COICA

I’ve signed on to a ‘Professors’ Letter’ regarding the Combatting Online Infringements and Counterfeits Bill (COICA), legislation about to be debated in the US Congress. This post is a brief explanation of my approach to this issue and why I signed the letter. You can read its full text here.

The first point is that I am concerned about the impact on the legislation on the regulation of the Internet. The approach proposed in the Bill is very different to that adopted in the US, or indeed in many other jurisdictions, and it’s not appropriate for this major leap to be made without proper scrutiny, if at all. The Bill would allow actions to be brought against ‘domain names’ (at least), including both registrars and registries, where a website is ‘dedicated to infringing activities’, i.e. alleged copyright and trademark violations. This is a complete change to the purpose and operation of the domain name system. If it wasn’t so serious, it would be amusing after years of the US government arguing against over-regulation and international control of ICANN. The method of doing this is messy too, as domain names are very frequently shared between multiple uses, meaning that one action would unavoidably prevent access to unrelated materials. We’ve already seen some actions against domain names in the US – and indeed, the practice is growing in the UK, even with quite informal approaches as in the Fitwatch issue highlighted this week. This legislation would take this and go many steps beyond, all at once.

Of course, as the letter points out, websites from around the world use registrars or registries in the US – particularly for generic top-level domains like .com. Although there is a limitation to situations where the site ‘conducts business directed’ to the US, we know well that the threshold for direction can be quite easy – and remind me of this the next time a legislature in the US passes a ‘Libel Terrorism’ statute. In practice, this statute will affect websites and service providers the world over, and so it’s important that a genuinely international response be heard. I often receive requests or circulars about amicus briefs, joint letters and so on, but while many are interesting, I’m reluctant to intervene in a situation of US law where I don’t know enough details and the influence of foreign scholars is meaningless or indeed counterproductive. This is my second point: a unilateral step of this nature will affect Internet activities far beyond the US. And so, the letter includes signatures from UK-based scholars, including Konstantinos Komaitis at Strathclyde, and other jurisdictions too, such as Kim Wetherall at Queensland and Cedric Manara at EDHEC in France.

My final point is the quality of the argument and why this type of response is so desperately needed. The letter has been drafted by David Post, a professor at Temple University in Philadelphia, known to many readers as one of the first ‘cyberlaw’ scholars and – more recently – author of the fabulous In Search Of Jefferson’s Moose. There are situations where I would depart from Post’s published views on this question or that, and I tend to set a high bar before I put my name to a letter I support part but not all of, but in this case the letter sets out a straightforward, persuasive, well-researched, and very reasonable explanation as to the very serious problems with COICA, and I am just as concerned about the problem as he is. I hope that the letter will be taken seriously – it might not be obvious to some, but the range of views on Internet law covered by the signatories is very broad (i.e. it’s not ‘just’ a particular group of cyberlibertarians, far from it), and this issue deserves far more attention than it is getting.

Now that I’ve tried to talk to you and make you understand

I’m very pleased to note the publication of my article on ICANN and its struggles with internationalised domain names and top-level domains.  It has been in the works for quite some time, and includes what I think is a fairly novel approach to the relationship between law, language and technology in the ‘offline’ world.  Please do download it and contribute your own comments!  It appears to be available without a login through ‘advance access’, but will ultimately appear in the print and electronic versions of OUP’s International Journal of Law and Information Technology.

More than words: the introduction of internationalised domain names and the reform of generic top-level domains at ICANN
Download the PDF here

The Internet Corporation for Assigned Names and Numbers (ICANN) is assessed in this paper as having a special role in the development of the law of new media, recognising both the importance of its management of the global domain name system and how questions of institutional legitimacy have highlighted the lack of agreement on the role of law in the governance of the global Internet. In order to underline how ICANN’s work relates to the regulation of the Internet and new media in particular., two particular issues are considered, both of which have been the subject of major announcements in 2009: (1) the facilitation of Internet multilingualism through internationalised domain names (IDNs) and (2) an attempt to expand the generic top-level domain (gTLD) system including prospect of dedicated gTLDs such as .xxx. In the case of internationalisation, it is argued that the question of internationalised domain names is best understood through its relation to historical processes of engagement between law, language and technology..

