[Ws2-jurisdiction] RES: [EXTERNAL] Re: Issue: Domain seizures by US executive agencies like US customs
Kavouss Arasteh
kavouss.arasteh at gmail.com
Thu Aug 31 05:59:40 UTC 2017
Dear All,
We are not expected to defend or offend any specific jurisdiction mechanism
nor we are mandated to talk about the degree of free speech and
association that is built into US constitutional jurisprudence .We should
just limit ourselves to address the difficulties reported.
Comments and or/ comparions of constitutions in terms of the degree of
free speech and association that is built into that constituions is
totally outside of our mandate
Cheers
Kavouss
On Thu, Aug 31, 2017 at 3:57 AM, John Laprise <jlaprise at gmail.com> wrote:
> ICANN is a legal creation. It doesn't exist outside the law. Objections to
> US jurisprudence seem to all accept that there is another jurisdiction
> where this reality does not apply. Such a jurisdiction does not exist
> because paradoxically, if local rule of law were so weak, ICANN would also
> be weak.
>
> Alternative jurisdictions moreover do not support the same degree of free
> speech and association that is built into US constitutional jurisprudence
> and they would almost certainly be compelled by politics to influence ICANN
> to a greater degree. Changing jurisdictions, absent a well-reasoned
> alternative is a non-starter.
>
> Best regards,
>
> John Laprise, Ph.D.
>
> http://www.linkedin.com/in/jplaprise/
>
>
>
>
> -----Original Message-----
> From: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-
> bounces at icann.org] On Behalf Of Thiago Braz Jardim Oliveira
> Sent: Wednesday, August 30, 2017 3:24 PM
> To: 'Greg Shatan' <gregshatanipc at gmail.com>; Burr, Becky
> <Becky.Burr at team.neustar>
> Cc: ws2-jurisdiction at icann.org
> Subject: [Ws2-jurisdiction] RES: [EXTERNAL] Re: Issue: Domain seizures by
> US executive agencies like US customs
>
> Dear Greg,
> Dear All,
>
> It is very disturbing to anyone outside the United States that we should
> rely on US jurisprudence (and the advice you US lawyers are able to
> provide), however consistent it might be, to hope that the same United
> States, the only country with the necessary powers to interfere with
> ICANN's management of the DNS in a meaningful way, will not exercise such
> powers to the detriment of other countries or in ways that adversely affect
> the Internet in other countries.
>
> If this issue is not properly addressed, I'm afraid Brazil will have to
> dissociate itself from any recommendation this subgroup provides.
>
> Best,
>
> Thiago
>
>
>
> -----Mensagem original-----
> De: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-
> bounces at icann.org] Em nome de Greg Shatan Enviada em: quarta-feira, 30 de
> agosto de 2017 13:27
> Para: Burr, Becky
> Cc: ws2-jurisdiction at icann.org
> Assunto: Re: [Ws2-jurisdiction] [EXTERNAL] Re: Issue: Domain seizures by
> US executive agencies like US customs
>
> A general note on "assuming without deciding":
>
> "Assuming without deciding" (or "assuming arguendo") is a common
> legal/judicial method of "leapfrogging" (i.e., bypassing) consideration of
> a particular issue in order to get to and decide another issue that is
> further down the road -- generally a more important and consequential
> issue. This is done when the court really wants to confront and decide the
> latter issue due to its importance, but sees that it will likely never get
> there if it decides the first issue.
>
> There is no decision, much less any precedential value, attached to the
> result that is being assumed in this way. If anything, it's an indication
> that the matter "assumed" would be decided in the opposite fashion, which
> is why the court made the assumption it did -- to get to the issue it
> really felt needed deciding. It's essential to understand this in order to
> properly interpret any opinion that uses the method of "assuming without
> deciding."
>
> In this particular case, it's instructive (and encouraging) that the
> appeals court decided to do this to get to the bigger policy issue -- as
> Becky put it, "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."
>
> As a technical matter, I believe the lower court decision on the first
> point still stands, since their decision was affirmed on different grounds
> and the appeals court did not overrule the lower court on this point. I
> won't get into the nuances of how to use this as precedent and where it
> would be seen as precedent, but it should be understood that the appeals
> court did not simply wash away the lower court decision.
>
> Greg
>
> On Wed, Aug 30, 2017 at 9:30 AM, Burr, Becky via Ws2-jurisdiction <
> ws2-jurisdiction at icann.org> wrote:
>
>
> 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.
>
>
> J. Beckwith Burr
> Neustar, Inc. / Deputy General Counsel & Chief Privacy
> Officer
> 1775 Pennsylvania Avenue NW DC 20006
> Office: +1.202.533.2932 <tel:%2B1.202.533.2932> Mobile:
> +1.202.352.6367 <tel:%2B1.202.352.6367>
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> On 8/30/17, 9:00 AM, "ws2-jurisdiction-bounces at icann.org <mailto:
> ws2-jurisdiction-bounces at icann.org> on behalf of
> Nigel Roberts" <ws2-jurisdiction-bounces at icann.org <mailto:
> 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, ³without deciding,² that ³the ccTLDs the
> >>plaintiffs
> >> seek constitute Œproperty¹ under the Foreign
> Sovereigns
> >> Immunity Act*/ and, further, that the defendant
> sovereigns
> >> have some attachable ownership interest in them.²
> Thus
> >> ICANN¹s 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:
> >>
> >>
> >>
> >> ³the court has the ³authority² to ³prevent
> >>appropriately the
> >> impairment of an interest held by a person who is
> not liable
> >> in the action giving rise to a judgment² ‹ 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 plaintiffs¹ judgments without impairing those
> >> interests‹we cannot permit attachment.²
> >>
> >>
> >>
> >> By ³requiring ICANN to delegate Œ.ir¹ to the
> >>plaintiffs,²
> >> the court opined, the plaintiffs ³would bypass
> ICANN¹s
> >> process for ccTLD delegation² 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.
> >>> _______________________________________________
> >>> Ws2-jurisdiction mailing list
> >>> Ws2-jurisdiction at icann.org
> >>>
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> >>
> >>
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