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

Thu Aug 24 19:31:27 UTC 2017

Dear Phil,
Thanks for your kind response - very much appreciated :-)
I'll need to sleep over this... if it is difficult for you to have an opinion - imagine for me 😬
best regards
Jorge

________________________________

Von: Phil Corwin <psc at vlaw-dc.com>
Datum: 24. August 2017 um 21:27:02 MESZ
An: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch>, ws2-jurisdiction at icann.org <ws2-jurisdiction at icann.org>, parminder at itforchange.net <parminder at itforchange.net>
Betreff: RE: [Ws2-jurisdiction] [EXTERNAL] Re: ISSUE: In rem Jurisdiction over ccTLDs

Jorge:

The complete US Code can be accessed at http://uscode.house.gov/  .

Section 981 of Title 18 (Crimes and Criminal Procedure) relates to Civil Forfeiture. The specific subsection you cite states:

                (b)(2) Seizures pursuant to this section shall be made pursuant to a warrant obtained in the same manner as provided for a search warrant under the Federal               Rules of Criminal Procedure, except that a seizure may be made without a warrant if-

                (A) a complaint for forfeiture has been filed in the United States district court and the court issued an arrest warrant in rem pursuant to the Supplemental    Rules for Certain Admiralty and Maritime Claims;

                (B) there is probable cause to believe that the property is subject to forfeiture and-

                (i) the seizure is made pursuant to a lawful arrest or search; or

                (ii) another exception to the Fourth Amendment warrant requirement would apply;

Let me state up front that I have no specific expertise in Federal criminal law and that I am neither able nor willing to provide an opinion as to whether a ccTLD could be considered a type of property subject to seizure under the complex provisions of subsection a of 981 (if it is not then section b is of no consequence); but it seems that the ccTLD would at least have to be alleged to be directly involved in a type of criminal covered by subsection a, or to have been obtained with the proceeds of covered criminal activity, to be subject to this statute.

The specific provision you cite states that a seizure must be made pursuant to the same procedure as is used for obtaining a search warrant unless the seizure is made pursuant to a lawful arrest or search (and I'm trying to envision how a foreign ccTLD might be subject to arrest or search by US law enforcement, but it's really not clear) or under another exception to the Fourth Amendment of the US Constitution, which generally requires that any search or seizure be carried out under a court-issued warrant.

Again, I'm in no position to opine whether a ccTLD could be held to constitute a type of property subject to seizure under Section 981. But I am able to state that this provision of US criminal law is entirely different from the statute used by plaintiffs in the Weinstein case. At the time that decision was issued in April 2016 I published a brief article on it at  http://www.circleid.com/posts/20160802_court_of_appeals_avoids_doomsday_effect_in_iran_cctld_decision/ . That article quotes and highlights the key portions of the court's decision, and I’d urge all the members of this subteam to review that opinion if they have not already done so.

Given the strength of that opinion, and the fact that it was issued by a US court regarded as second only to the Supreme Court in stature, it is very difficult to envision a different US court in a  different case ordering ICANN to transfer control of a ccTLD.

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

-----Original Message-----

From: Jorge.Cancio at bakom.admin.ch [mailto:Jorge.Cancio at bakom.admin.ch]

Sent: Thursday, August 24, 2017 2:16 PM

To: Phil Corwin; parminder at itforchange.net; ws2-jurisdiction at icann.org

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

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

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