ICANN pays to push Whois case to European Court of Justice

Domain-name system overseer ICANN will spend millions of dollars arguing its GDPR case to the European Court of Justice rather than resolve its own internal disagreements. The California-based non-profit said this week it would appeal a decision against it in German court but also, bizarrely, announced that it would also …

[lglethal]

Here's hoping the case is thrown out with extreme prejudice (or whatever the equivalent local legal term is). Having the court basically go "No, your case is ridiculous and there are no further grounds for appeal. Go away and stop bothering us." would be highly deserved (not to mention hilarious).

[Huw D]

In a complete about face...

Especially if done in the style of the French knights in Holy Grail.

"You don't frighten us, American pig-dogs! Go and boil your bottoms, son of a silly person! Ah blow my nose at you, so-called "Eeeee Kaaaneeen"! You and all your silly Whois Knnnnnnnn-ighuts!!"

[katrinab]

The courts will answer the question about whether or not the German registrar was right to ignore the contract on the grounds that the contract is illegal; and the answer they will give will be yes; because you can't make consent to publish names / addresses / phone numbers / emails on a public website a condition of providing the service.

[Christoph]

This one could run and run

Are they trying to outdo the SCO / Linux case for extended legal farting about?

Or are they trying to outdo Jarndyce v. Jarndyce?

[Doctor Syntax]

Re: This one could run and run

"Are they trying to outdo the SCO / Linux case for extended legal farting about?"

Given that they're trying to accelerate its progress to the top court, maybe not. Unless they want to take it on to the UN or something when they've failed comprehensively in Europe.

[Mark 85]

Re: This one could run and run

Well, it is about money, so judge the reasoning/time it will take/etc. for yourself. Start by asking "

what does ICANN have to loose by complying?". Answer that and you'll get an idea of how long this will take.

[Nick Kew]

Re: This one could run and run

No, quite the opposite. They're looking for a quick and clean defeat. Hence jurisdiction-shopping in no-nonsense Germany, rather than one of the many countries (like Blighty) where the case would be likely to go on and on and consume an order of magnitude more in lawyers fees.

I said so last time this story came up. This just confirms it.

[Will Godfrey]

Time for a song

never gonna give this up...

we need a popcorn icon

[ratfox]

Re: Time for a song

we need a popcorn icon

I have found that the beer icon works well for this purpose.

[Captain Scarlet]

Re: Time for a song

I tend to find Beer and Popcorn don't mix well

*Urp*

[Rob D.]

Re: Time for a song

I simply can't eat this much popcorn.

[Anonymous Coward]

Maybe it's time to levy a tax on all newly-created TLDs?

Although after paying a GDPR fine ICANN are likely to find themselves a tad short of cash.

[Paul Kinsler]

"most controversially $125m for .web"

I think if I had more money than sense, I'd prefer to buy something like .http or .https :-)

[ratfox]

So what happens when inevitably their money runs out because of mismanagement and corruption? They ask for a bailout?

[Paul Crawford]

Probably team up with FIFA or the directors of the European Patent Office?

[I ain't Spartacus]

They can sell .amazon to Amazon, and ignore the government committee. Then decide to "auction" .google, microsoft .apple and .coke - forcing those companies to buy their own domains. Although it would be funny if one of the drug cartels outbit CocaCola for .coke.

Maybe get a bidding war going between Bitcoin miners and druggies for .hash as well...

In reality though it's easy. They just hike the prices for the registrars, and get them passed on to the customers. This has worked very well for Nominet, for example. And because of the generally pisspoor governance models in place in this area, there's nothing "stakeholders" can do. Unless they finally rise up and hammer those stakes through the hearts of the "non-profits" in question, and get them run by better people.

[rskurat]

I don't know how things stand in the UK or in Oz, but non-profits in the US aren't really non-profit anymore: they simply distribute the profits internally as "performance bonuses" and externally as "consultancies."

How do you rob a bank? You run it into the ground, on purpose.

[Mage]

What are ICANN smoking?

See title.

Smacks of total irrational desperation, like a rich spoilt two year old.

[ArrZarr]

Re: What are ICANN smoking?

The problem is that this whole saga has been so insane that it almost makes me question the fine journalism on display at El Reg, as to whether real life can possibly contain this much concentrated failure and corruption.

[Pascal Monett]

Re: What are ICANN smoking?

At this point, I think whatever it is it has been integrated into the atmospheric control of the building. The vast majority of the employees are inhaling it without even knowing - or have forgotten that they are.

There is only one who is responsible for all this : the one who keeps pouring it into the A/C vats. Marby, is that you ?

[Voland's right hand]

Re: What are ICANN smoking?

Smacks of total irrational desperation

No, just normal behaviour of an American company which has been told that it needs to obey a law different from the contractual law in whatever hamlet in USA they reside at the moment.

[CrazyOldCatMan]

Re: What are ICANN smoking?

Smacks of total irrational desperation

Or, more accurately, that ICANN expect the EU courts to kowtow to mysterious brown envelopes stuffed with dollars just like the US courts did.

[Edward Phillips]

"Appealing" to the ECJ

There are two reasons for going to the ECJ - first because you want a point of EU law clarified, and secondly because you're desperate to slow things down.

An ECJ reference can take years and might be useful for, for an example entirely at random, a US corporation desperate to buy yourself time because you've done nothing about something for years and need time to do nothing for a few more years.

However, as ICANN seems to know, you don't "appeal" to the ECJ, and you don't get to choose if you go there. The ECJ is the court's "phone a friend" option: the court decides whether to refer a case, and should refer only if the need guidance on EU law. If something is obvious or clear, they won't do it. "Demanding" a reference will only work if the court (a ) agrees and (b ) is sympathetic to being lectured about data protection by a US corporation.

