[CCWG-ACCT] Weinstein v. Iran

Thu Aug 4 19:32:32 UTC 2016

The ccTLDs have been adamantly opposed to ICANN having a copy of their databases.  This was a major bone of contention in ICANN’s early days.  When ICANN first started, Louis Touton was the IANA general manager — and several other roles as well — and he had made it a requirement for a ccTLD to send a copy of the zone before he would process change requests.  In late 2002, when I was still fairly new as SSAC chair, Stuart Lynn asked me to mediate the dispute between IANA and the ccTLDs.  It didn’t take long to realize that whatever positive value Louis had in mind was far outweighed by the concerns and resistance of the ccTLDs, and the practice was abandoned.  Even so, the mistrust of ICANN that resulted from that practice still echoes today in some quarters.  There is zero chance that ICANN would get involved in having copies of ccTLD databases much less attempting to run them.

Further, the idea that a court-ordered transfer of control could be carried out in a way that leaves the registrants unharmed sounds nice but I don’t know how to implement it.  It seems to me to be wishful thinking, tied to a theoretical construct but unrelated to reality.

Steve

> On Aug 4, 2016, at 3:02 PM, Mueller, Milton L <milton at gatech.edu> wrote:
> 
> I think the arrangements you describe would be sufficient to protect the third party interests of registrants under a TLD. More could also be done to ensure that in any such delegation, the new owner doesn’t impair the property and service interests of SLD registrants.
>  
> What I don’t understand is the court’s feeling that ICANN’s interest in the stability and interoperability of the DNS would be impaired by a legally mandated redelegation. I think that argument is just plain false. A redelegation does not create a compatibility issue. I don’t think the court understands what ICANN does and was overly swayed by hysterical USG amicus brief that claimed that the whole “model of internet governance” would be destroyed by a pro-plaintiff decision.
>  
> --MM
>  
> From: Diego R. Canabarro [mailto:diegocanabarro at nic.br <mailto:diegocanabarro at nic.br>] 
> Sent: Thursday, August 4, 2016 2:30 PM
> To: accountability-cross-community at icann.org <mailto:accountability-cross-community at icann.org>
> Cc: Mueller, Milton L <milton at gatech.edu <mailto:milton at gatech.edu>>; Phil Corwin <psc at vlaw-dc.com <mailto:psc at vlaw-dc.com>>; David Post <david.g.post at gmail.com <mailto:david.g.post at gmail.com>>
> Subject: Re: [CCWG-ACCT] Weinstein v. Iran
>  
> Excellent post, Milton. Do you think the ruling would have been different in case ICANN had any sort of direct access to the database (e.g.: through a escrow service provider)? Put it differently: in case ICANN had access to a full replication of the ccTLD database and could keep things running smoothly, do you the ruling should be different?
>  
> Best
> Diego
>  
> --
> Diego R. Canabarro
> Equipe de Assessoria do CGI.br <http://cgi.br/> / CGI.br <http://cgi.br/> Advisory Team <http://cgi.br/ <http://cgi.br/>>
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> diegocanabarro at nic.br <mailto:diegocanabarro at nic.br>
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> PGP Key 007A14F5
>  
> Em qui 04 ago 2016, às 18:15:56, Mueller, Milton L escreveu:
> > As some of you know we've been doing some serious research on this topic and
> > here is our take on the court decision:
> > http://www.internetgovernance.org/2016/08/04/plaintiffs-cant-seize-ir-court <http://www.internetgovernance.org/2016/08/04/plaintiffs-cant-seize-ir-court>
> > -rules/
> >
> > From: accountability-cross-community-bounces at icann.org <mailto:accountability-cross-community-bounces at icann.org>
> > [mailto:accountability-cross-community-bounces at icann.org <mailto:accountability-cross-community-bounces at icann.org>] On Behalf Of Phil
> > Corwin Sent: Wednesday, August 3, 2016 5:46 PM
> > To: David Post <david.g.post at gmail.com <mailto:david.g.post at gmail.com>>
> > Cc: 'CCWG-Accountability' <accountability-cross-community at icann.org <mailto:accountability-cross-community at icann.org>>
> > Subject: Re: [CCWG-ACCT] Weinstein v. Iran
> >
> > Paul:
> >
> > Greg Shatan raised the same quibble in a comment posted at the website, and
> > I replied as follows-
> >
> > Greg:
> > Thanks for the positive review of a hastily composed article. You are
> > correct that the court expressed an assumption that a ccTLD constituted an
> > attachable property interest, but did not decide that it was. While that
> > assumption might be cited in a future case involving TLD matters it
> > certainly has little to no weight. Further, courts might well decide that a
> > nation's interest in its ccTLD, which is independent of any contractual
> > relationship with ICANN, differentiates ccTLDs from gTLDs, which are
> > dependent on being awarded such a contract by ICANN and can be lost if the
