[Ws2-jurisdiction] [Common denominator] ISSUE: Jurisdiction over ccTLDs
Greg Shatan
gregshatanipc at gmail.com
Sun Aug 27 11:20:01 UTC 2017
Parminder,
The deadline is 23:59 UTC today. This was in the email with the agenda for
this week's meeting and stated in the meeting as well.
Best regards,
Greg
On Sun, Aug 27, 2017 at 2:05 AM Parminder <parminder at itforchange.net> wrote:
> Whats the deadline to put in issues?
> I plan to post that of DN seizures by US agencies like the customs which
> has been discussed here.
>
> I need some time to do so since i am traveling and cant do it now. Thanks.
> Parminder
>
> On 25 August 2017 23:50:20 GMT+05:30, Olawale Bakare via Ws2-jurisdiction <
> ws2-jurisdiction at icann.org> wrote:
>>
>> All,
>>
>> Thank you, Thiago for your comment.
>>
>> Would I agree with you on your comment with respect to immunity? Should
>> we not worry about the unforeseeable future risks? Why not? And what are
>> these concerns?
>> I would want this group read the full presentation made by Sam Eisner
>> again. In the mean time here is the excerpt from the presentation:
>>
>>
>> *....So in general OFAC prohibits providing goods and services to
>> countries under sanctions and on the SDN list. So it implies generally
>> OFAC applies generally to those who fall under the jurisdiction of the
>> U.S. So businesses here or U.S. citizens. And if companies or people
>> don't comply, the repercussions are actually very high. So an not only can
>> there be fines that can go into the millions but this is actually a matter
>> of criminal liability in some cases. And so, you know, if a company like
>> ICANN were to not follow the OFAC requirements you could find an officer
>> going to jail for that...*
>>
>> Why not focus on the draft of the proposal to ICANN, detailing the
>> recommendation agreed on at yesterday's meeting, mirroring the OFAC
>> presentation of 1st August meeting. As well as the draft of the application
>> for general OFAC license for individuals, who are ICANN customers residing
>> in those affected countries on the SDN list.
>> Again, the chances of making a successful application should certainly be
>> hinged on not just the premise of the legal argument therein by the ICANN
>> legal team but the practical analysis around the complex DNS systems - Root
>> DNS Servers, TLD Servers, and Authoritative Servers.
>>
>>
>> With regards,
>> Wale
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> On 24 Aug 2017 19:39, "Thiago Braz Jardim Oliveira" <
>> thiago.jardim at itamaraty.gov.br> wrote:
>>
>> Dear Nigel,
>> Dear All,
>>
>> Thank you very much for your reply. I appreciate that you actually
>> understand and acknowledge the unsatisfactory situation that ICANN's
>> subjection to US enforcement jurisdiction put us in.
>>
>> In terms of US jurisdiction over ccTLDs, others and you and I seem to
>> agree that US organs can possibly interfere with ICANN's ccTLD management,
>> regardless of whether that has already happened, and that this puts in
>> peril ICANN's accountability towards all stakeholders, in their respective
>> roles, on an equal footing.
>>
>> I acknowledge your concern that we should be careful not to leave ICANN
>> free from liability as we recommend that ICANN obtain immunity from US
>> jurisdiction in respect of ICANN's ccTLD management. To ensure that this
>> does not happen, I believe we all concur that ICANN's own accountability
>> mechanisms should be in place and functioning and satisfy the expectations
>> of all stakeholders.
>>
>> In view of the above, and also based on the most valid point made by
>> Bernard Turcotte in our online meeting of yesterday (#43), which I detail
>> below, I am confident we can agree on some mutually acceptable language
>> addressing the issue we've been discussing in this email thread.
>>
>> In our online meeting of yesterday (#43), Bernard appropriately noted,
>> with general support from the participants, that in making our
>> recommendation, "we should be looking at what are the outcomes we're
>> looking for and less trying to be very specific about how to implement it."
>> For practically mandatory reasons, and I invite you to read Bernard's
>> brilliantly reasoned explanation in the transcript, as we recommend that
>> ICANN reach such objectives as of obtaining immunity, "it's fine to ask
>> ICANN to study this and come back with some concrete facts and estimates
>> and then the community can decide that”.
