Side note: "the people at IANA" (was: Re: Current requests)

[Luc Pardon]

I don't really want to be drawn into this, but since you ask ...

1. I agree about ICANN being a formidable opponent, but that doesn't
mean that they would be delighted if we would bring trouble on them.

Also, lawyers make their money by suing people. Here in Belgium, we say
that in a lawsuit, the only winners are the lawyers.

Finally, we're not talking about the core business of ICANN being at
stake here. We're talking about us (i.e. this list) behaving like a
rogue elephant in a china shop. ICANN may put up a fight to defend the
shop, but I doubt they would bother to defend the elephant. It's easier
to replace it with a more elegant elephant and settle out of court. (The
plaintiff's lawyer may speculate on that as well.)

2. My example of a non-"Right Thing to do" was "rejecting ao1990 because
we think the underlying convention is rubbish" and it's easy enough to
imagine a few cases for that scenario. You'll have to assume that
'ao1990' was indeed rejected (instead of finally accepted). After all,
what I'm trying to show is that the decisions on this list (in general)
_can_ have consequences, one of them being lawsuits.

Let me first set the stage.

In more and more countries, websites must be accessible by law. In a
nutshell, that means that a blind person must be able to visit your
site, and if not, you're violating the law. It's been a while since I
looked at the standards for judging accessibility, but in general they
all require that the language of the site must be properly marked in the
HTML code. That makes perfect sense, because otherwise the screen reader
software doesn't know how to speak it.

Now, imagine that you are a webmaster in some (imaginary) country where
the lawmakers were smart enough (that's why I said 'imaginary') to write
"conformance to BCP47" into the law, and the stage is set.

Your website is in Portuguese, and you use AO1990 for writing it. But
the tag 'ao1990' is not available, remember? So you are summoned, you
can't show the judge a valid language tag, you're convicted as "not
accessible" and you get fined, plus you're forced to convert your entire
site into another spelling by yesterday.

Next you turn around and sue ICANN, because their IANA department took
it upon themselves to provide a Registry for BCP47. That means that the
AO1990 spelling should have been in there - it's 15 years old your
honour! - but it isn't, so it's because of IANA's negligence that you
got fined, and you want IANA to compensate you for the damage they caused.

"OK", says the judge, "got that. Now please tell me, mister Iana, why is
such an old spelling not in that registry thing of yours?" "Oh", says
IANA, "we thought it was rubbish". "What!!", says the judge, "rubbish!
Our Most Honourable Government in its infinite wisdom has decreed that
it should become the Standard Orthography in this Proud Country from
next year on, and you dare say it is RUBBISH!! Who do you think you are?!!".

No prizes for guessing the outcome.


3. But that's not all.

What if you are a company that looses a multi-million dollar government
deal because the tender requires "official spelling" plus "conformance
to BCP47", and you can't satisfy that for lack of the 'ao1990' tag?


4. OK, I left out some details, about a million or so, but I think you
get the picture.

Basically, a claim for damage compensation requires proof of a) damage,
b) a wrongful act, and c) the causal connection between a) and b).

In the above scenarios, neither of those should pose a particular
problem, at least not in principle.

The key thing is that the rejection of a valid request for frivolous
reasons can easily be presented as a "wrongful act".

And incidentally, since the damage was caused in the country of the
plaintiff, the local courts would probably have jurisdiction to hear the
case. So don't take a US context for granted.


5. With some more imagination, you can think of scenarios for the
refusal of prefix registration requests as well. Maybe not exactly for
"gl-ao1990", but there are plenty of countries on this planet where the
judges would not look kindly on an American company calling their
language "unworthy for recommendation".

We would then be talking about "libel" and the like, and you'd have to
convince the (local) judge that you have been slighted, hurt,
humiliated, whatever.

Even for a rejection of "gl-ao1990", it might be possible to build a
case. The setting would be Spain, and if the judge happens to be firmly
on the side of the Galician reintegrationists, you'd have a better
chance than if he were vehemently opposed to it. Judges are humans too,
they just have to be careful that it doesn't show up in their verdict.


6. Before you take me to the madhouse, please pause a moment to think
how we got here. It started with me essentially saying that IANA may not
think it a good idea if we start taking sides in all kind of sensitive
debates. Doug replied that IANA doesn't care what is in the repository.
I said, yes, but that may change if we bring trouble on them, like
lawsuits. David asked - my translation - on what grounds a lawsuit could
come about. So I tried to show that the possibility should not be
dismissed out of hand. That's all.

Remember also that "not unlikely" is not the same as "likely", much less
"certain".

Anyway, we should avoid taking sides, not for fear of lawsuits, but
simply because it is not the business of this list to take sides. We
have no jurisdiction over the quality of the thing being tagged, so to
speak.

Luc Pardon



On 21-05-15 17:43, David Starner wrote:
> 
> 
> On Thu, May 21, 2015 at 6:29 AM Luc Pardon <lucp at skopos.be
> <mailto:lucp at skopos.be>> wrote:
> 
> 
>     It would certainly take more than waving
>     a few RFC's at the judge.
>     ...
>     Would that happen only after they (or ICANN) are actually sued?
> 
> 
> I suspect if ICANN were sued, the legal power they responded with would
> be as mighty as any seen on behalf of a nonprofit. If the EFF wasn't
> enough, and then Microsoft and Google and friends (who really don't want
> judges meddling in this stuff) aren't enough, well, the US government
> gave up power over ICANN reluctantly less then 10 years ago, and has
> little intent on letting anyone else take power. Moreover, I think ICANN
> can't afford to let such saber-rattling shake it; there's too much at stake.
> 
> In any case, what would the case be? ICANN has created a way to label
> text using this orthography which can be used with gl, but refuses to
> put gl in the list of recommended usages (with it automatically being a
> permitted one)? What is possible judicable about that?