Double whammy: California courts knock back DCA and Trump

Thursday, 9th February was an interesting day in court in California.

The Appeals Court for the Ninth Circuit DENIED President Trump’s appeal to lift the temporary restraining order suspending his ban on the nationals of seven, majority Muslim, nations.

In domain industry news, the Superior Court for the County of Los Angeles DENIED DotConnectAfrica’s renewed application for a temporary restraining order against ICANN proceeding with the remaining technical and administrative steps towards the delegation of the .AFRICA top-level domain to ZACR.

This means there’s nothing stopping .AFRICA from appearing in the root zone any time soon.

Believe it or not, DCA still have an active court case against ICANN over .AFRICA but the landscape is now changed considerably, and it’s now much less likely we will see an upset.

You can download the full judgment at

That other judgment may be found at

2017 to be the year of .AFRICA

On the 22nd of December, just as the entire domain name world was preparing to celebrate Christmas,  the Honorable Judge F Rodriquez  refused the application by the Dot Connect Africa Trust  for a preliminary injunction against the delegation of .AFRICA.

The decision notice is elegant and simple in its rationale.

“The Plaintiff’s motion for the imposition of a Preliminary Injuction is DENIED, based on the reasoning expressed in the oral and written arguments of defense counsel”.

Or in other words the court accepted the arguments of ICANN’s legal team in their entirety, and rejected all of DCA’s arguments.

Now, this doesn’t mean that DCA has lost the substantive case about its application.

But it does rather make the substantive case mostly irrelevant.

An injunction (whether temporary, preliminary or permanent) is an equitable remedy. Lawyers describe equitable remedies (as contrasted to legal remedies) as being discretionary.

This does not mean courts will agree or refuse them on a whim, of course. There is a settled body of  equitable principles which guides how such remedies may be granted.

One such principle is that relief will not be granted if damages would be a suitable legal remedy in the main case.

Clearly  if (and it’s a very big if) ICANN had done something wrong against DCA, DCA could claim damages — possibly large damages– for its losses.   But it never had a ‘right’ to be awarded the domain name. ICANN is not a government organisation, so there is no suggestion that its decisions can be judicially reviewed, in the way that (say) the award of a rail franchise by the Department of Transport could be.

ICANN will open for business today (3rd January) at around 4 or 5 o’clock European time.

In the light of the lifting of the temporary injunction, I would be very surprised if within the next few days that .AFRICA did not proceed to delegation in accordance with the contract already signed between ICANN and ZACR.

Congress prepares for legal action over ICANN transition

As the end of September approaches, and the planned handover of ultimate responsibility for internet naming by the US Government, it has emerged that Congress is making preparations to take legal action to halt the transition.

House Resolution 853, introduced by Congressman Mike Kelly on the 8th September will authorise the Speaker of the House to initiate civil action (or intervene in an existing action)regard  “compliance of the executive branch with the provision of law prohibiting relinquishment of the responsibility of the National Telecommunications and Information Administration with respect to Internet domain name system functions.”

This development doesn’t make certain that there will be legal action against the Department of Congress, but it makes it more likely.

We will find out between now and the end of the month if this is just sabre-rattling or if the long-brewing (principally Republican) objections to the ICANN transition will boil over into an out-and-out fight between the legislative and executive branches, in the sunset weeks of the Obama administration.

The full text of the Resolution may be found at :-


Senators up the ante over spending on ICANN transition

Republican senators, including former Presidential hopeful Ted Cruz, just upped the ante in their bid to stall or prevent the Obama administration’s plan to remove ultimate US Government oversight of ICANN.

In another letter to Assistant Secretary Larry Strickling they allege that the US Government broke the law when it gave a contract to the Berkman Center (sic) for the evaluation of the transition plan.

Cruz and several other Senators write: ‘We believe that NTIA has violated that prohibition by funding projects whose only conceivable purpose is to facilitate the transition . . . ‘

Federal law prevents NTIA spending money on the transition under a rider in the appropriation that funds the Department of Commerce and NTIA.

Strickling has become a not unfamiliar face at ICANN meetings; another meeting is due to take place in Helsinki next week.

It’s arguable that the routine travel expenses of NTIA employees to such meetings come out of general funds, and in pursuance of NTIA’s general oversight duties.