I didn’t put in the original set of acknowledgements (after taking them out for peer review), so thanks to the National Archives of Ireland, Trinity College Library Dublin, Dr. Eoin O’Dell and those who heard very early versions at the Dublin Legal Workshop and the International Academy of Linguistic Law.

whatarightmess.gov.uk

Supreme Court emblem via justice.gov.ukA footnote, of sorts, to yesterday’s post on how to find up-to-date legislation in the UK, is how we can find the (soon-to-be) highest court! Of course, I’m talking about the Supreme Court of the United Kingdom, which will take over the judicial functions of the House of Lords (and some of the work of the Judicial Committee of the Privy Council) as of this October. I was greatly amused by this story on the twin dilemnas of ‘which address’ and ‘which web address’. The Supreme Court has many things to take care of before opening its doors (such as how much to charge), and its launch is of great interest to me and many others, but this point, while utterly trivial, is fun.

Setting aside the postal problem for a moment (though do feel free to comment on that – perhaps they should have a word with Liam Lawlor), I’m quite puzzled at why some wise soul has decided that:

http://www.supremecourt.gsi.gov.uk

is the best web address. If total flexibility was on offer, then I think either http://www.supremecourt.uk or http://www.supremecourt.courts.uk would be sensible. However, while such would be a neat recognition of the separation of powers (e.g. parliament.gov.uk would certainly cause some upset to defenders of Parliament’s role!), such lofty legal concepts are not at the top of the list of priorities of those who manage the .uk domain space (Nominet), and – while there’s a long-standing exception for registrations like parliament.uk – the general policy is that a new site must go into one of the established second-level systems like co.uk or gov.uk. That being said, if .gov.uk is required, it seems the height of foolishness to add the further detail of .gsi.gov.uk. I appreciate that in the world of Google, domain name recognition is not the only way to a site, but I see little or no advantage to the GSI approach and clear disadvantages, in that the name will not be ‘deduced’ easily or indeed remembered by those with bare familiarity with it. Hopefully sense will prevail. The newly-relaunched website of the Queen is at royal.gov.uk. Presumably one has no truck with civil servants pushing the GSI gospel….

Covered by the Telegraph here (with a much older article also here) and highlighted by LawPundit and Charon QC. I think the story might be a bit out of date, though, as gsi.gov.uk is no longer in use, and the 2007 guidelines for .gov.uk websites does not seem to require it, and judiciary.gov.uk works quite well, and there don’t appear to be any gsi.gov.uk websites any more (there are some email addresses) – though as the original story was in 2005, it may have been true at the time, and the recent update just pulled it from the archive. It would be truly bizarre if an effectively retired policy was brought back into action for this website only.

I don’t know what stage this important debate is at, then, but the Ministry of Justice’s website on preparations for the Court is indeed live, and can be accessed right here.

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One small step for .ie – but will there be a giant leap?

Another Irish post. It’s a long one, and I’m slightly guilty of burying the lead. Apologies.

A long process has (almost) come to an end, with yesterday’s announcement by Irish communications regulator ComReg of its findings in relation to the regulation of .ie. Like many, I wondered if it had been forgotten about – the 2008 consultation closed some time ago..but like media pluralism, its time has come. Or something.