[Doctor Syntax]

"The answer is simple: the organization has more money than sense."

A few GDPR-max fines will correct that ratio. Meanwhile I suppose their lawyers are assisting them on a slightly smaller scale.

[Blockchain commentard]

The spoilt brats might shut off domain names entirely for EU states if things don't go their way.

The EU are building their own GPS so as not to be reliant on the Americans. Perhaps we should think about building an EU internet? The way things are going, we'd probably get Africa and Asia joining us.

[apveening]

Re: Perhaps we should think about building an EU internet?

South America will probably join as well.

[Yes Me]

Re: Perhaps we should think about building an EU internet?

We did that, in the late 1980s and the early 1990s. It works quite nicely. People seem to confuse TLD administration with running the actual Internet.

[Maelstorm]

The problem here...

The problem here is that ICANN is not bound by EU regulations. They are only bound by US regulations because they have a contract with the US Department of Commerce (USDOC). So the way that I see it, ICANN can pretty much do what they want as long as two things are followed:

1. They follow US laws.

2. They uphold the terms of the contract with the USDOC which is not available publicly.

Since ICANN has sole control over a number of TLDs, and they also run the 13 root name servers, they can easily sanction any registrar who does not follow their rules if ICANN wants to play hardball. The best way to handle the situation would be to go through a treaty/international agreement to file a complaint with the USDOC.

In other words, the reality of the situation is that we have a corporation who exists entirely in one country, following the laws of that one country, who has the power and ability to dictate to the entire planet how things are done, regardless of what local laws/regulations say because of their unique position. The local governments do not really have any power to enforce their own laws in their own country because said corporation has no assets to leverage in that country. So the corporation can punish/sanction their members without fear of repercussions from those local governments.

So ICANN can tell the EU to pound sand, sanction EU registrars, and thumb their nose at any fines the EU may impose since a EU court decision is not binding inside the borders of the US. There is case law here in the US to support this viewpoint (mainly with France). I think the UN's ITU should take this over, but because of the aforementioned reasons, the US has to agree, and so far they haven't. The EU could form their own DNS system, but then we run into the situation where you now have two conflicting systems (TOR is an example).

I live in the US myself, and I don't like it, but this is the reality of the situation that the world is in. Because of our power and status in the international community, the US has a habit of ignoring UN directives.

[phicoh]

Re: The problem here...

ICANN does not run the 13 root DNS servers. There are quite a few root servers operated by independent organizations.

The EU and the US basically agree on how the internet should governed. And that does not include governments having direct influence over the core aspects of the internet (IETF, DNS gTLDs, RIRs).

The problem is of course that the GDPR directly affects ICANN. But at the same time, the WHOIS service is not traditionally considered a core part of the internet.

So US government is in the tricky position that it doesn't like the effect of the GDPR on WHOIS and at the same time, interfering with the operation of the DNS gTLD would have massive world wide implications, which may cause damage way beyond losing WHOIS.

[Yes Me]

Re: The problem here...

You say:

They are only bound by US regulations because they have a contract with the US Department of Commerce (USDOC).

No they don't; that contract went away two years ago (fortunately, or we'd have Trump sticking his tweeter in). But as a California non-profit corporation, they are primarily bound by US and California laws. If they run operations in the EU, those are bound by EU and national laws. By asking for an injunction against a German company in a German court, they are accepting German and EU jurisdiction anyway.

As for the root servers, please get your facts straight. And watch out for the way Kieren always mixes facts and his personal opinions in any story about ICANN.

[rskurat]

Re: The problem here...

You may have noticed that our power & status is rapidly declining. I think the separate DNS system is the most likely outcome.

[Anonymous Coward]

Pournelle's Iron Law of Bureaucracy in full effect.

Somehow a photo of the board does not restore confidence. I don't knew fully why.

[Yes Me]

Board photo

Somehow a photo of the board does not restore confidence. I don't knew fully why.

I think you'll find the same goes for any corporate board. What I don't quite get (being personally acquainted with at least 20 of the present or past board members) is how ICANN become so arrogant, for arrogant it certainly is. Without that problem, a lot of their decisions would be less inexplicable.

Of course, there's no way back now from the fundamental blunder of defining any new gTLDs at all.

[Joeyjoejojrshabado]

What is wrong with these people?

Have they ever participated in society?

Would they even know how to make small chat?

[Jamie Jones]

Repeat a lie often enough...

From the ICANN page linked to in the article:

if EPAG's actions stand, those with legitimate purposes, including security-related purposes, law enforcement, intellectual property rights holders, and other legitimate users of that information may no longer be able to access full WHOIS records.

Yes they can. Through the courts. With a warrant. Usual stuff.

Besides, if this was truely their worry, they should be pleased - a non-public database is far more likely to be accurate than a public one. This is about money. Nothing else.

[druck]

FIFA

ICANN are stating to make FIFA look good.

[petef]

ICANN seem to be taking their non-profit status quite seriously.

[Nick Kew]

US providers respect GDPR

For what it's worth, I transferred a domain to a US registrar today (my previous provider having discontinued the service)). This was a .org domain, nothing EU-oriented about it.

They offered a privacy option to hide all my details. It was offered as a free extra, which I was encouraged to select. I was slightly in two minds (dammit, I post to El Reg under my real name too), but I ticked the option with thoughts that it would be perverse to risk them getting a visit from GDPR enforcement on my account.

[catprog]

Just $45,000 a year?

So the ICANN's Board of Directors are paid less then an average Aussie worker?