[Ws2-jurisdiction] Issue: Domain seizures by US executive agencies like US customs

[parminder]

On Monday 28 August 2017 01:11 PM, Nigel Roberts wrote:
> Parminder
>
> Nothing is "obvious".
>
> You are making a submission, and you have offer us no actual authority
> for this, other than analogy.

Would you strength the security of your house on the "analogy" that
there has been a burglary in the neighbourhood, or should you want for
proven instance of someone breaking into your house before you do so......
>
> What you say is *possible*. But it's not CERTAIN, or even probable.

Like is is not certain that your house wil be burgled , and on any given
day the probability also in fact is pretty low...
>
> The only authority we have for this, which is Weinsteain, on appeal,
> seems to indicate that courts, equally likely would prevent the
> seizure of TLDs, on public policy grounds.

The court took up jurisdiction, and also accepted to treat gtld as
sieze-able property, these are the two most important facts of the case.
On balance of interests involved, and respective harms and benefits, it
decided in a certain manner given certain contingent conditions. Other
set of conditions could provide the opposite order, possible of ordering
seizure, given that the powers to do so have been asserted.
>
> And there is a significant distinction here between ccTLDs and gTLDs.

Yes, and so?
>
> So, please, let us not try and build scaffolding when the sky is not
> falling.

It is not falling on your world and interests and they are currently
organised, it is falling on other people's. Participation in public
policy processes require a sense of justice and fairness for all ...
parminder


>
>
> On 28/08/17 03:31, parminder wrote:
>>
>> Issue:
>>
>> US customs have routinely seized domain names belonging to foreign
>> entities, whose owners in their view violate US law. This has mainly
>> been done for alleged violation of intellectual property law, but could
>> have been done for other laws as well, and certainly can be so done in
>> the future. Till now all cases were such as having second level domain
>> names with US based registries, most often Verisign, which runs the .com
>> registry. Therefore US Custom have forced the agency that could help
>> them seize domain names, ie the concerned US based registry". It is
>> obvious that if the "violating" foriegn entity were to own a gTLD --
>> which is increasingly likely with the great onrush on gTLDs -- US Custom
>> will force ICANN as the "registry" of gTLDs in the same way they earlier
>> acted on US based registries. In the eyes od a US executive agency,
>> there is no legal difference in this regard, for enforcement assistance
>> purpose, between a US based business and a US based non profit like
>> ICANN.
>>
>> Further, it is not just the actual seizure that is the problem. Law
>> exist much more in observance than defiance, and thus visible punishment
>> ensuing from it. Global companies that take on gTLDs, as many are
>> expected to, will experience the "chilling effect
>> <https://en.wikipedia.org/wiki/Chilling_effect>", whereby they already
>> begin to subject their actions to US laws fearing US enforcement powers
>> exercised thorugh the gTLD route. Thereby the global DNS becomes an
>> illegitimate and undemocratic way of extending US law globally.
>>
>> Solution:
>>
>> I do not think any specific exceptions to any organisation or class of
>> actions is even theoritically available under the laws under which US
>> custom makes these seizures. In the circumstances, the only solution is
>> a general immunity under the US International Organisations Immunities
>> Act, with proper customisation and exceptions for ICANN to enable to be
>> able to perform its organisational activities from within the US. The
>> chief exception I understand would be the application of California non
>> profit law.
>>
>>
>>
>>
>>
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