[Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs

[parminder]

On Thursday 24 August 2017 07:49 PM, Mueller, Milton L wrote:
>
> snip
>>> Wikipedia info is here:
>>> https://en.wikipedia.org/wiki/Operation_In_Our_Sites
> These were second-level domains registered under .com, a US-based registry. This may be the third or fourth time you've failed to distinguish between 2LDs and TLDs, Parminder, and have had to be corrected. If a registry (i.e., .COM) is a business in US jurisdiction, yes, US law applies to it. But this has nothing to do with ICANN's jurisdiction and nothing we do to or with ICANN will change it. 

Milton, it is you who makes a wrong distinction between 2LDs and TLDs,
which has no legal basis, and this legally unsubstantiated distinction
is the cause of all this confusion.

Facts are like this: Registries own TLDs and under it register 2TLDs,
either directly or indirectly, that does not matter. ICANN owns the DNS
root and under it registers TLDs. For US law there is no legal
distinction between these two sets - respective domain names and their
ownership patterns. A registry like verisign is a private business, and
ICANN is a private non profit, both allocating domain names which is an
important asset.

Now, if, say US custom, finds that a business owning a 2TLD falls foul
with its conception of US law, and it considers seizing its domain as
one way (perhaps the only available one, say for a business located on
foreign shores) of punishing it and / or stopping its illegal business ,
it will compel the concerned registry (if it be US based) to seize its
2LD. This has happened numerous times as discussed. If the registry is
not US based, or even if were, US custom could also have approached
ICANN  and forced its hand, but that will be unhelpful because ICANN can
only remove the whole TLD and not just one specific 2LD, which only the
concerned registry can do. Since there would be thousands if not
millions of other 2LDs on the same TLD this will be a disproportionate
act and therefore not expected to done.

However, if the offending business owned its own TLD (which 
increasingly would be the case with gTLDs becoming common) and US custom
wanted to seize it, for the same reasons that it has seized 2LDs in the
past, they would simply ask ICANN, as the only body that can seize TLDs
to do so. There is simply no reason that they will hesitate. For them
ICANN is no different from a registry, both are US based/ incorporated
private bodies that can be compelled to assist in enforcement of US law.

Can anyone say that the above is not an accurate legal position. I can
take any kind of bet that it is so. I am ready to take any neutral legal
advice on it, and abide by it (including paying up on my bet :) ). Any
takers?

parminder



>
>>> If a second level domain is subject to potential seizure, why not a TLD?
> I guess you didn’t actually read the court case about .IR, did you? Or our wonderful ;-) law review article about it. 
> http://www.stlr.org/download/volumes/volume18/muellerBadiei.pdf 
>
> I'd encourage you to do so, the answer to this question lies therein. 
>
> Dr. Milton L Mueller
> Professor, School of Public Policy
> Georgia Institute of Technology
> Internet Governance Project 
> http://internetgovernance.org/ 
>
>
>