Vienna Centr Legal and Regulatory Committee Report - 02 - 04/02/05

CENTR L&R, and Domain Pulse

Report on Visit to Vienna 2-4 February 2005

CENTR L&R

Introduction

The 18th Legal and Regulatory meeting of CENTR was held in Vienna on 2 February. CENTR's (6th) Administrative workshop was held on the same day as a separate stream. The two workshops joined in the afternoon for two agenda items.

Attendees at the CENTR L&R/Admin meetings were from the following registries:

.cz, .es, .fi, .ie, .se, .at, .de, .nl, .nz, .be, .uk, .gg, .ru, .il, .uk, .ch, .no, .jp, .us, .pl, .hu, .si.

Representatives from Versign also attended.

General comments

It was disappointing that the ccNSO bylaws was not on the agenda. Action LR17.1 had been for members to submit their input concerning the ccNSO bylaws. This item remained open for the 18th L&R. The bylaws are likely to be discussed at the June GA.

I have requested that agenda be provided in final form at least two weeks prior to the meeting, to enable distant members to plan appropriately.

I took an opportunity to meet with Paul Kane and Giovanni Seppia of CENTR to go through the draft ICANN Strategic Plan, and in particular the concerns that INZ has with the plan. There are two consequences of this :

1. The discussion will go back to CENTR and may be included in CENTR feedback on the Strategic Plan.
2. In the event that Paul or Giovanni participate in the Strategic Plan consultation in Amsterdam the views of INZ may be included in their comments. In fact this proved so.

CENTR L&R Items

EU Directives and Whois

A paper written by Patrizzio Menchetti was discussed for its application to whois. The context of the paper was around an interpretation of the terms "electronic communication" and "directory service".

The paper concludes that the applicability of Directive 2002/58/EC to Whois is controversial and doubts that the legislator intended to cover whois.

Those present supported this view. Ed Phillips (.uk) suggests that whois might be likened to a reverse directory. It was noted that.uk allows PO Box addresses in whois data, whereas .de does not.

Future Dispute Resolution under .eu

An Alternative Disputes Resolution process under .eu is being developed. So far more than 90% of policy areas have been defined. Since .eu is not a conventional cctld legal issues in the context of relations with a government do not apply. Instead there is the complexity of the eu framework.

The ADR is largely based on WIPO/ICANN UDRP (established in around 2000). The intention is to cover a wide variety of rights (such as geographical indicators, family names, trademarks, commercial names).

Language is proving to be a main stumbling block since all eu member languages are covered. An application might be frustrated through the selection of a minority language eg Maltese.

Special Domain Cases under .nl

Presented by Bart Vastenburg

Legal nature of .nl domain names - two opposing views - IP vs service contract. .nl domain registration is seen as a service contract and therefore primarily subject to contract law (as opposed to property law).

The different interpretation can affect legal practices for registries eg for seizures, pending appeal cases.

Hira Hotta gave an overview of the dispute resolution process in .jp - JDRP. Since inception in 2000 there have been around 30 cases. The number of cases is decreasing over time. The DRP deals only with trademark issues.

Future meetings

I asked Stephan when ccNSO bylaw issues would be discussed. The reply provided was -

The CENTR manager is currently collating responses. So far submissions have been received from 7 ccs. It is anticipated that these will be discussed at the next GA (in Brussels mid Feb), and any issues to be referred to L&R to be sent back to the next GA (June).

Domain Pulse

This 2 day workshop, which is aimed at German-speaking registries, was held at the same venue as CENTR L&R, during 3-4 February.

More than 200 people attended the workshops which were hosted by nic.at, including full catering, at no charge. Realtime English translations were provided for most items.

Overview of the Internet in Austria

Profesor Helmut Kukacka, State Secretary in Austria's Ministry for Transportation, Innovation and Technology

Austria now has more than 400,000 domain names. Broadband access is now 60% in rural areas and 90% in urban areas. Their policy is that Government will support but not legislate - do only as much as is needed to ensure a vibrant Internet community.

Role of the Regulator in the Internet

Dr Georg Serentschy

Approach in Austria is balanced and holistic - regard centralized infrastructure as important, unbundling is a critical element of liberalization.

Aims include promoting "useful" services - government would assist with bringing these to the end user, consumer protection, and with educating users.

See www.rtr.at

A panel of Dr Peter Rastl, Dr Michael Haberler and Richard Wein discussed the history of at management.

ICANN - WSIS

This was the most significant item on the afternoon agenda.

The main speaker was Prof Wolfgang Kleinwachter (WGIG Working Group).

The discussion panel comprised Paul Verhoef (ICANN), Sabine (denic), Alfred Ruzicka (BMVIT), Philip Grabensee (Afilias) - also attended at Amsterdam, and Marc Holitscher (Internet Governance Project).