It’s much harder to argue that a sole-source contract, to an external organisation whose whole brief is to assess the transition proposal, is expenditure that’s unrelated to the transition . . .

The full letter is here and Cruz’s commentary can be found here.

It will be interesting to see what comes of this complaint. It probably doesn’t matter whether NTIA broke the law or not here.

What matters is, that if so, what Rafael (who is receiving up-to-date, and accurate briefings on the transition) will do about it, other than write aggrieved letters, no matter how eminent the signatories. So far, that’s not much. But of course, he’s been somewhat distracted by a different project until recently.

One thing I’ve learned about dealing with ICANN  senior staff over nearly 20 years, is that they have an unshakeable belief in their correctness of whatever decisions they are involved in, and simply motor on, irrespective of any expressed concerns.

It remains to be seen whether Assistant Secretary Strickling (who is due to leave office at the end of the Obama administration) takes a similar approach.

Live from the Senate Hearing

Senate Hearing
Senate Hearing


The Senate Commitee on Commerce , Science and Transportation is holding a hearing into the proposed transition of ICANN away from US control

Domain Pulp is fortunate to be able to report live from the hearing.


1017 Opening Statements
1020 Sen. Rubio arrives.
1050 Sen. Rubio leaves.
1059 Heritage Foundation arguing for a 2 year contract extension. Steve Delbiano arguing against.
1100 Concerns about the future of .GOV and .MIL .
1100 ICANN to be forced to sign contracts regarding these TLDs.
1100 Andrew Sullivan thinks deadlines can be met. Makes case for NTIA getting out of the way, and argues that the community should be supported.
1111 Edward Snowden mentioned by Delbianco.
1113 Question raised as to whether ICANN is representative of small businesses.
1115 Discussion about fragmentation.
1115 More questions about the future of .MIL and .GOV
1121 McKaskill questions whether 2 year delay would cause damage.
1122 Concerns over ICANN’s accountability.
1125 Accountability is being built into the by-laws
1126 “If it aint broke, don’t fix it”
1127 “Our decision is not going to affect the position of China and Russia one iota
1128 Sen. Rubio returns to the committee room
1129 Sen Johnson takes issue – warns of ‘the road ahead’
1131 Andrew Sullivan warns about the delays caused by NTIA approval. Cites .TR DDOS attacks.
1134 Sen Rubio doesn’t buy that the accelerated timescale is necessary. Says China will do what it wants to.
1135 Senator Rubio will be published call for provisional ‘test drive’ of the new arrangements later today, and will be inviting other Senators to sign up to it. This is very close to what was recommended by The Heritage Foundation.
1137 Rubio wants a fundamental bylaw keeping ICANN in California.
1138 Delbianco says that the proposed bylaws does that.
1140 Delbianco warns signal to Russia and China that any delay means US will never want to give it up.
1141 Rubio: not a question of never, but doing it the right way.
1142 Delbianco:  ICANN cannot do anything abouy Chinese censorship
1143 Johnson: How does transition advance the interests of the US?
1145 Delbianco: Nothing in transition affects China.
1147 Johnson: Won’t ITU, UN efforts to take over continue no matter what we do?
1148 Won’t this whet their appetite for more action?
1150 Sen. Rubio leaves.
1150: Markey: US has responsibility to lead by example. Important that we avoid sending the wrong signals to the international community. How do we secure an open and free internet at home and abroad?
1151: Sullivan: Internet works because it is voluntary.
1152: Markey: What message would it send if Congress called for a vote.
1152: Sullivan: it would send the wrong signals not to foreign governments but also to the network operators. Really worried, and it would be bad for business. A real risk. It would be bad for human rights – it would undermine trust, and there would be competing alternatives.
1155: Markey: If we fail to move forward with transitioning stewardship with in a reasonable time what is our risk we lose our change to preserve the multistakeholder model
1156: Beckerman: If we send the wrong signal there will be ramifications for multistakeholderism well beyond this.
1156: Kobeshar: Open letter supporting transition from 17 companies. Another from 7 civil society organizations. What aspects of the accountability proposals give confidences that accountability will remain.
1157: Gross: Proposals designed to ensure accountability. Feels very confident.
1159: Kobehsar: Stress tests based on the USG requiremetn?
1159: Delbianco: new mechanisms gave the ability to hold accountable far better than the current ICANN.
1200: Will experience of implementing new TLDs help ICANN?
1200: Confusion about ICANN’s role. IANA registry AND policy function. Transition enhances separation of function. Protects the technical function which makes for safer system for all.
1202 Markey: Great technical acheviement — selling Instagram for a billion dollars. How will transition benefit American businesses.
1203: Beckerman: Gives confidence Internet will continue as is.
1204: Delbianco:  Businesses can now challenge ICANN.
1204; Markey: What are Russia and China proposing.
1205: Gross: they would seek to enhance the role of the ITU as regulator. Said explicitly that the ITU should take this over.
1206: Markey: Why would this be worse?
1208: Gross: ITU is not multistakeholder. One size fits all, not allow diverse voices.
1208 Markey: ITU different model.
1207: Danger of how Iran or China could use captured ICANN to disrupt the WWW.
1208: Sullivan: They can’t. They can’t subvert the Internet’s design.
1208: Thune: What technical mechanism would they use.
1209: Sullivan: Root servers can’t prevent a single domain being  censored in the United States.