> > registry operator commits a material breach of the registry agreement.
> > Finally, whether or not ccTLDs or gTLDs constitute some type of property
> > interest is a separate question from whether second level domains
> > constitute a form of property. So yes, it was a very interesting outcome
> > but in no way determinative on the TLD as property issue. Best, Philip
> >
> > You are correct that the Court took no position one way or another on
> > whether a TLD constitutes property, and leaves that issue for another case
> > at a later date.
> >
> > Very best, Philip
> >
> > Philip S. Corwin, Founding Principal
> > Virtualaw LLC
> > 1155 F Street, NW
> > Suite 1050
> > Washington, DC 20004
> > 202-559-8597/Direct
> > 202-559-8750/Fax
> > 202-255-6172/Cell
> >
> > Twitter: @VlawDC
> >
> > "Luck is the residue of design" -- Branch Rickey
> >
> > From: David Post [mailto:david.g.post at gmail.com <mailto:david.g.post at gmail.com>]
> > Sent: Wednesday, August 03, 2016 5:37 PM
> > To: Phil Corwin
> > Cc: Paul Rosenzweig; 'CCWG-Accountability'
> > Subject: Re: [CCWG-ACCT] Weinstein v. Iran
> >
> > At 09:37 AM 8/3/2016, Phil Corwin wrote:
> > Content-Language: en-US
> > Content-Type: multipart/alternative;
> >
> > boundary="_000_8E84A14FB84B8141B0E4713BAFF5B84E21188D2AExchangesierrac_"
> >
> > FYI, yesterday I published a short article on the decision which can be
> > found at
> > http://www.circleid.com/posts/20160802_court_of_appeals_avoids_doomsday_eff <http://www.circleid.com/posts/20160802_court_of_appeals_avoids_doomsday_eff>
> > ect_in_iran_cctld_decision/
> >
> >
> > One small-ish quibble: you write:
> >
> > "In reaching its decision, the Court opined (but did not decide) that a top
> > level domain constitutes an attachable property interest."
> >
> > Not sure that's strictly correct. I think "opined" implies that the court
> > expressed an opinion about the matter (without actually deciding it). But
> > I don't think it did express an opinion one way or the other; it simply
> > said that it would "assume" that the ccTLDs constitute property, without
> > really considering the matter, because it would have no impact on the
> > outcome. I know it's a nit ... but the question of whether TLDs are
> > "property" is sure to come up again, and I don't think this opinion is any
> > support at all - even weak support - for the notion that they are. David
> >
> >
> >
> > In it I state:
> > In my view, this result avoids the possibility of a major erosion of
> > confidence and participation in ICANN by ccTLD operators by making clear
> > that a respected Court of Appeals in the U.S. possesses adequate technical
> > understanding of the DNS to avoid a legal decision that could lead to
> > technical and political instability many nations would not wish to
> > continue in a DNS coordinated by a U.S. non-profit corporation if it could
> > be ordered by a U.S. court to transfer control of any nation's ccTLD. This
> > decision will also hopefully tamp down calls by some parties for ICANN's
> > place of incorporation to be moved outside of the U.S. by demonstrating
> > that ICANN's jurisdiction does not create a threat to other nation's
> > ccTLDs. Remaining jurisdiction issues will be addressed in work stream 2 of
> > ICANN's ongoing accountability process.
> >
> > Best regards to all
> >
> > Philip S. Corwin, Founding Principal
> > Virtualaw LLC
> > 1155 F Street, NW
> > Suite 1050
> > Washington, DC 20004
> > 202-559-8597/Direct
> > 202-559-8750/Fax
> > 202-255-6172/Cell
> >
> > Twitter: @VlawDC
> >
> > "Luck is the residue of design" -- Branch Rickey
> >
> > From:
> > accountability-cross-community-bounces at icann.org<mailto:accountability-cros <mailto:accountability-cross-community-bounces at icann.org%3cmailto:accountability-cros>
> > s-community-bounces at icann.org <mailto:s-community-bounces at icann.org>> [
> > mailto:accountability-cross-community-bounces at icann.org <mailto:accountability-cross-community-bounces at icann.org>] On Behalf Of Paul
> > Rosenzweig Sent: Wednesday, August 03, 2016 9:28 AM
> > To: 'CCWG-Accountability'
> > Subject: [CCWG-ACCT] Weinstein v. Iran
> >
> > For those following along in the effort to attach the .ir (and other)
> > ccTLDs, the appellate court issued an opinion yesterday affirming the
> > decision of the court below rejecting the effort to attach the domain
> > (albeit on different grounds). Here is a link to the opinion:
> > https://www.cadc.uscourts.gov/internet/opinions.nsf/D35ACE5F0E9673C08525800 <https://www.cadc.uscourts.gov/internet/opinions.nsf/D35ACE5F0E9673C08525800>
> > 3005094AE/$file/14-7193.pdf
> >
> > Paul
> >
> > Paul Rosenzweig
> > 509 C St. NE
> > Washington, DC 20002
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> > My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ <http://redbranchconsulting.com/who-we-are/public-pgp-key/>
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