[DNS] Can auDA offer .org.au and .id.au for tender?

[DNS] Can auDA offer .org.au and .id.au for tender?

From: Jeremy Malcolm <Jeremy§Malcolm.wattle.id.au>
Date: Mon, 05 Nov 2001 12:55:34 +0800
auDA states at point 1.3 of part 2 of its Request for Tender as follows:

  The current delegates of all 2LDs, except those outlined below, have
  agreed to surrender their respective delegation of the relevant 2LD,
  to auDA.

  The current delegate of org.au and id.au has not yet been approached
  to surrender his delegation to [sic] those 2LDs to auDA.  auDA
  intends to make this approach shortly.  However, auDA has received
  legal advice to the effect that the existing delegation held by the
  delegates will have no further force or effect after ICANN re-
  delegages the .au ccTLD to auDA.

I wish to present a contrary opinion to that which auDA has received. 
If my view is correct, then doubt is cast on auDA's ability to request
tenders for the transfer of control of the .org.au and .id.au 2LDs to
new registries.

The domain name system is a hierarchical system.  On this basis it can
trivially be asserted that any redelegation of the aa ccTLD will
automatically effect a redelgation of its subdomains.  This is not quite
correct even on a technical level, but it seems to be the assumption
that underpins auDA's legal advice.

However there are two other levels of analysis on which the same
assertion can be criticised.  These are firstly an analysis of the
position pursuant to the consensual principles of Internet governance
that applied to the original delegations of org.au and id.au, and
secondly a domestic legal analysis.

The original delegation of the .au ccTLD to Robert Elz, and his
subsequent delegations of .org.au and .id.au, were governed by RFC
1591.  RFC 1591 (which is to similar effect as a document called ICP-1
subsequently issued by ICANN) states as follows:

  For any transfer of the designated manager trusteeship from one
  organization to another, the higher-level domain manager (the IANA in
  the case of top-level domains) must receive communications from both
  the old organization and the new organization that assure the IANA
  the transfer in mutually agreed, and that the new organization
  understands its responsibilities.

Although this document is primarily concerned with top-level domains, it
was intended to apply equally further down the hierarchy:

  Most of these same concerns are relevant when a sub-domain is
  delegated and in general the principles described here apply
  recursively to all delegations of the Internet DNS name space.

RFC 1591 does not have the force of International or Australian law. 
However a consensus of understanding based on this document exists
within the Internet community that once a domain has been delegated, it
cannot be revoked and redelegated to a third party in the absence of
agreement of the current delegate, or "in cases where the designated
manager has substantially mis-behaved" (as RFC 1591 records).

Were this not the case, it would be possible upon the change of for
example the .com.au registry for the new registry to arbitrarily
redelegate all of the existing .com.au domain names.  Leaving aside
contractual questions between registrant and registrar or registry, it
is clearly at variance with accepted principles of Internet governance
that a change of control of a higher-level registry will effect an
automatic revocation of domains registered at a lower level.  Yet this
is the proposition implicit in the legal advice apparently obtained by

In my opinion, simply because ICANN may have fulfilled its obligations
pursuant to RFC 1591 in the redelegation of the .au name space from
Robert Elz to auDA (although, parenthetically, this is also a disputed
question), auDA is not thereby exempted from following the same
procedures in redelegating the 2LDs of .au from their existing managers
to new tenderers, any more so than a new tenderer would be exempted from
following the same procedures in arbitrarily redelegating (say) the
auda.org.au domain name from its existing registrant to another.

In opposition to this, it might be said that the only basis on which the
sub-delegations made by Robert Elz could continue to have effect would
be if his own delegation of .au itself continued in effect (for example,
due to some deficiency in the manner in which it was transferred by
ICANN to auDA).  Analysed on this basis, Mr Elz could not have delegated
an authority greater than that he himself possessed, and therefore
auDA's legal advice concludes that on the expiry of his own authority
over .au, his sub-delegations ceased to be of any force of effect.

But this is in my view a misconception, ignoring the fact that Mr Elz
did not sub-delegate the .au domain space on his own authority, but
rather as a delegate or agent of ICANN as the root domain registrar. 
Consequently, the sub-delegation of the .org.au and .id.au domain names
create in their owners rights which are separate and independent from
those of Mr Elz to the .au ccTLD.

These rights are the legitimate expectation that the .org.au and .id.au
custodians possess, pursuant to consensual principles of Internet
governance, that those 2LDs will not be redelegated without the due
process of RFC 1591 being observed.  This expectation, as noted above,
survives the termination of Mr Elz's authority over .au; the domain name
system could scarcely operate if it were otherwise.  Put another way,
the continuing force of the sub-delegations made by Mr Elz derive from
the same source as the continuing force of the delegations made by (say)
the .com.au registrar upon the transfer of authority for the .com.au

If the application of consensual principles of Internet governance is at
variance with the position put forward in auDA's legal advice, what of
the application of domestic Australian law?  There is authority in the
United States for the proposition that domain names are a species of
property (see
http://www.domainnotes.com/news/print/0,,5281_350311,00.html).  Whilst
the law of the United States is not automatically applied in this
country, it is generally considered to be of persuasive value in
Australian courts.

If the right to the administration of 2LDs is proprietary in nature,
then auDA must be very certain of its entitlement to vest those rights
in third parties before proceeding with its current request for tender. 
Not only auDA but also tenderers should be vigilent in ensuring that an
unbroken chain of title exists.  If it were to be found by a court of
law that domain names were a species of intangible property which could
only effectually be dealt with with in compliance with RFC 1591, it
might well also be found that auDA, having not complied with those
procedures, never came into possession of the property with which it is
purporting to deal.

In my view, the current tender for .org.au and .id.au domain names is
premature in view of the failure of auDA to obtain the agreement of the
current .org.au and .id.au delegate to voluntarily transfer his
custodianship of those 2LDs to auDA.  I believe that the tender for
those domains should be postponed until this issue is resolved to the
satisfaction of all parties.

JEREMY MALCOLM <Jeremy&#167;Malcolm.wattle.id.au> http://malcolm.wattle.id.au
Providing online networks of Australian lawyers (http://www.ilaw.com.au)
and Linux experts (http://www.linuxconsultants.com.au) for instant help!
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Received on Mon Nov 05 2001 - 05:05:53 UTC

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