Les Oubliettes, dungeons and dragons.

Someone in ICANN has a sense of humour.

From Wikipedia:

An oubliette (from the French oubliette, literally “forgotten place”) was a form of dungeon which was accessible only from a hatch in a high ceiling. The word comes from the same root as the French oublier, “to forget”, as it was used for those prisoners the captors wished to forget.

The earliest use of oubliette in French dates back to 1374, but its earliest adoption in English is Walter Scott‘s Ivanhoe in 1819: “The place was utterly dark—the oubliette, as I suppose, of their accursed convent.”[2]

Sounds about right to me.

Swedish PTT official to be new ICANN CEO

Göran Marby, currently Director-General of the Swedish Post and Telecom Authority (PTS) to start at ICANN May 2016

Los Angeles, California… Göran Marby, an experienced business executive and government leader has been named the next President and Chief Executive Officer of the Internet Corporation for Assigned Names and Numbers (ICANN).

“I’m delighted to announce Göran as the new head of ICANN,” said Dr. Stephen Crocker, Chair of the ICANN Board of Directors. “His leadership experience as a technology CEO and start up founder as well as his current experience as Director-General of the Swedish Post and Telecom Authority will be invaluable as ICANN moves towards the next chapter in its history. We conducted an extensive, global search and Göran impressed us all throughout with his shared values, operational experience and understanding of the Internet ecosystem. I’m looking forward to working with him and what I know will be his substantial contribution to ICANN and to helping ensure a stable, secure and unified global Internet.”

Marby is a Swedish citizen, currently living in Stockholm. He and his family will be relocating to Los Angeles, California the location of one of ICANN’s three global hubs.

“I am very excited to be joining ICANN and joining at the start of a new era for the organization and the community,” said Marby. “While I know there is much for me to learn, I am eager to work with ICANN’s multistakeholder community to continue all the good work that ICANN has been doing and am very committed to implementing the community’s decisions – both with respect to the IANA Stewardship Transition, but also in the myriad important areas of ICANN policy development as it fulfills its mission.”

Marby will succeed current President and CEO Fadi Chehadé whose term finishes on March 15, 2016. Marby will join ICANN in May 2016. During this time, Akram Atallah, President of ICANN’s Global Domains Division will serve as acting CEO.

“I am very grateful to Akram for agreeing to step into this role and providing the continuity and leadership ICANN needs at such an important time,” said Dr Crocker.

Göran Marby has more than 20 years of experience in the Internet and technology sectors. Prior to joining PTS he co-founded AppGate Network Security AB a security software company where he served as CEO between 2002 and 2009 with a focus on international customers and operations.

He has held several other leadership roles in the Internet and technology sectors including as CEO of Cygate a network services company, Country Manager for Cisco in Sweden and as CEO of Unisource Business Networks in Sweden.

Marby holds a Bachelor of Science from the University of Gothenburg School Economics.

CENTR and Commission meet and discuss ICANN Accountability

The European Commission’s High Level Group on Internet Governance (HLIG) met with the CENTR community on 8th October 2015 to discuss ICANN Accountability improvements.

