Another Irish post. It’s a long one, and I’m slightly guilty of burying the lead. Apologies.
A long process has (almost) come to an end, with yesterday’s announcement by Irish communications regulator ComReg of its findings in relation to the regulation of .ie. Like many, I wondered if it had been forgotten about – the 2008 consultation closed some time ago..but like media pluralism, its time has come. Or something.
ComReg has announced (press release | full report) that it will, by regulation, appoint the incumbent IE Domain Registry (IEDR) as the body for domain registration in Ireland; for 12 months but with an expected extension. An application will be made (to ICANN) to designate the Dept. of Communications, Energy and National Resources as responsible for the .ie namespace. We haven’t seen sight of the regulations yet, and ComReg’s power to make the regulations already exists, so there’s still more work to be done. The various consultation responses have also been published (giving me some relief – I had to make an FOI request to get the fruits of a prior (DCMNR) consultation), including some extremely good contributions (read them all here) by Antoin O Lachtnain and ICANN board member Dennis Jennings. But to figure out what’s going on, we need to go back, back (…insert misty dreamlike transition slide…)
The story starts, or at least gets going, with section 31 of the Electronic Commerce Act 2000. Although most of the Act dealt with a bundle of obvious e-commerce issues, this section always sat a little awkwardly. It gave the relevant Minister, then the Minister for Public Enterprise (but now the Minister for Communications, Energy & Natural Resources), the power to regulate .ie. At the time, there was a genuine doubt as to the role of governments in the regulation of country-code top level domains (ccTLDs), and the IE Domain Registry (IEDR) had been around for some time, originally fairly informally out of University College Dublin (UCD) but emerging into a more formal, independent legal structure (though UCD is still, nominally, still the responsible body from an international (ICANN/IANA) point of view).
Fast-forward to the middle of the present decade, and the Minister’s powers have not been exercised, despite various bits of criticism of IEDR and indeed a series of announcements by Government that something was about to happen. The pre-legislative process for the Electronic Communications (Miscellaneous) Bill 2005 did suggest that these powers would be transferred to ComReg, and indeed ended up in what became the Communications Regulation (Amendment) Bill (and then Act) 2007. There was some confusion at the time (I attempted to unravel it all here), but not much changed as a matter of law, other than the reassignment of the theoretical possibility of doing something. However, informally there was a good deal of chatter that ComReg would be more likely to use its powers than the Minister; the official line was that ComReg was better placed to carry out the task than central government. I have a big bundle of FOI documents on the process leading up to the 2007 Act, awaiting time to write about it properly.
While we’ve been waiting for the outcome of Comreg’s consultation, criticism of IEDR has continued, such as Michele Neylon’s posts, Has the time come to redelegate IE namespace? I’m quite surprised at how IEDR in its own submission to ComReg still opposes the role of ComReg, despite the legislation (that Comreg has no power to amend): lots of concern for its property rights, and even arguing that it is ‘ironic’ that ComReg “is seeking to regulate” its activities while not regulating .com and .net (“the source of spam, identity theft, credit card fraud and unsavoury practices such as cyber crime, warehousing of Internet addresses etc“). The mind boggles.
It’s quite hard to get a picture of what’s happening, as ComReg still refuses to release its own report on IEDR, and finds in a whole load of places that it is necessary for various unnamed recommendations to be dealt with. Indeed, the key finding: “ComReg has satisfied itself through its external review and due diligence examinations that IEDR is financially and technically sound and operates under an acceptable code of governance” is effectively meaningless to the citizen observer, as neither the external review nor due diligence examination is available. In any other context, this would be a joke. While there are of course reasons to redact certain elements, the presumption should always in favour of publication to the maximum extent possible, particularly when powers that originate in specific legislation are being exercised.
That said, there’s lots to think about here. The ‘managed’ status will continue (.ie is restricted through various rules, such as requiring Irish presence, specific requirements regarding personal and company names, etc), fees won’t be set by ComReg, escrow (a backup in case IEDR disappears in a puff of smoke) will be required, and there’s more in the report for all of us to digest this week. Nothing clear on the problem of supposedly inappropriate names, though. And I also raise an eyebrow at asking the Department to be the body receiving the ICANN/IANA delegation, given that the legislation took away most of the Department’s functions in favour of Comreg – it’s a further split with one body ‘in charge’ (DCENR), another body making the regulations (ComReg) and another body (IEDR or any future replacement) doing the work. It might just be crazy enough to work.
And we’re going to see an Irish version of the Nominet Policy Advisory Body, called the Policy Advisory Committee. Probably fairly toothless, but progress nonetheless.