[Ws2-jurisdiction] RES: ISSUE: In rem Jurisdiction over ccTLDs
parminder
parminder at itforchange.net
Thu Aug 24 02:44:23 UTC 2017
On Wednesday 23 August 2017 09:14 PM, Nigel Roberts wrote:
> snip
> How do you design immunity in a way that does not immunise ICANN from
> liability for arbitrary or unlawful actions?
That requires two things
(1) make necessary exceptions to general immunity under IOI Act, binding
ICANN to procedural and private law aspects, so that it cannot go out of
its procedures laid in its bylaws, created by the community, and
amendable by it. And if it does so, coercive force of law can be made
to bear upon it to make it behave.
(2) Have an international panel of judicial oversight - preferably, in
two layers - over ICANN, which is specifically developed for the
purpose. This oversight prevents ICANN from undertaking arbitrary and
unlawful actions, and its judgements are enforceable by private law
provisions of the relevant US law under which ICANN continues to operate
(as an exception to general immunity under IOI Act). This judicial
oversight should have special relationship with community oversight
mechanisms, if needed through new procedural rules and laws, so that the
two work together as an effective check against arbitrary and unlawful
action by ICANN's management.
Lets have some faith in institutions other than the US state's alone
(although in the above arrangement we are selectively employing some of
the US institutions as well).
Was ICANN not supposed to be all about evolving a new bottom up
governance and accountability system? Why do we then get nervous and
abdicate at a crunch time like the present one. And why is the absolute
greatness of ICANN's governance model - with qualities of democratic,
inclusive, bottom up, autonomy, and so on -- only touted against other
governments of the world, even if working together democratically, but
it simply falls on its knees in front of the US state!!???
One needs a response to it. Such discrimination cannot be accepted.
People outside the US too have rights, and sense of democratic dignity.
We are well into the 21st century to allow such levels of discrimination.
I appeal to at least the non USians here to protest against such
discriminatory behaviour, but also to the well-known democratic
instincts of the US-ians.
parminder
>
>
>
> On 23/08/17 15:39, Thiago Braz Jardim Oliveira wrote:
>> Dear Farzaneh,
>> Dear All,
>>
>> Thank you very much for your reply. I will try to clarify the proposal I
>> submitted a bit further, which may help us better frame the discussion
>> from my point of view.
>>
>> The proposal, as I see it, is not to obtain 'property' immunity for
>> ccTLDs, or immunity from seizure or attachment. As you rightly
>> suggested, if we were getting into that, we would perhaps also get into
>> discussions about the status of ccTLDs, whether they are an expression
>> of 'sovereign' rights or not, etc. But we don't need to.
>>
>> Instead, the proposal is that ICANN (not the ccTLD manager) obtains
>> jurisdictional immunity in respect of ICANN's activities relating to the
>> management of ccTLDs. The effect is that ICANN could not be made
>> defendant in domestic court proceedings that aim, for example, to force
>> ICANN to re-delegate a ccTLD. This is on the understanding that no
>> single country is entitled to exercise jurisdiction over ICANN in ways
>> that interfere with ICANN's management of other countries' ccTLDs. I
>> hope I have provided the rationale for this understanding in the e-mail
>> where I described the issue and proposed solutions.
>>
>> As to the apparent controversy about whether ccTLDs are property, again,
>> strictly we may not need to get into that. My point relating to 'in rem
>> jurisdiction' was therefore perhaps unnecessary, but the idea was to
>> point to an existing practice in the US where domestic courts (and
>> enforcement agencies) have found to have authority to interfere with
>> domain names (and arguably ccTLDs) based on the 'location' of the
>> 'domain name authority', as is ICANN, in the US. (I had previously
>> touched on these points
>> here:
>> http://mm.icann.org/pipermail/ws2-jurisdiction/2017-May/001003.html).
