When I did my LLM in Italy, I got sat at the “Muslim Table” during a dinner. They plunked down three bottles of wine. I said “well, as long as you guys don’t mind me drinking here, I’ll be happy to be at the Muslim table.”
The guy next to me says "I can not allow an American to drink alone. May Allah forgive me.” Then we drank all the wine. Then we realized that we actually look a lot alike. Like creepily so. A long friendship was born.
He happened to be from Kosovo.
Well, anyhow, I was emailing with him, and noticed that his government email address ended in .com. I asked “what the hell is up with that?” He explained that ICANN wouldn’t give Kosovo its own ccTLD because they don't recognize it as a “real country.”
That grinds my gears.
Kosovo gained political independence, but it remains a digital vassal of its former master, Serbia. Despite Kosovo’s political independence, won through armed conflict and international diplomatic recognition, ICANN denies the new country its online independence by refusing to grant it control of its own top level domain. ICANN’s refusal to do so does not seem to have any degree of intellectual honesty, but seems more rooted in political expediency and a desire to avoid offending Serbia (and thus by extension, Russia). After a full exhaustive study of the legal and political issues, I published Kosovo’s Digital Independence: Time for Kosovo’s CCTLD.
In the article, I discuss the fact that this is not just a matter of national pride – although national pride should be a sufficient justification. The real justification is that Kosovo deserves full digital independence. A ccTLD is not merely a symbolic indicator of independence, however. Control over ccTLDs allows a nation to control an essential part of their information and technological infrastructure that can affect telecommunications, power grids, banking, and electronic surveillance. National governments recognize ccTLDs as a component of their sovereignty and a vital national interest.
Kosovo broke most other technological ties with Serbia. For example, Kosovo and Serbia agreed that Austria could apply on behalf of Kosovo for an international country calling code as part of the 2013 Brussels Agreement. Up until 1999, Kosovo was covered by the Serbian cell phone network and used the +63 dialing code. Without its own dialing code but with a need to distance itself from Serbian control, Kosovo could use the old Yugoslavian +381 code or could “borrow” a code from another country. In 1999, Kosovo began using Monaco’s +377 code. The Kosovo government essentially regards +63 as illegal since 2008 and kicked out most of the Serbian cell network.
As for its ccTLD designation, Kosovo cannot get out from under Serbia’s thumb so easily. Kosovo continues to remain under Serbia’s ccTLD, even if as a practical matter Kosovo refuses to use it. Kosovo government websites are all on other TLDs, usually “.com” “.net” or “.org.” While this is superior to using a hostile foreign government’s ccTLD, it places these TLDs at least partially under the laws of the United States, as they are privately administered by Verisign52 and Public Interest Registry. Legally, if someone wanted to take action against these domains, they could do so in the Eastern District of Virginia, even though American courts would normally have no place meddling in the affairs of any other independent nation.
Ultimately, this renders Kosovo as an online anomaly. It violently broke free from Serbia, and no reasonable observer can likely see it ever returning to Serbian rule. Since its official ccTLD remains .rs (Serbia) its online presence is still under the Serb National Internet Domain Registry. To evade the censorship and cybersecurity issues that would arise from using “.rs,” Kosovo places its online flag in Virginia. Given the revelations of what the U.S. government and U.S. corporations consider to be fair game when it comes to surveillance and the commercial and governmental use of personal information, one might imagine that this is an inappropriate state of affairs for a self-respecting independent country.
While ICANN refuses to give Kosovo a TLD, it lacks any justifiable reason. Is it controversial? Of course it is. But is it any more controversial than granting the Palestinian State its own TLD? The Soviet Union fell decades ago, but Lenin's old empire remains active online under .su. East Timor, before and after independence, had its own “.tp” and then “.tl.” And, most analogously, Taiwan is at .tw, despite being recognized by fewer nations than Kosovo and both it and China continuing to maintain that it is not actually “independent.” Finally, even insignificant specks of land like Saint Helena Island and Pitcairn Island have complete digital independence, while ICANN refuses to give it to Kosovo.
As Kosovo’s recognition as an independent state grows, Kosovo still has to struggle to fully escape Serbia’s orbit. The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations provides that as a matter of international law, “it is a bedrock principle that every state ‘has the right freely to choose and develop its political, social, economic and cultural systems.’” The international and technological communities have the ability to help Kosovo along this path to full digital independence—or to at least get out of the way. Kosovo’s full and complete independence requires that it have its own country code top-level domain.
ICANN could easily remedy the situation by granting a ccTLD to Kosovo as it has done for many countries (and for a number of less- than countries) in the past. ICANN relies on its general practice of using ISO 3166-1 country codes to refute any discussion of granting Kosovo its own ccTLD, although it has also made clear that this practice is not its official standard. Support from 111 of the UN members and the United States’ backing of Kosovo make it inexplicable that Kosovo remains without its own ccTLD. Kosovo gained its territorial independence through armed struggle and international recognition. Objections to its independence lack intellectually honest justification, and its digital independence should not be held hostage by old Balkan rivalries. The time has come for Kosovo to be given a full seat at the Internet, international, and independence tables.
The full study of this issue can be found at Kosovo's Digital Independence: Time for Kosovo's CCTLD, Wisconsin Int’l Law Journal, http://ssrn.com/abstract=2754182 I hope you'll enjoy reading it.
Marc Randazza is the national president of the First Amendment Lawyers Association
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