>>
>> Accordingly, despite the disagreements that there might be, to use
>> Nigel's words, on "how to design immunity in a way that does not immunise
>> ICANN from liability for arbitrary or unlawful actions" in respect of
>> ICANN's ccTLD management, we have already reached the point where we can
>> recommend ICANN to
>>
>> (i) seek immunity from US jurisdiction in respect of ICANN's ccTLD
>> activities, so that ICANN could neither be made defendant in domestic court
>> proceedings that aim, for example, to force ICANN to re-delegate a ccTLD,
>> nor be subject of enforcement measures by domestic agencies that interferes
>> with ICANN's ccTLD management; and
>>
>> (ii) maintain and further develop its own accountability mechanisms,
>> through the appropriate bottom-up multi-stakeholder policy development
>> process, to ensure that ICANN can be held liable for its ccTLD management
>> activities.
>>
>> The above proposal is practical and should reflect the constructive input
>> we have received so far on the issue, to an extent agreeable to the
>> different stakeholders. The approach that has led us to it, and I thank
>> Bernard Turcotte for proving its necessity, should also lead us to positive
>> results with respect to the other issues.
>>
>> [For the transcript of meeting #43 where Bernard's point was made, see:
>> https://community.icann.org/download/attachments/69272141/CCWG-WS2%20JURISDICTION%20SUBGROUP_08232017-FINAL-en.pdf?version=1&modificationDate=1503589760000&api=v2
>> ; for useful exchanges within this email thread, please see:
>> http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001469.html ;
>> and
>> http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001471.html ;
>> and
>> http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001441.html ]
>>
>> I look forward to your reaction to the above, which I trust will be
>> positive.
>>
>> Best regards,
>>
>> Thiago
>>
>>
>>
>> ________________________________________
>> De: Nigel Roberts [nigel at channelisles.net]
>> Enviado: quarta-feira, 23 de agosto de 2017 12:44
>> Para: Thiago Braz Jardim Oliveira; farzaneh badii
>> Cc: ws2-jurisdiction
>> Assunto: Re: RES: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over
>> ccTLDs
>>
>> Thiago
>>
>> Framing this teleologically as you have done below, goes a long way to
>> advancing your argument while mitigating the knee-jerk reaction that I
>> and others, invariably have to any suggestion that ICANN staff and board
>> might receive immunity for their actions.
>>
>> It's a reasonable argument to put forward.
>>
>> It would not, in fact, have been necessary had ICANN been incorporated
>> in Switzerland or some other aggressively neutral place, as I argued for
>> long ao.
>>
>> But it is where it is.
>>
>> The concern that US organs can possibly interfere with ICANN's ccTLD
>> management is reasonable.
>>
>> But so is the concern that ICANN itself can interfere in the management
>> of ccTLDs.
>>
>> The former, whilst a valid concern has not happened.
>>
>> The latter has.
>>
>> How do you design immunity in a way that does not immunise ICANN from
>> liability for arbitrary or unlawful actions?
>>
>>
>>
>> On 23/08/17 15:39, Thiago Braz Jardim Oliveira wrote:
>> > Dear Farzaneh,
>> > Dear All,
>> >
>> > Thank you very much for your reply. I will try to clarify the proposal I
>> > submitted a bit further, which may help us better frame the discussion
>> > from my point of view.
>> >
>> > The proposal, as I see it, is not to obtain 'property' immunity for
>> > ccTLDs, or immunity from seizure or attachment. As you rightly
>> > suggested, if we were getting into that, we would perhaps also get into
>> > discussions about the status of ccTLDs, whether they are an expression
>> > of 'sovereign' rights or not, etc. But we don't need to.
>> >
>> > Instead, the proposal is that ICANN (not the ccTLD manager) obtains
>> > jurisdictional immunity in respect of ICANN's activities relating to the
>> > management of ccTLDs. The effect is that ICANN could not be made
>> > defendant in domestic court proceedings that aim, for example, to force
>> > ICANN to re-delegate a ccTLD. This is on the understanding that no
>> > single country is entitled to exercise jurisdiction over ICANN in ways
>> > that interfere with ICANN's management of other countries' ccTLDs. I
>> > hope I have provided the rationale for this understanding in the e-mail
>> > where I described the issue and proposed solutions.
>> >
>> > As to the apparent controversy about whether ccTLDs are property, again,
>> > strictly we may not need to get into that. My point relating to 'in rem
>> > jurisdiction' was therefore perhaps unnecessary, but the idea was to
>> > point to an existing practice in the US where domestic courts (and
>> > enforcement agencies) have found to have authority to interfere with
>> > domain names (and arguably ccTLDs) based on the 'location' of the
>> > 'domain name authority', as is ICANN, in the US. (I had previously
>> > touched on these points
>> > here:
>> http://mm.icann.org/pipermail/ws2-jurisdiction/2017-May/001003.html).
