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

[Nigel Roberts]

No, it doesn't.

The words "without deciding" are highly relevant, here, and you are 
overlooking them.

This is common practice in courts where a decision can be made without 
deciding a matter that is alleged.

The court, in this case, at first instance, DECIDED that the DC 
attachment statute does not permit attachment of intangible property.

Upon appeal, the court dismissed the Claimants' appeal on different 
reasoning, without deciding whether domain names are attachable property.

Thus there is simply no ratio to that effect that you claim that may be 
relied upon even in DC, let alone act as persuasive in any other state 
or common-law jurisdiction.



On 30/08/17 13:47, parminder wrote:
> 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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>
>
>
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