Following the meeting the parties issued the following communique:

Joint statement from CENTR and the European Commission’s HLIG on the IANA Stewardship Transition and ICANN Accountability improvement processes

This statement was agreed upon following a joint meeting between the European Commission’s High Level Group on Internet Governance (HLIG) and the Council of European National Top Level Domain Registries (CENTR) on the Internet Assigned Numbers Authority (IANA) stewardship transition and Internet Corporation for Assigned Names and Numbers (ICANN) accountability improvement processes, which was held in Brussels on 8 October 2015.

European Domain Name System (DNS) stakeholders, including governments and country code top-level domain (ccTLD) registries, have called for the IANA stewardship to be transitioned to the multistakeholder community for a long time. Within the ground rules set by the United States’ National Telecommunications and Information Administration (NTIA), stakeholders from across the world have engaged to make sure that the IANA transition and the absence of NTIA oversight goes hand-in-hand with improved accountability and transparency.

At a time when the importance of the internet is steadily increasing – at political, social and economic levels – and in the advent of WSIS+10, it is crucial that the IANA Stewardship Transition process also leads to an improved accountability towards the global internet community.

We wish to reiterate our support to the Cross-Community Working Group on the IANA Stewardship Transition (CWG) and to the work of the IANA Stewardship Transition Coordination Group (ICG).

The requirements set forth by the proposals from the CWG and ICG groups can only be met if implemented by credible, enforceable powers in the ultimate interest of all stakeholder groups. This has already been underlined by the unanimous but conditional approval of the CWG proposal by all of ICANN’s Supporting Organizations (SOs) and Advisory Committees (ACs) at the Buenos Aires ICANN Meeting in June 2015.

The accountability proposal has gone through the multistakeholder process, it has been legally assessed and went through two public consultations. The process as outlined by the NTIA was followed and all stakeholders should respect the outcome. The outcome will only have the necessary legitimacy if the bottom-up, consensus-driven process continues to be fully respected.

We strongly encourage all participants in the next face-to-face meeting of the Cross-Community Working Group on Accountability (CCWG) to review the second draft proposal and present it to all stakeholder groups at the ICANN 54 meeting. We are looking forward to seeing a consensus-based draft and updated timeline by the end of the ICANN Dublin meeting. We will work within the process to make sure this happens.

PDF version of the joint statement
News article

Alexandrine Gauvin
Communications Manager

ICANN continues opposition to human rights safeguards

Human Rights obligations are something that obtain in respect of the relationship between the individual and the State, that is to say between the individual on the one hand, and governments/public authorities on the other.

This is fairly obvious, because governments and public authorities may regulate  human activity, so it’s commonly accepted that there should be certain limits on this.

ICANN is a multimillion dollar corporation which few people in the outside world have heard of, yet it affects, at the overall, and fundamental, the way the whole internet works

Human rights includes some absolute things like the right to life, and freedom from slavery and torture.  Clearly, these rights are not engaged in respect of ICANN’s work.

But human rights also includes the right to property (including intellectual property), the right to privacy and the right to free expression — three things that are very closely associated with ICANN’s mission.

The problem is this:

At the moment, there is a backstop giving authority and legitimacy to ICANN’s work.  The US Government does have responsibilities to ensure (however it does it) that fundamental and human rights are respected.

Whilst you could argue how effective it is in this regard, there is no doubt that the United States supports the rights set out in the Universal Declaration (of which the US was a member of the drafting commission).

Once ICANN is entirely a private sector organisation, it will have no legal or other obligations to respect fundamental and human rights whatsoever.

The only remaining influence that could keep ICANN on the straight and narrow, regarding matters of respect for human rights, will be the GAC – an advisory committee made up of government representatives, tasked with providing advice on public policy matters to ICANN.

However, the GAC is a complex organisation, which has, in microcosm, many of the difficulties that beset other multinational organisations.

The Cross Community Working Group on ICANN Accountability, has however, reached a strong consensus on the issue, which is

ICANN must incorporate a binding commitment to human rights principles before transition may proceed..

However the working group also fully recognises that such a commitment can only apply within ICANN’s limited and defined mission of coordinating the internet’s system of identifiers. It should be obvious to anyone who gives the matter more than 30 seconds thought that ICANN is not going to be expected to become a mini-UN peacekeeping force. And no one is suggesting this.