>> >
>> > Perhaps this was unnecessary. The main point is instead this: currently,
>> > it has been open to the organs of the single country with exclusive
>> > authority to enforce jurisdiction in respect of ICANN's ccTLD management
>> > activities (US exclusive territorial jurisdiction) the possibility of
>> > deciding that they will, or that they will not, interfere with such
>> > ICANN's activities. And regardless of the reason they invoke to legally
>> > justify their interference, however justifiable it may be from a
>> > domestic law point of view (because, say, ccTLDs are property or they
>> > have 'in rem jurisdiction'), the point is that it should not up to the
>> > organs of any country to chose and decide on the reasons to interfere,
>> > and then interfere, with ICANN's management of other countries' ccTLDs.
>> >
>> > It is because US organs can possibly interfere with ICANN's ccTLD
>> > management, as an expression of US exclusive enforcement jurisdiction
>> > over things or activities performed in US territory, that it is
>> > necessary to recommend that ICANN obtains immunity in respect of its
>> > ccTLD management activities. Any measure that clearly rules out that
>> > possibility, in turn, for it to meet ICANN's accountability goals
>> > towards all stakeholders, should not be left to unilateral decisions of
>> > the organs of one State, or to the vagaries of US jurisprudence, however
>> > uniform and constant it might be.
>> >
>> > Best regards,
>> >
>> > Thiago
>> >
>> >
>> >
>> > ------------------------------------------------------------------------
>> > *De:* ws2-jurisdiction-bounces at icann.org
>> > [ws2-jurisdiction-bounces at icann.org] em nome de farzaneh badii
>> > [farzaneh.badii at gmail.com]
>> > *Enviado:* quarta-feira, 23 de agosto de 2017 9:07
>> > *Para:* Nigel Roberts
>> > *Cc:* ws2-jurisdiction
>> > *Assunto:* Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs
>> >
>> > In the .IR case, the court did not decide on whether ccTLD is a property
>> > or not. Anyhow, I do not think we should go into that discussion. I
>> > think the important thing to find out is whether the court case in .IR
>> > is precedential.
>> >
>> > I don't think the second part of your solution would work Thiago, if
>> > jurisdictional immunity is not granted to ccTLDs ( I don't know how we
>> > can get such jurisdictional immunity and don't forget that some ccTLD
>> > managers are totally private and not government run).
>> >
>> > The below might not be enforceable:
>> >
>> > "ICANN Bylaws an exclusive choice of forum provision, whereby disputes
>> > relating to the management of any given ccTLD by ICANN shall be settled
>> > exclusively in the courts of the country to which the ccTLD in question
>> > refer."
>> >
>> > First of all not many ccTLDs have contracts with ICANN. Secondly, in
>> > third party claims or disputes, for example in case of initiating
>> > attachment of a ccTLD as an enforcement of a monetary compensation, this
>> > clause might be challenged and might very well be ineffective.
>> >
>> >
>> >
>> > Farzaneh
>> >
>> > On Wed, Aug 23, 2017 at 7:05 AM, Nigel Roberts <nigel at channelisles.net
>> > <mailto:nigel at channelisles.net>> wrote:
>> >
>> > You can make such assertions all you like, but it doesn't make it
>> > necessarily so.
>> >
>> > The best I can offer by way of certainty in the matter is "we don't
>> > really know, but we can take some guesses".
>> >
>> > The difference between the DNS and spectrum is that spectrum exists
>> > per se. The DNS only exists becuase it was designed and constructed.
>> >
>> > I could start a different DNS tomorrow. It would not get wide use,
>> > but it would not differ in any way from the existing DNS.
>> >
>> > Furthermore possible new technologies can outdate the current DNS
>> > (I'm thinking of blockchain) just like SMTP outdated and made X.400
>> > useless.
>> >
>> >
>> >
>> >
>> > On 23/08/17 11:52, Arasteh wrote:
>> >
>> > Dear All
>> > ccTLD at any level shall not be considered as property or
>> > attachment at all.
>> > gTLD including ccTLD are resources like orbital /spectrum which
>> > are not at possession of any entity but could be used under
>> > certains rules and procedure established for such use
>> > Any action by any court to consider it as attachment is illegal
>> > and illegitimate as DNS shall not be used as a political vector
>> > or means against any people covered under that DNS.
>> > Being located in a particular country does I no way grant /
>> > provide any legal or administrative or judicial right to that
>> > country . DNS is a universal resources belong to the public for
>> > use under certains rules and procedure and shall in no way be
>> > used asa vehicle for political purposes.
