Friday, March 07, 2008

I Think ICANN, I Think ICANN

Perhaps you remember when a Fed judge shutdown a whole foreign owned website because a Swiss bank laundering money in the Cayman Islands objected to it. Well at least that company had to go thru a judicial process, no matter how flawed it was.

Guess what, Bushco can shut down a foreign owned, foreign served website without judicial review, without little explanation or recourse:
A Wave of the Watch List, and Speech Disappears

Steve Marshall is an English travel agent. He lives in Spain, and he sells trips to Europeans who want to go to sunny places, including Cuba. In October, about 80 of his Web sites stopped working, thanks to the United States government.
It turned out, though, that Mr. Marshall’s Web sites had been put on a Treasury Department blacklist and, as a consequence, his American domain name registrar, eNom Inc., had disabled them. [...] there is no dispute that eNom shut down Mr. Marshall’s sites without notifying him and has refused to release the domain names to him. In effect, Mr. Marshall said, eNom has taken his property and interfered with his business.
Mr. Marshall said he did not understand “how Web sites owned by a British national operating via a Spanish travel agency can be affected by U.S. law.” Worse, he said, “these days not even a judge is required for the U.S. government to censor online materials.”
But wait! There's more!
Of course, eNom has an agreement with the Internet Corporation for Assigned Names and Numbers (”ICANN”) where eNom agrees to abide by ICANN’s “Policy on Transfer of Registrations between Registrars.” That policy sets forth the only circumstances under which a domain registrar may refuse to transfer a domain name to another registrar, such as a court order or evidence of fraud. The policy does not permit withholding that transfer based on a claim that the domain names are blocked property under OFAC’s regulations.

In such cases Marshall would be entitled to avail himself of ICANN’s “Registrar Transfer Dispute Resolution Policy” to obtain an arbitral order requiring eNom to transfer the domain name and, if eNom still refused to do so, ICANN could terminate eNom’s status as a domain name registry. But here’s the rub: ICANN either can’t or won’t do that because it is a California non-profit corporation and is itself subject to the Cuba sanctions.

This, of course, resurrects the dispute that the rest of the world had in allowing the U.S. so much control over the Internet name-assignment process in the first place.

Cross posted at VidiotSpeak