiedly failed to answer the question, despite repeated reminders both to yourself, and to the Chairman, and I was therefore forced to complete my submission to the United States’ Department of Commerce without the benefit of the information asked for.

In that light, and in the subsequent failure to respond at all, it seems to me that ICANN intentionally failed to answer and that failure was motivated by a desire to avoid adverse comment in my submission to the Department.

If, in fact, this was so, (and I hope it was not), this transparent ploy unfortunately had the opposite effect you intended, as I was forced, in my submission to the Department to highlight ICANN’s failure to commit to basic human rights compliance.

A Further Notice of Inquiry has now been issued by the US Government with a deadline of July 29th 2011.

I trust your organisation will not employ the same tactic to inhibit input and comment in response to that?

As you are the figurehead of an international global organisation dealing with rights and obligations world-wide ICANN is in a unique position and you have a unique responsbility.

  • in policy-making ICANN acts as a Legislature for the Domain Name System.
  • in carrying out of the IANA function, ICANN appears to act, in some part, as the DNS Executive Branch, and
  • in making judgments on applications for new Top Level Domains, or changes to existing Top Level Domains, ICANN acts as a Judicial Branch.

In doing all of those things, it seems to me that the values of commonly accepted principles of fundamental rights of civilised nations must always be respected.

Why can you not bring yourself to agree with me on this? It seems self-evident to me.

And it also seems to me these fundamental principles should not apply only to public authorities (such as the GAC) but also to organisations such as ICANN itself, among other things by reason of the Guiding Principles for corporations that was presented to the United Nations’ Human Rights Council by Prof John G Ruggie of Harvard Law School.

See http://ec.europa.eu/enterprise/policies/sustainable-business/files/business-human-rights/guiding_principles_business_and_hhrr_en.pdf

and, in particular, the Foundational Principles, pp. 13 et seq.

This was also strongly underlined by Commissioner Kroes’ recent public statement on what matters on the Internet (see http://blogs.ec.europa.eu/neelie-kroes/i-propose-a-compact-for-the-internet ) , in particular that :-

“there’s been a lot of discussion recently about principles which do, or should, underpin the network. The G8 recently agreed a few – principles like openness, freedom, non-discrimination and respect for human rights. Other bodies, including the OECD itself, are also developing their own.”

Particularly in this time during the Arab Spring of 2011, where the Internet has become a powerful force for good, for the promotion of democracy and human rights (in Iran, Libya, Syria and elsewhere around the world) I believe it would have been far preferable better that ICANN should grasp the opportunity to proclaim a commitment to fundamental human rights, to set an example to others, and not to be cowering in the shadows as if I’d asked you whether you’d been scrumping apples.

I therefore respectfully request a written or emailed reply to my enquiry of 17th March 2011 by return email.

If you insist on maintaining your current apparent position of procrastination and obfuscation, please provide me with a thorough and reasoned explanation of your decision not to answer the question, the rationale thereof and the sources of data and information on which ICANN relied in making this decision, again by return, so I can assist the Board in its deliberations.

With all good wishes


What’s in a (domain) name?


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”.

Publicity sticker for Guernésiais language bro...
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.

Poker domain seizures in .COM

Greg Mueller Full Tilt Poker Pro
Image via Wikipedia

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.

Full Tilt Poker logo
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!




.LY prediction comes true

Coat of arms of Libya -- the
Image via Wikipedia

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’.

Libya scores pretty high in all those categories, and in view of the recent problems experienced by LETTER.LY I am not above a passing ‘I told y’all so’.

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.

Location map of the Channel Islands
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.


‘We like porn — no to .XXX’

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.

I still don’t get it.


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Public policy input to new domains

I’ve just found the time to read the GAC  communiqué from the ICANN-Brussels meeting.

It’s a mark of the maturity of the whole private-public sector co-operation that is ICANN that in comparison to some of the similar documents I read in 1999 that it is so reasonable in tone.

In particular, the GAC’s observations on the Rule of Law and existing rights (a subject I’ve written on elsewhere on this site in respect to the Cybercrime Recommendations) are entirely sensible to include. While taking the time necessary to get things right is inconvenient, and costly to those who are investing time and money in new business models, NOT getting it right will be incredibly more costly and inconvenient.

Registrars and registries (existing and potential) must welcome public policy input in this fashion, since by working together (in the original spirit of the Internet) something much greater will be achieved than either sector (private industry on the one hand and Government on the other) could acheive alone.

Next week’s ICANN meeting promises to be quite interesting!


ICANN Law Enforcement Recommendations

Today I’ve been presenting at the Cybercrime forum which was organised jointly by the US and the EU (the FBI and European Commission, Directorate-General Home Affairs).

European flags flying in front of the Berlaymont
Image by TPCOM via Flickr

I am heartened to see a spirit of cooperation between registries, registrars and police and other law enforcement agencies despite different approaches. We all want to see bad guys discouraged from doing bad things, and caught when they do.

I’ve also written a response to the ICANN 2009 Law Enforcement Recommendations, which was published on CircleID yesterday.

A properly formatted and typo-corrected article is available for download here.


(Thanks to Dr Lisse for the typesetting assistance)

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