[Ws2-jurisdiction] [Common denominator] ISSUE: Jurisdiction over ccTLDs
Greg Shatan
gregshatanipc at gmail.com
Sun Aug 27 23:44:32 UTC 2017
All,
Since I have not seen a submission from Parminder since his inquiry, I'm
going to* extend the deadline by 24 hours to *23:59 UTC* on *Monday, August
28, 2017 so that Parminder can have the opportunity to submit his
contribution.
Greg
On Sun, Aug 27, 2017 at 7:20 AM, Greg Shatan <gregshatanipc at gmail.com>
wrote:
> 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
>>> >
>>> >
>>> >
>>> > _______________________________________________
>>> > Ws2-jurisdiction mailing list
>>> > Ws2-jurisdiction at icann.org
>>> > <mailto:Ws2-jurisdiction at icann.org>
>>> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>> > <https://mm.icann.org/mailman/listinfo/ws2-
>>> jurisdiction>
>>> >
>>> > _______________________________________________
>>> > Ws2-jurisdiction mailing list
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>>> icann.org>
>>> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>> > <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
>>> > _______________________________________________
>>> > Ws2-jurisdiction mailing list
>>> > Ws2-jurisdiction at icann.org <mailto:Ws2-jurisdiction@
>>> icann.org>
>>> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>> > <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
>>> >
>>> >
>>> > _______________________________________________
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>>> > Ws2-jurisdiction at icann.org <mailto:Ws2-jurisdiction at icann.org>
>>> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>> > <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
>>> >
>>> >
>>> _______________________________________________
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>>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>>
>>>
>>>
>> --
>> Sent from a phone. Please excuse brevity and typos.
>> _______________________________________________
>> Ws2-jurisdiction mailing list
>> Ws2-jurisdiction at icann.org
>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
>>
>
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