>>
>> Perhaps this was unnecessary. The main point is instead this: currently,
>> it has been open to the organs of the single country with exclusive
>> authority to enforce jurisdiction in respect of ICANN's ccTLD management
>> activities (US exclusive territorial jurisdiction) the possibility of
>> deciding that they will, or that they will not, interfere with such
>> ICANN's activities. And regardless of the reason they invoke to legally
>> justify their interference, however justifiable it may be from a
>> domestic law point of view (because, say, ccTLDs are property or they
>> have 'in rem jurisdiction'), the point is that it should not up to the
>> organs of any country to chose and decide on the reasons to interfere,
>> and then interfere, with ICANN's management of other countries' ccTLDs.
>>
>> It is because US organs can possibly interfere with ICANN's ccTLD
>> management, as an expression of US exclusive enforcement jurisdiction
>> over things or activities performed in US territory, that it is
>> necessary to recommend that ICANN obtains immunity in respect of its
>> ccTLD management activities. Any measure that clearly rules out that
>> possibility, in turn, for it to meet ICANN's accountability goals
>> towards all stakeholders, should not be left to unilateral decisions of
>> the organs of one State, or to the vagaries of US jurisprudence, however
>> uniform and constant it might be.
>>
>> Best regards,
>>
>> Thiago
>>
>>
>>
>> ------------------------------------------------------------------------
>> *De:* ws2-jurisdiction-bounces at icann.org
>> [ws2-jurisdiction-bounces at icann.org] em nome de farzaneh badii
>> [farzaneh.badii at gmail.com]
>> *Enviado:* quarta-feira, 23 de agosto de 2017 9:07
>> *Para:* Nigel Roberts
>> *Cc:* ws2-jurisdiction
>> *Assunto:* Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs
>>
>> In the .IR case, the court did not decide on whether ccTLD is a property
>> or not. Anyhow, I do not think we should go into that discussion. I
>> think the important thing to find out is whether the court case in .IR
>> is precedential.
>>
>> I don't think the second part of your solution would work Thiago, if
>> jurisdictional immunity is not granted to ccTLDs ( I don't know how we
>> can get such jurisdictional immunity and don't forget that some ccTLD
>> managers are totally private and not government run).
>>
>> The below might not be enforceable:
>>
>> "ICANN Bylaws an exclusive choice of forum provision, whereby disputes
>> relating to the management of any given ccTLD by ICANN shall be settled
>> exclusively in the courts of the country to which the ccTLD in question
>> refer."
>>
>> First of all not many ccTLDs have contracts with ICANN. Secondly, in
>> third party claims or disputes, for example in case of initiating
>> attachment of a ccTLD as an enforcement of a monetary compensation, this
>> clause might be challenged and might very well be ineffective.
>>
>>
>>
>> Farzaneh
>>
>> On Wed, Aug 23, 2017 at 7:05 AM, Nigel Roberts <nigel at channelisles.net
>> <mailto:nigel at channelisles.net>> wrote:
>>
>> You can make such assertions all you like, but it doesn't make it
>> necessarily so.
>>
>> The best I can offer by way of certainty in the matter is "we don't
>> really know, but we can take some guesses".
>>
>> The difference between the DNS and spectrum is that spectrum exists
>> per se. The DNS only exists becuase it was designed and constructed.
>>
>> I could start a different DNS tomorrow. It would not get wide use,
>> but it would not differ in any way from the existing DNS.
>>
>> Furthermore possible new technologies can outdate the current DNS
>> (I'm thinking of blockchain) just like SMTP outdated and made X.400
>> useless.
>>
>>
>>
>>
>> On 23/08/17 11:52, Arasteh wrote:
>>
>> Dear All
>> ccTLD at any level shall not be considered as property or
>> attachment at all.
>> gTLD including ccTLD are resources like orbital /spectrum which
>> are not at possession of any entity but could be used under
>> certains rules and procedure established for such use
>> Any action by any court to consider it as attachment is illegal
>> and illegitimate as DNS shall not be used as a political vector
>> or means against any people covered under that DNS.
>> Being located in a particular country does I no way grant /
>> provide any legal or administrative or judicial right to that
>> country . DNS is a universal resources belong to the public for
>> use under certains rules and procedure and shall in no way be
>> used asa vehicle for political purposes.
