[Ws2-jurisdiction] [Common denominator] ISSUE: Jurisdiction over ccTLDs
parminder
parminder at itforchange.net
Mon Aug 28 02:54:17 UTC 2017
Thanks so much, Greg, I am greatly obliged...
Actually the deadlined slipped from my mind, and when I remembered it I
found myself without my laptop for an extended period of time.
On that note, it would really not be bad for the group to be reminded of
such important deadlines say 24 hours in advance. I normally see this
done in the groups that I work with. Closing the set of issues that will
be taken up by this group in my view is a really important deadline, and
no one should get excluded by default.
Best regards, parminder
On Monday 28 August 2017 05:14 AM, Greg Shatan wrote:
> 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
> <mailto: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 <mailto: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
> <mailto: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
> <mailto: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
> <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
> <http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001469.html>
> ; and
> http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001471.html
> <http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001471.html>
> ; and
> http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001441.html
> <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
> <mailto: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
> <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
> <mailto:ws2-jurisdiction-bounces at icann.org>
> > [ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>] em nome
> de farzaneh badii
> > [farzaneh.badii at gmail.com
> <mailto: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>
> > <mailto: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>
> > <mailto: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>
> > <mailto: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>
> >
> <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>>
> >
> [mailto: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>
> > <mailto: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>
> > <mailto: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>
> >
> <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 at icann.org>
> <mailto: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>
> >
> <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 at icann.org>
> <mailto: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>
> >
> <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 at icann.org>
> <mailto: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>
> >
> <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 at icann.org>
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
> <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 <mailto:Ws2-jurisdiction at icann.org>
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/ws2-jurisdiction/attachments/20170828/536028dd/attachment-0001.html>
More information about the Ws2-jurisdiction
mailing list