>> > We need to address this issue very closely and separate
>> > political motivation from technical use.
>> > Regards
>> > Kavouss
>> > Sent from my iPhone
>> >
>> > On 23 Aug 2017, at 08:52, <Jorge.Cancio at bakom.admin.ch
>> > <mailto:Jorge.Cancio at bakom.admin.ch>>
>> > <Jorge.Cancio at bakom.admin.ch
>> > <mailto:Jorge.Cancio at bakom.admin.ch>> wrote:
>> >
>> > Dear all,
>> >
>> > please excuse my ignorance, but have domain names not be
>> > seized as "assets" or "property" in the US under the
>> > application of domestic law?
>> >
>> > Wikipedia info is here:
>> > https://en.wikipedia.org/wiki/Operation_In_Our_Sites
>> > <https://en.wikipedia.org/wiki/Operation_In_Our_Sites>
>> >
>> > If a second level domain is subject to potential seizure,
>> > why not a TLD?
>> >
>> > Regards
>> >
>> > Jorge
>> >
>> > -----Ursprüngliche Nachricht-----
>> > Von: ws2-jurisdiction-bounces at icann.org
>> > <mailto:ws2-jurisdiction-bounces at icann.org>
>> > [mailto:ws2-jurisdiction-bounces at icann.org
>> > <mailto:ws2-jurisdiction-bounces at icann.org>] Im Auftrag von
>> > Nigel Roberts
>> > Gesendet: Mittwoch, 23. August 2017 08:44
>> > An: ws2-jurisdiction at icann.org
>> > <mailto:ws2-jurisdiction at icann.org>
>> > Betreff: Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction
>> > over ccTLDs
>> >
>> > Milto
>> >
>> > There is no authority at all for this Claim, in law, as I
>> > suspect you know.
>> >
>> > As I suspect you also know very well, the nearest evidence
>> > that might support such a Claim is that one of the
>> > contentions in /Weinstein/ was that a ccTLD (three of them,
>> > if I remember correctly) could be garnished under the "state
>> > law" of DC. (I know technically, DC is not a state of the
>> > Union, but I don't know the US correct term-of-art for
>> > 'state or capital region')
>> >
>> > Unfortunately or fortunately (depending on one's point of
>> > view) it was not necessary for the Court to decide on this
>> > claim by the Judgment Debtor. This means that the idea that
>> > US courts might either have either or both of :-
>> >
>> > (a) legal jurisdiction over the ownership of the rights
>> > represented by a ccTLD delegation
>> >
>> > (b) the desire to exercise such (lack of desire to address a
>> > particular contention usually leads judges in common-law
>> > systems to be able conveniently to find a creative ratio
>> > that finds other reasons that the case can be decided
>> >
>> > remains a completely open question.
>> >
>> > It seems to me that additional hints for future litigants
>> > (as you know, common-law judges do that too) appear to have
>> > been given in the Weinstein judgment as to whether the
>> > rights in law enjoyed by a ccTLD manager (whatever they
>> > might be) MIGHT constitute property or not, but this remarks
>> > don't even amount to /obiter dictum/ - they are just hints
>> > at a possible road of future judicial travel and any court
>> > seised of a future Claim is entirely free to ignore them.
>> >
>> > And, even so, those hints don't address the question of /in
>> > rem/ at all.
>> >
>> >
>> > As you can see, I (along with some others in the ccTLD
>> > community) havefollowed, and analysed this case carefully
>> > and in some detail.
>> >
>> > We are aware of no other possible legal authority that
>> > addresses whether ccTLDs are property (let alone whether
>> > that property, if it is property, is subject to /in rem/
>> > jurisidiction).
>> >
>> > Unless others have additional information?
>> >
>> >
>> >
>> >
>> > Nigel Roberts
>> >
>> > PS: I would also commend others to read Farzaneh and
>> > Milton's ccTLD paper.
>> >
>> >
>> > On 22/08/17 22:31, Mueller, Milton L wrote:
>> >
>> >
>> >
>> >
>> > Issue 3: In rem Jurisdiction over ccTLDs
>> >
>> >
>> >
>> > Description: US courts have in rem jurisdiction over
>> > domain names as a
>> > result of ICANN's place of incorporation
>> >
>> >
>> >
>> > What is the evidence for this claim?
>> >
>> > --MM
>> >
>> >
>> >
>> > _______________________________________________
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>> >
>> >
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>>
> --
> Sent from a phone. Please excuse brevity and typos.
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