>> We need to address this issue very closely and separate
>> political motivation from technical use.
>> Regards
>> Kavouss
>> Sent from my iPhone
>>
>> On 23 Aug 2017, at 08:52, <Jorge.Cancio at bakom.admin.ch
>> <mailto:Jorge.Cancio at bakom.admin.ch>>
>> <Jorge.Cancio at bakom.admin.ch
>> <mailto:Jorge.Cancio at bakom.admin.ch>> wrote:
>>
>> Dear all,
>>
>> please excuse my ignorance, but have domain names not be
>> seized as "assets" or "property" in the US under the
>> application of domestic law?
>>
>> Wikipedia info is here:
>> https://en.wikipedia.org/wiki/Operation_In_Our_Sites
>> <https://en.wikipedia.org/wiki/Operation_In_Our_Sites>
>>
>> If a second level domain is subject to potential seizure,
>> why not a TLD?
>>
>> Regards
>>
>> Jorge
>>
>> -----Ursprüngliche Nachricht-----
>> Von: ws2-jurisdiction-bounces at icann.org
>> <mailto:ws2-jurisdiction-bounces at icann.org>
>> [mailto:ws2-jurisdiction-bounces at icann.org
>> <mailto:ws2-jurisdiction-bounces at icann.org>] Im Auftrag von
>> Nigel Roberts
>> Gesendet: Mittwoch, 23. August 2017 08:44
>> An: ws2-jurisdiction at icann.org
>> <mailto:ws2-jurisdiction at icann.org>
>> Betreff: Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction
>> over ccTLDs
>>
>> Milto
>>
>> There is no authority at all for this Claim, in law, as I
>> suspect you know.
>>
>> As I suspect you also know very well, the nearest evidence
>> that might support such a Claim is that one of the
>> contentions in /Weinstein/ was that a ccTLD (three of them,
>> if I remember correctly) could be garnished under the "state
>> law" of DC. (I know technically, DC is not a state of the
>> Union, but I don't know the US correct term-of-art for
>> 'state or capital region')
>>
>> Unfortunately or fortunately (depending on one's point of
>> view) it was not necessary for the Court to decide on this
>> claim by the Judgment Debtor. This means that the idea that
>> US courts might either have either or both of :-
>>
>> (a) legal jurisdiction over the ownership of the rights
>> represented by a ccTLD delegation
>>
>> (b) the desire to exercise such (lack of desire to address a
>> particular contention usually leads judges in common-law
>> systems to be able conveniently to find a creative ratio
>> that finds other reasons that the case can be decided
>>
>> remains a completely open question.
>>
>> It seems to me that additional hints for future litigants
>> (as you know, common-law judges do that too) appear to have
>> been given in the Weinstein judgment as to whether the
>> rights in law enjoyed by a ccTLD manager (whatever they
>> might be) MIGHT constitute property or not, but this remarks
>> don't even amount to /obiter dictum/ - they are just hints
>> at a possible road of future judicial travel and any court
>> seised of a future Claim is entirely free to ignore them.
>>
>> And, even so, those hints don't address the question of /in
>> rem/ at all.
>>
>>
>> As you can see, I (along with some others in the ccTLD
>> community) havefollowed, and analysed this case carefully
>> and in some detail.
>>
>> We are aware of no other possible legal authority that
>> addresses whether ccTLDs are property (let alone whether
>> that property, if it is property, is subject to /in rem/
>> jurisidiction).
>>
>> Unless others have additional information?
>>
>>
>>
>>
>> Nigel Roberts
>>
>> PS: I would also commend others to read Farzaneh and
>> Milton's ccTLD paper.
>>
>>
>> On 22/08/17 22:31, Mueller, Milton L wrote:
>>
>>
>>
>>
>> Issue 3: In rem Jurisdiction over ccTLDs
>>
>>
>>
>> Description: US courts have in rem jurisdiction over
>> domain names as a
>> result of ICANN's place of incorporation
>>
>>
>>
>> What is the evidence for this claim?
>>
>> --MM
>>
>>
>>
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