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

Thu Aug 24 18:15:38 UTC 2017

Dear Phil,
could you please clarify whether the legal basis/fundament discussed in the ".ir" case is the same as the one contained in 18 U.S.C. § 981(b)(2), which provides a legal framework for property seizures by the government?
thanks in advance
Jorge

________________________________

Von: Phil Corwin <psc at vlaw-dc.com>
Datum: 24. August 2017 um 19:55:36 MESZ
An: parminder <parminder at itforchange.net>, ws2-jurisdiction at icann.org <ws2-jurisdiction at icann.org>
Betreff: Re: [Ws2-jurisdiction] [EXTERNAL] Re: ISSUE: In rem Jurisdiction over ccTLDs

With the .IR decision in the DC Circuit as precedent, the probability of a US court seeking to order ICANN to take adverse action against a ccTLD at the top level approaches zero. Further, and this is a personal view, other than perhaps .KP, if a US court was ever going to take adverse action against a ccTLD it would have been against .IR yet it chose not to do so – in large part because, as Milton pointed out, “the court decided that court-ordered seizure of the ccTLD would impair the interest of ICANN in a globally acceptable delegation process and possible also impair the interest of its registrants”. Indeed, one could say that ICANN’s US domicile and historic (pre-transition) relationship with the US government benefitted the .IR ccTLD.

As for second level ccTLD domains, under the ACPA there can be no effective exercise and enforcement of its In Rem proceedings unless the ccTLD’s operation is conducted by a US-based registry operator or the domain registrant has chosen to utilize a US-based registrar. So there is no issue for ccTLDs operated by or within their associated nation where the domains are registered via a non-US party.

While nothing is ever impossible, IMHO this WG should not expend continued time and resources addressing highly improbable scenarios when it is flirting with being declared a  failed policy exercise if it does not up its game and meet certain benchmark requirements by ICANN 60, which is only two months away.

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: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-bounces at icann.org]On Behalf Of parminder
Sent: Thursday, August 24, 2017 12:16 PM
To: ws2-jurisdiction at icann.org
Subject: Re: [Ws2-jurisdiction] [EXTERNAL] Re: ISSUE: In rem Jurisdiction over ccTLDs

On Thursday 24 August 2017 08:14 PM, Phil Corwin wrote:
As I just pointed out in a prior email, the exercise of In Rem jurisdiction still requires some party related to the domain (registry or registrar) to be subject to US jurisdiction. So unless a nation has its ccTLD operated by a US-based entity, and unless a ccTLD registrant has opted to use a US-based registrar, this is a non-issue for ccTLDs.

That US based party is ICANN, the owner of the DNS root. This fact enables In Rem jurisdiction.

Also, as I pointed out, this In Rem jurisdiction is completely independent of ICANN’s incorporation and even its existence.

I am sorry if I  sound flippant, but seriously, this sentence to me appears to be in contradiction to what you say above. For, it is because DNS root owner, ICANN is in the US, and not immune from its jurisdiction, In Rem jurisdiction comes into picture, which you rightly say "still requires some party related to the domain to be subject to US jurisdiction", if only for enforcement of any judicial writ.

parminder

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:ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org> [mailto:ws2-jurisdiction-bounces at icann.org]On Behalf Of Mueller, Milton L
Sent: Thursday, August 24, 2017 10:39 AM
To: ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
Subject: Re: [Ws2-jurisdiction] [EXTERNAL] Re: ISSUE: In rem Jurisdiction over ccTLDs

Yes, Becky this is correct, ACPA is an anti-cybersquatting law for trademark protection and was written with second-level domains in mind.
I guess it is possible that a gTLD would be subject to ACPA – but if and only if someone managed to cybersquat a trademark in the TLD level. And since ICANN’s TLD awarding process is so heavily biased toward trademark owners, it is unlikely that a TM-violating TLD (say, giving .IBM to Parminder) would ever happen. But if it did, I supposed it could be applied. I can’t see how it could ever be applied to a ccTLD.

From:ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org> [mailto:ws2-jurisdiction-bounces at icann.org]On Behalf Of Burr, Becky via Ws2-jurisdiction
Sent: Tuesday, August 22, 2017 7:02 PM
To: Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>;jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>; thiago.jardim at itamaraty.gov.br<mailto:thiago.jardim at itamaraty.gov.br>; ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
Subject: Re: [Ws2-jurisdiction] [EXTERNAL] Re: ISSUE: In rem Jurisdiction over ccTLDs

Fwiw, to the extent that US courts have in rem jurisdiction over domain names, my recollection is that is a function of very specific anti-squatting trademark law and is extremely unlikely to apply to ccTLDs.

J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW DC 20006
Office: +1.202.533.2932  Mobile: +1.202.352.6367

_______________________________________________

Ws2-jurisdiction mailing list

Ws2-jurisdiction at icann.org<mailto:Ws2-jurisdiction at icann.org>

https://mm.icann.org/mailman/listinfo/ws2-jurisdiction