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Judge blocks seizure of Iran’s ccTLD

Kevin Murphy, November 13, 2014, Domain Policy

ICANN has won a court battle, and avoided a major political incident, over an attempt by terrorism victims to seize ccTLDs belonging to Iran, Korea and Syria.

A District of Columbia judge ruled this week that while ccTLDs may be a form of “property” under the law, they’re not “attachable” property.

Attachment is a legal concept used when creditors attempt to seize assets belonging to debtors.

The ruling overturns a request by a group of terrorism survivors, led by attorney Nitsana Darshan-Leitner, to have .ir, .sy, .kp, سور, and ايران. transferred to them in lieu of payment of previous court rulings.

Darshan-Leitner has previously secured US court judgments amounting to hundreds of millions of dollars against the three nations. Because the nations have not paid these penalties, she’s been using the courts to seize state-owned assets in the US instead.

But US District Judge Royce Lamberth ruled (pdf) earlier this week:

the country code Top Level Domain names at issue may not be attached in satisfaction of plaintiffs’ judgments because they are not property subject to attachment under District of Columbia law.

However, he added in a footnote:

But the conclusion that ccTLDs may not be attached in satisfaction of a judgment under District of Columbia law does not mean that they cannot be property. It simply means that they are not attachable property within this statutory scheme.

Drawing on “sparse” case law, Lamberth’s rationale appears to be that domain names are not a product, they’re a service. He wrote:

The ccTLDs exist only as they are made operational by the ccTLD managers that administer the registries of second level domains within them and by the parties that cause the ccTLDs to be listed on the root zone file. A ccTLD, like a domain name, cannot be conceptualized apart from the services provided by these parties. The Court cannot order plaintiffs’ insertion into this arrangement.

The ruling, which may of course be challenged by the plaintiffs, helps ICANN and the US government avoid a huge political embarrassment at a time when the links between the two are being dissolved and relations with Iran are defrosting.

Terror victims try to seize five ccTLDs

Kevin Murphy, July 30, 2014, 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.

Nuclear Iran campaign group sends ICANN list of demands (and they’re really, really stupid)

Kevin Murphy, September 19, 2012, Domain Policy

The campaign group United Against Nuclear Iran has called on ICANN to switch off internet access to Iran, due to an apparent misunderstanding of what it is ICANN does.

In a letter sent earlier this month and published yesterday, UANI told ICANN to “immediately cease and desist” from providing “ICANN/IANA access” to Iranian entities covered by US and EU sanctions.

The group is worried that these organizations are using the internet to help Iran with its goal of creating nuclear weapons.

The letter states:

Absent access to ICANN/IANA, the dictatorial regime of Iran would be severely impeded in pursuing its illegal and amoral activities. For each day that you knowingly continue to provide Iran sanction-designated persons and entities access to the worldwide web, ICANN/IANA will be increasingly complicit in the IRGC and Iranian regime’s nefarious behavior. ICANN/IANA must stop transacting with such Iranian entities and persons and deny them access to Unique Web Identifiers, and therefore, the worldwide web.”

The letter is stupid on so many levels it’s difficult to know where to begin.

It appears to assume that ICANN has the power and ability to shut down certain individual .ir and .com domain names, which are registered to and used by sanctioned entities.

The letter (pdf) states:

Prominent sanction-designated Iranian entities have acquired .ir Unique Internet Identifiers from ICANN/IANA through the RIPE NCC. For example, Iran’s nuclear brain trust, Malek Ashtar University holds the http://www.mut.ac.ir/ address. Major Iranian banks, including the country’s central bank, maintain active websites (e.g. http://www.cbi.ir, http://www.bank-maskan.ir, http://www.bmi.ir and http://www.banksepah.ir). Further, Khatam al-Anbia, which serves as the IRGC’s engineering arm with over 812 subsidiaries and is heavily involved in the construction of the Qom/Fordow nuclear weapons facilities, holds the web address of http://www.khatam.com. These sanction-designated entities could not gain such web access without ICANN/IANA.

You’ll immediately notice that UANI seems to think that RIPE NCC hands out .ir addresses, which it does not. RIPE is a Regional Internet Registry that deals exclusively with IP address blocks.

ICANN doesn’t have the power to shut down individual domains either. It has powers over the root zone — top-level domains — not second-level domains in individual TLDs.

Nor does ICANN appear to work with any of the organizations on the US list of sanctioned entities.

The .ir ccTLD is delegated to the Tehran-based Institute for Research in Fundamental Sciences, which is not sanctioned.

ICANN could, feasibly, shut down the whole of .ir, as long as Verisign and the US Department of Commerce — which have ultimate control over the root — played along, but that seems like overkill.

Is UANI asking ICANN to shut down the whole of the .ir space?

Apparently not. In fact, the group condemns censorship and appears to support the ability of regular Iranian citizens to access a free, unfettered internet. The letter states:

Unfortunately, ICANN/IANA and the Unique Internet Identifiers that it provides are misused by the sanction-designated Iranian entities and persons to facilitate their illicit operations, activities and communications including support for Iran’s rogue nuclear weapons program, Iran’s sponsorship of terrorism around the world, and the Iranian regimes brutal crackdown against its own people. Disturbingly, that crackdown includes the ruthless censorship of the Internet and other communication access, and the use of tracking technology to monitor, torture and kill freedom seeking dissidents.

Simply put, ICANN/IANA should not provide the internet communications means that the Iranian regime and the IRGC misuses to censor and deny Internet freedoms to its people, much less to support Iran’s illicit nuclear program or its sponsorship of terrorism.

A second, more or less identical letter (pdf) sent to RIPE NCC accused the organization of being the country-code manager for .ir, apparently based on a misunderstanding of this web page.

Netherlands-based RIPE has already responded, saying:

The RIPE NCC is in contact with the Dutch Ministry of Foreign Affairs to ensure that we operate in accordance with Dutch law and all applicable international sanctions. Our advice from the Ministry has been that the RIPE NCC is not in violation of these sanctions. However, we will investigate in cases where new information is provided to us and we will ensure that changing circumstances do not place the RIPE NCC in violation of sanctions.

UANI could have avoided embarrassing itself with a couple of phone calls, and I have to wonder why it did not.

Possibly because it can get New York Times column inches simply by throwing around accusations.