[Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs

[Phil Corwin]

With all respect, while domain seizures by ICE and other US law enforcement agencies have been criticized by many within the US, this issue is entirely outside the jurisdiction of this Jurisdiction group as it has nothing to do with whether ICANN's US incorporation creates risk of undue interference in its policy decisions or technical operations, nor does it relate to other valid jurisdictional issues such as choice of law in ICANN contracts, or ICANN's non-US hubs and offices being subject to the laws of the nations in which they are located.

These domain seizures are not dependent on ICANN's US incorporation and could proceed in precisely the same manner if ICANN were incorporated in another jurisdiction, or if it did not exist at all.

While In Rem jurisdiction allows cases to proceed where In Personam jurisdiction is not available (that is, the person owning the property or assets at issue is outside the jurisdiction of the court) it still requires a presence in the US, some legally recognized nexus, to be effectively exercised - otherwise it would be an entirely futile undertaking as any court judgment could not be enforced.

The case of the Spanish travel company cited in your email was only able to proceed because, despite being engaged in an activity prohibited under US law, they nonetheless inexplicably chose to use a US registrar.  If they had utilized a Spanish or any other non-US registrar instead then the case would not likely have been brought because no judgment could be enforced against a party subject to US jurisdiction (presuming that the domains were not those of a US-based registry).

I just got off a GNSO Council call in which we received a staff update on the progress of WS2. Unfortunately, this subteam has made the least progress toward completing its work and is most in danger of failing to demonstrate sufficient progress at ICANN 60 to continue its activities. Given the notable lack of progress on matters that are clearly within our remit, and the real possibility of being declared a failed policy state, it is distressing to see new issues being proposed for consideration that lack any clear connection to ICANN jurisdictional issues.

Philip S. Corwin, Founding Principal
Virtualaw LLC
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From: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of parminder
Sent: Wednesday, August 23, 2017 10:29 PM
To: ws2-jurisdiction at icann.org
Subject: Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs


Thanks Jorge. Very interesting and relevant information. Importantly, also speaks to DN as property question, with clear legal codification in this regard.

These domain seizures are no less an important issue than OFAC, and cannot simply not be addressed by this group. And it has been argued from practically the first day in this group, but has been completely neglected.

What such seizures actually become are wholly inappropriate means of extension of US law globally. This has been done most till now for enforcement of extremely stringent US intellectual property laws globally, but can be done for other things. What it creates is a chilling effect, entities, including business, begin to make sure that they work within US laws, even when they may not have US as a main or significant place for doing business, or even not at all. This of course is wholly inappropriate, and to repeat, makes DNS an illegal weapon for global domination and control by the US.

It must be noted that domain names have been seized even in cases where a business had no US based end. This is a case of seizure by US gov of domain name of a Spanish travel company selling Cuban trips to a British citizen, though with embargo related intentions. https://arstechnica.com/information-technology/2008/03/us-interferes-with-travel-to-cuba/

US has made, or arranged for, property seizures in areas other than DNS, especially wrt trade in generic drugs, even when the business was being carried out between non US parties and never touching US territory.

I dont see how can this group simply ignore this most significant issue.

And I also see no case-by-case remedy for it. Only general immunity under the IOI Act, with the required negative list of exceptions, can address it.

parminder



On Wednesday 23 August 2017 08:34 PM, Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch> wrote:

"The domain name seizure process used by Operation In Our Sites was codified in 18 U.S.C. § 981(b)(2), which provides a legal framework for property seizures by the government. Before the seizure, government officials are supposed to investigate suspected websites to find out if they actually purchase or access counterfeit items. The government then contacts the copyright holders to confirm ownership of the intellectual property and suspected infringement. Following the investigation, ICE and NIPRCC officials present the resulting evidence to the U.S. Attorneys, and check the domain name registration.

If the domain name was registered in the U.S., the government petitions a magistrate judge to issue a seizure warrant for the domain name. With the warrant, the domain name's title and rights are transferred to the U.S. government. After the seizure, the government is supposed to send a written notice of the forfeiture deadline to the website operator within 60 days from the seizure date. The website owner can file the claim against the government within 35 days after receiving the notice. If the owner files a claim, the government has 90 days to prove that the property is subject to forfeiture. If the owner does not make a claim against the seizure, or the government successfully proves a valid seizure, the domain name is forfeited to the government.[9][10]"

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