ComReg has announced (press release | full report) that it will, by regulation, appoint the incumbent IE Domain Registry (IEDR) as the body for domain registration in Ireland; for 12 months but with an expected extension. An application will be made (to ICANN) to designate the Dept. of Communications, Energy and National Resources as responsible for the .ie namespace. We haven’t seen sight of the regulations yet, and ComReg’s power to make the regulations already exists, so there’s still more work to be done. The various consultation responses have also been published (giving me some relief – I had to make an FOI request to get the fruits of a prior (DCMNR) consultation), including some extremely good contributions (read them all here) by Antoin O Lachtnain and ICANN board member Dennis Jennings. But to figure out what’s going on, we need to go back, back (…insert misty dreamlike transition slide…)

The story starts, or at least gets going, with section 31 of the Electronic Commerce Act 2000. Although most of the Act dealt with a bundle of obvious e-commerce issues, this section always sat a little awkwardly. It gave the relevant Minister, then the Minister for Public Enterprise (but now the Minister for Communications, Energy & Natural Resources), the power to regulate .ie. At the time, there was a genuine doubt as to the role of governments in the regulation of country-code top level domains (ccTLDs), and the IE Domain Registry (IEDR) had been around for some time, originally fairly informally out of University College Dublin (UCD) but emerging into a more formal, independent legal structure (though UCD is still, nominally, still the responsible body from an international (ICANN/IANA) point of view).

Fast-forward to the middle of the present decade, and the Minister’s powers have not been exercised, despite various bits of criticism of IEDR and indeed a series of announcements by Government that something was about to happen. The pre-legislative process for the Electronic Communications (Miscellaneous) Bill 2005 did suggest that these powers would be transferred to ComReg, and indeed ended up in what became the Communications Regulation (Amendment) Bill (and then Act) 2007. There was some confusion at the time (I attempted to unravel it all here), but not much changed as a matter of law, other than the reassignment of the theoretical possibility of doing something. However, informally there was a good deal of chatter that ComReg would be more likely to use its powers than the Minister; the official line was that ComReg was better placed to carry out the task than central government. I have a big bundle of FOI documents on the process leading up to the 2007 Act, awaiting time to write about it properly.

While we’ve been waiting for the outcome of Comreg’s consultation, criticism of IEDR has continued, such as Michele Neylon’s posts, Has the time come to redelegate IE namespace? I’m quite surprised at how IEDR in its own submission to ComReg still opposes the role of ComReg, despite the legislation (that Comreg has no power to amend): lots of concern for its property rights, and even arguing that it is ‘ironic’ that ComReg “is seeking to regulate” its activities while not regulating .com and .net (“the source of spam, identity theft, credit card fraud and unsavoury practices such as cyber crime, warehousing of Internet addresses etc“). The mind boggles.

It’s quite hard to get a picture of what’s happening, as ComReg still refuses to release its own report on IEDR, and finds in a whole load of places that it is necessary for various unnamed recommendations to be dealt with. Indeed, the key finding: “ComReg has satisfied itself through its external review and due diligence examinations that IEDR is financially and technically sound and operates under an acceptable code of governance” is effectively meaningless to the citizen observer, as neither the external review nor due diligence examination is available. In any other context, this would be a joke. While there are of course reasons to redact certain elements, the presumption should always in favour of publication to the maximum extent possible, particularly when powers that originate in specific legislation are being exercised.

That said, there’s lots to think about here. The ‘managed’ status will continue (.ie is restricted through various rules, such as requiring Irish presence, specific requirements regarding personal and company names, etc), fees won’t be set by ComReg, escrow (a backup in case IEDR disappears in a puff of smoke) will be required, and there’s more in the report for all of us to digest this week. Nothing clear on the problem of supposedly inappropriate names, though. And I also raise an eyebrow at asking the Department to be the body receiving the ICANN/IANA delegation, given that the legislation took away most of the Department’s functions in favour of Comreg – it’s a further split with one body ‘in charge’ (DCENR), another body making the regulations (ComReg) and another body (IEDR or any future replacement) doing the work. It might just be crazy enough to work.

And we’re going to see an Irish version of the Nominet Policy Advisory Body, called the Policy Advisory Committee. Probably fairly toothless, but progress nonetheless.

Other coverage from ENN (in brief) and that man again, Michele Neylon (first impressions). More as I find them.