I had earlier had a long conversation with Professor Kleinwachter over breakfast during which he described his views on Internet governance and sketched out his proposed solution. I can summarise his ideas as a very loose framework of voluntary participation by a number of different committees or groups, private/public mix, with a United Nations coordinating body (which he calls UNIG.COM). His ideas are that bilateral arrangements between different groups would deal with issues as they arise. His theories lacked any kind of leadership or structure that could be described as top-down or bottom-up - and he referred to this several times as a "spaghetti ball". I can't say he seemed convinced that this structure would work, but it's an idea he is putting forward.

In his presentation to the conference Prof Kleinwachter started with the background of failure to achieve agreement between ICANN and the UN body ITU. What will happen beyond October 2006? ITU plans a Plenipotentiary conference about that time.

Looking ahead he espouses principles of "M3" - Multilayer, Multiplayer, Mechanism; and "C3"- Communication, Coordination, Cooperation. He then outlined his theories of mix of different players - private/public, the C3 system, and bilateral arrangements to address topics.

Following this presentation, panel participants commented -

Marc Holitscher - Internet Governance Project www.internetgovernance.org .

Current debates have the positive consequence of developing a broader understanding of internet governance. On the other hand regime changes, shifts and conflicts makes it difficult for existing organizations to focus on a concerted approach to issues such as dealing with spam. Disagrees with Professor Kleinwachter's proposed arrangement - the big players would never have the discipline to operate this way, there is a big difference between theory and practicality. China is the big challenge.

Philip Grabensee was supportive of the existing arrangement - function of ICANN and its private company structure is very appropriate and suitable - is dynamic.

Alfred Ruzicka questions what needs to be governed/regulated. WSIS has defined that management of the Internet is not a private thing - but not sure what this means. Regulation for a government means effort and that means cost. Just wanting to regulate for the sake of it isn't very meaningful.

Paul Verhoef also pondered about what might be intended for regulation. Governments need to be clear about what they want to have regulated and how they want to do this. The private sector has put forward its ideas, civil society is OK about being part of the process, but governments seems to know the least about what they want. Paul agrees with Professor Kleinwachter about public/private mix but as yet the government role is unclear.

Says ICANN is trying to work with the ITU - don't want ICANN to take over ITU or vice versa.

enum

Friday's programme started with a practical demo to enum.

The initial demo was played out in the foyer with no translation, however the main presentation was supported.

Representatives from Austria, Germany and Switzerland presented their experiences with enum from development through to production. Key themes that seemed to be common experiences of all countries:

• Number validation is more complex than anticipated. Austria set up a number validation office for each registrar.
• Germany wants to impose a revalidation or confirmation every 3 months that the numbers are active and to be continued. Many registrars think this is too short a term, difficult to talk to the customer every 3 months. In December a drop in subscriptions was experienced when people decided to not renew until needed.
• Technical issues proved to be more time-consuming than initially projected,
• Don't need to have a separate whois for enum. However Germany is establishing a voluntary whois for enum following demand from customers, to publish numbers and internet addresses.
• Legal issues in terms of validation and user rights - having processes to ensure the correct person is liable, eg validating company numbers. University of Vienna has 3,100 people but a single contact telephone number. The University would then have its own internal user directory to connect calls direct to the user.
• Issues with different types of telephone numbers eg under enum you'd have to pay for an 0800 number even though under telephony this is no cost. Need different business rules for the different classes of numbers.

See www.denic.de/en/enum , www.centr.org/kim/enum/index.html

Other issues:

RFC3761 now published.

China said to be unhappy at the numbering - doesn't want anything "dominated" by the US and wants to set up its own top level domain.

US domain is difficult since below the "1" are a further 80-90 countries.

Great Britain had the first delegation; they still have a trial running.

Romania and Poland are well advanced.

Australia started up early and asked for delegation a month ago. A person from Denmark has just returned to Australia and will be running their trial.

Korea and Japan are operating detailed trials. Japan is not using e164.arpa, are using something else but doesn't matter for the trial.

Slovakia is pretty far advanced - first inter-country between Slovakia and Austria.

DNS

Olaf Kolkmann (RIPE)

Notes that phishing, like spam, is becoming a mafia industry.

Main problems are -

The last mile - validation takes place in caching forward, how to get validation results back to the user.

Key management and key distribution - Keys propagate from the signer to the validating entity. The validating entity will need to trust the key to trust the signature.

NSEC walk - Work is starting to study possible solutions. Enum doesn't have the nsec walk problem

Jennifer Northover
February 2005

© 2004 The Internet Society of New Zealand