A rudimentary commitment to international human rights standards is already there, to some extent.

Article 4 of ICANN’s Articles of Incorporation (which was examined in the .XXX adjudication) creates, under California law, a binding obligation to follow applicable international law.

In its response, the ICANN Board appeared to reject the principle of human rights safefguards for ICANN’s work, saying it was ‘premature’.

In a face-to-face meeting in Santa Monica today, the Board appeared to row back slightly from this, but the air was nonetheless full of hypothetical strawmen as to why it might be dangerous to add a commitment for respect for human rights into ICANN’s mission.

 And it’s still unclear whether the Board will accept that ICANN should have this fundamental duty to the global public interest.

If it does not, however, it will create the very unwanted attention regarding lack of accountability that it seeks to avoid.

Ubi vires?

The following is my submission during the Public Comment phase of the IANA Transition Proposal

The IANA Transition Proposal is a proposal to transfer existing apparent residual powers currently exercised by the United States Government in respect of the important Internet Assigned Numbers
Authority (IANA) function; day-to-day operations being carried out by ICANN under a contract awarded to it by the Federal Government.

It is notable and welcome that the Proposal appears to recognise, to a large extent, the need for the Corporation to have real and enforceable accountability to those whom the Corporation, in the future, will regulate, or have significant economic effects upon by virtue of the IANA role.

As the business goal of the Corporation is to “co-ordinate at the overall level the Internet’s system of unique names and numbers”, it can clearly be seen that this means ICANN must needs find ways to be held accountable to the whole world: that is to say, business, civil society and public authorities world-wide.

The Proposal contains many interesting features, ostensibly designed to achieve this goal. They may (or may not) do so to the needed extent. Others equally qualified to comment have already, and will, provide input on these specific features.

Accordingly I choose to focus this, my formal submission on the Proposal, to a more fundamental question, which I submit, is required to be answered before transition may proceed.

That question can be summarised as follows: ”Whence derive the powers?”.  More specifically, it is submitted that as a pre-requisite of transition, it must be necessary to understand with complete clarity the following:

  1.  the legal basis for the existing role of the agencies of the United States;
  2. under what existing statutory powers or proposed legislation the proposed transfer of powers from the United States to a California non-profit corporation is to take place; and
  3. precisely which powers are proposed to be transferred from the United States to the selected private sector body by virtue of the IANA transition.

It is axiomatic, and trite to say that the principle of the Rule of Law (not to mention the constitution of the US) demands a government of laws, not governance by men. Yet, it seems to this author, the Proposal curiously lacks the necessary fundamental background of the powers involved. It is submitted that it is only reasonable to expect that the Proposal should set this out with precision and clarity before delving into the technical mechanics of how a future ICANN, once removed from the benevolent oversight of the United States’ Department of Commerce, would operate.

To the writer, it appears to be envisaged in the Proposal, that post-transition the Corporation (ICANN) will have untrammelled powers to co-ordinate (that is to say: to regulate) the Internet’s unique system of names and numbers in accordance with ICANN policies and its world-view of the global interest.

It further appears that, post-transition, that the operator for-the-time-being of the IANA function (i.e. ICANN) is intended to have power (within ICANN’s mission and policies but without external oversight such as is currently exercised by the United States) to create, modify, and remove global and country-code top-level domains (gTLDs and ccTLDs).

As an entirely private sector corporation, it is hard to see where ICANN’s legal authority is intended to sit, post-transition. The power  to compel another individual or corporation to regulatory compliance has to be founded either in contract, alternatively in statutory or prerogative power.

Further, as any other non-profit corporation, ICANN is free to enter into any contracts that it wishes, it remains hard to see whence (in the absence of some form of a deed of gift by the United States under existing statutory powers of the US Federal government) ICANN could henceforth derive a legal authority over the root zone database, which, although there are some questions about its very nature, has been previously claimed belongs to the United States, and without whose affirmative sanction, permissions, additions, modification and removal of entries may not currently be made.

In the absence of the needed clarity on the matters set out above, I cannot and do not support the Proposal as is.

Accordingly it is submitted that no changes to the status quo should be made unless and until the abovementioned deficiency has been rectified.