[Ws2-jurisdiction] Issue: Domain seizures by US executive agencies like US customs
parminder
parminder at itforchange.net
Wed Aug 30 12:47:14 UTC 2017
Nigel, I quote below Milton Mueller's email of the 24th in full, but
putting in bold some relevant text, which negates your position below on
tlds as property or not , parminder
Some people have shown a lack of awareness of the nature of
the Appeals Court decision regarding the .IR ccTLD Paul is
discussing below. So here is our summary of its import:
The latest decision in the ICANN case departed sharply from
prior legal precedents. The court looked beyond the narrow
issue of whether the .IR ccTLD was attachable property. /*It
assumed, “without deciding,” that “the ccTLDs the plaintiffs
seek constitute ‘property’ under the Foreign Sovereigns
Immunity Act*/ and, further, that the defendant sovereigns
have some attachable ownership interest in them.” Thus
ICANN’s weak arguments against the property status of TLDs
had no impact on the decision. Instead, the court refused to
allow the .IR domain to be seized because:
“the court has the “authority” to “prevent appropriately the
impairment of an interest held by a person who is not liable
in the action giving rise to a judgment” — i.e., we are
expressly authorized to protect the interests of ICANN and
other entities. Because of the enormous third-party
interests at stake—and because there is no way to execute on
the plaintiffs’ judgments without impairing those
interests—we cannot permit attachment.”
By “requiring ICANN to delegate ‘.ir’ to the plaintiffs,”
the court opined, the plaintiffs “would bypass ICANN’s
process for ccTLD delegation” and this would have a harmful
impact on the global DNS and on ICANN itself.
So, to summarize: /*TLDs may well be attachable property,*/
but in this case, and in most conceivable ccTLD redelegation
cases, 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.
--MM
On Wednesday 30 August 2017 06:03 PM, Nigel Roberts wrote:
>
>
> On 30/08/17 12:44, parminder wrote:
>
>> 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.
>
>
> The first contention is correct. The second is demonstrably incorrect.
>
> This case did not involve either gTLDs or domains registered under them.
> It involved the ccTLDs of three countries. .IR, .SY and .KP.
>
> And the court explicitly stated that domain names (of any kind) were
> NOT seizable (attachable).
>
> A different answer might be given under the law of a different
> jurisdiction, of course.
>
> But those are facts in that case.
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