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Terror victims try to seize five ccTLDs

Kevin Murphy, July 30, 2014, 14:12:30 (UTC), Domain Policy

ICANN is fighting a US court action that could see the ccTLDs of Iran, Syria and Korea being seized by victims of terrorism.

While ICANN has not been sued as such, it’s been named in three “writs of attachment”, which seek to force the organization to hand over control of .ir, .sy, .kp, سور, and ايران.

This audacious attempt to take over three nations’ domains is being attempted by lawyers representing victims of state-sponsored terrorism, reportedly led by Nitsana Darshan-Leitner.

Darshan-Leitner has secured billions of dollars worth of judgments against these states in US courts over the last decade.

But because the states won’t pay up, she’s been getting US courts to seize state-owned US-based assets, such as valuable real estate, instead.

Now her attention has turned to domain names.

The writs against ICANN, issued by a District of Columbia court a month ago, would force ICANN to hand over any assets belonging to Iran, Syria and Korea.

But ICANN says it cannot and should not be made to do so, filing hundreds of pages of court documents yesterday explaining why ccTLDs are not property that can be “attached”.

“Attachment” is a legal term used in the process of transferring assets from debtors to creditors.

In its defense, ICANN argues that allowing the seizure would do nothing less than jeopardize the globally interoperable internet:

First, a ccTLD simply is not “property” subject to attachment. Second, although operating for the benefit of the people of Iran, Syria and North Korea, respectively, the relevant ccTLDs are not “owned” by the defendants or anyone else, for that matter. Third, the .IR, .SY and .KP ccTLDs are not “located” in the District of Columbia or even the United States, and therefore are beyond the reach of Plaintiffs’ Writs of Attachment. Fourth, even if these ccTLDs could be characterized as “property in the United States of the defendants,” this Court would lack jurisdiction over these proceedings, according to the Foreign Sovereign Immunities Act. Fifth, ICANN does not unilaterally have the capability or authority to transfer the .IR, .SY or .KP ccTLDs to Plaintiffs. Finally, a forced transfer of the .IR, .SY and .KP ccTLDs would destroy whatever value may exist in these ccTLDs, would wipe out the hundreds of thousands of second-level domain names registered therein by various individuals, businesses and charitable organizations, and could jeopardize the single, global, interoperable structure the Internet.

“While we sympathize with what plaintiffs may have endured, ICANN’s role in the domain name system has nothing to do with any property of the countries involved,” ICANN general counsel John Jeffrey said in a statement.

In its motions to quash the writs, ICANN describes how it has no contractual relationship and few dealings with the three ccTLD managers in question and how it has received no money from them.

It goes on to describe its relationship to the DNS root zone and the US Department of Commerce

The motion then compares domain names to street addresses and not “property”:

a ccTLD can be thought of as a zip code. That zip code may encompass many different addresses, and those addresses in turn may correspond to certain places on the Internet that people can access, such as websites. But the street address itself is not property, nor is the zip code in which the street address exists…To the extent a ccTLD is capable of a legal definition, it is a collection of technical and administrative services, rather than property

There’s a bunch of US case law that states second-level domain names are not property, which ICANN draws on heavily in its motion.

I’m not going to dwell on the legal issues at stake here too much, but the case is politically, to use an inappropriate word, explosive.

If ICANN were to receive a court order, instructing it to transfer ownership of .ir to Darshan-Leitner’s group, and had no option but to comply, we’re looking at a major international political incident.

Under ICANN’s current IANA arrangement, ICANN-recommended changes to ccTLD management are handled by Verisign, but only with the consent of the US National Telecommunications and Information Administration.

The US Department of Commerce, of which NTIA is a part, would have to give its approval to the transfer of Iran’s ccTLD from an Iranian institution to an Israeli entity.

That, at a time when US-Iranian relations are softening, in light of the new ISIS crisis in Iraq.

It’s a recipe for putting the IANA contract at the center of what can mildly be described as a “political incident” unlike anything the internet has seen to date.

While the US government has a role in ccTLD redelegations today, due to its membership of the DNS root zone triumvirate, it has announced its intent to step away from IANA stewardship.

The NTIA will be replaced, possibly as early as September 2015, by a mechanism that the ICANN community has started to develop.

If we can assume that the US government’s current role may prove to be a buffer between the US courts and potentially devastating forced ccTLD redelegations, it’s not at all clear that the NTIA-replacement mechanism would hold the same kind of political clout.

Would an IANA without US stewardship be more susceptible to crazy US court rulings?

If the US court asserts its authority over the DNS root zone, by ordering the transfer of a ccTLD to a private entity, all ccTLD registries would have a right to be very nervous indeed.

The case also highlights the fact that ICANN is subject to US court jurisdiction — something likely to remain after the IANA stewardship transition — which also makes some nations very nervous.

Rumors have been floating around for a while that ICANN would like to move its headquarters and primary legal structure to Switzerland — it already has an office and a legal presence there — and this case will certainly provide ammunition for those who would like to see such a move happen.

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Comments (9)

  1. Berry says:

    I would need to find it, but I thought I recall a US case where second level names WERE recently considered property and considered subject to attachment. I don’t even recall the jurisdiction Clearly, much different than a TLD, but interesting nonetheless…..I will do some digging. Great post Kevin.

    • Reg says:

      I seem to recall this, as well. At least for in-country matters, a court can attach a domain name. What they need to prove is that any US court has jurisdiction over a [non-.us] ccTLD, which I don’t think has ever been proven (although argued). US courts have, however, claimed jurisdiction over SLDs in ccTLDs where the nameservers are in the US.

  2. Rubens Kuhl says:

    The plaintiffs should know better that these nations would only celebrate Internet presence of local citizens and media being cut-off… for those nations it’s win-win: less public criticism and an opportunity to say “told you so” about US supremacy of the Internet. Don’t expect their diplomats to run to save those ccTLDs, because they just want to watch the world burn.

  3. John Berard says:

    Kevin,

    It is the “District of Columbia” in the U.S., not Colombia, which, as we all know, is in South America.

    Berard

  4. “Property” is a highly context-sensitive notion and depends on the specific definition used in the respective context. In a recent research article focusing on the position acquired by new gTLD applicants, I have proposed the neutral term “gTLD right” instead of “property”.

    This phrase is intended to denote the contractually based bundle of rights in a gTLD string. My proposal is based on the finding that several other relevant concepts do not adequately describe the legal position of a successful gTLD applicant. In particular, it is difficult to claim that the applicant acquires a property right in the gTLD string. Moreover, while it is technically adequate to say that the gTLD is ‘delegated into the internet root’, the legal concept of ‘delegation’ does not adequately capture the contractual foundation of this bundle of rights.

    The situation for ccTLDs is however different and not addressed in my article.

    See further: A gTLD right? Conceptual challenges in the expanding internet domain namespace
    Int J Law Info Tech (2014) (Spring 2014) 22 (1): 27-48.
    http://ijlit.oxfordjournals.org/content/22/1/27

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