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

Wed Aug 30 13:30:25 UTC 2017

The precedent created by the decision is that a court-ordered seizure of a
ccTLD would impair the interest of ICANN in a globally acceptable
delegation process and possibly also impair the
             interest of its registrants.  That supports and is consistent
with the global multi stakeholder model.

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On 8/30/17, 9:00 AM, "ws2-jurisdiction-bounces at icann.org on behalf of
Nigel Roberts" <ws2-jurisdiction-bounces at icann.org on behalf of
nigel at channelisles.net> wrote:

>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, Â³without deciding,Â² that Â³the ccTLDs the
>>plaintiffs
>>             seek constitute ÂŒpropertyÂ¹ under the Foreign Sovereigns
>>             Immunity Act*/ and, further, that the defendant sovereigns
>>             have some attachable ownership interest in them.Â² Thus
>>             ICANNÂ¹s 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:
>>
>>
>>
>>             Â³the court has the Â³authorityÂ² to Â³prevent
>>appropriately the
>>             impairment of an interest held by a person who is not liable
>>             in the action giving rise to a judgmentÂ² Â‹ i.e., we are
>>             expressly authorized to protect the interests of ICANN and
>>             other entities. Because of the enormous third-party
>>             interests at stakeÂ‹and because there is no way to execute
>>on
>>             the plaintiffsÂ¹ judgments without impairing those
>>             interestsÂ‹we cannot permit attachment.Â²
>>
>>
>>
>>             By Â³requiring ICANN to delegate ÂŒ.irÂ¹ to the
>>plaintiffs,Â²
>>             the court opined, the plaintiffs Â³would bypass ICANNÂ¹s
>>             process for ccTLD delegationÂ² 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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