[Ws2-jurisdiction] [Common denominator] ISSUE: Jurisdiction over ccTLDs
Olawale Bakare
wales.baky at googlemail.com
Fri Aug 25 18:20:20 UTC 2017
All,
Thank you, Thiago for your comment.
Would I agree with you on your comment with respect to immunity? Should we
not worry about the unforeseeable future risks? Why not? And what are these
concerns?
I would want this group read the full presentation made by Sam Eisner
again. In the mean time here is the excerpt from the presentation:
*....So in general OFAC prohibits providing goods and services to countries
under sanctions and on the SDN list. So it implies generally OFAC applies
generally to those who fall under the jurisdiction of the U.S. So
businesses here or U.S. citizens. And if companies or people don't comply,
the repercussions are actually very high. So an not only can there be
fines that can go into the millions but this is actually a matter of
criminal liability in some cases. And so, you know, if a company like
ICANN were to not follow the OFAC requirements you could find an officer
going to jail for that...*
Why not focus on the draft of the proposal to ICANN, detailing the
recommendation agreed on at yesterday's meeting, mirroring the OFAC
presentation of 1st August meeting. As well as the draft of the application
for general OFAC license for individuals, who are ICANN customers residing
in those affected countries on the SDN list.
Again, the chances of making a successful application should certainly be
hinged on not just the premise of the legal argument therein by the ICANN
legal team but the practical analysis around the complex DNS systems - Root
DNS Servers, TLD Servers, and Authoritative Servers.
With regards,
Wale
On 24 Aug 2017 19:39, "Thiago Braz Jardim Oliveira" <
thiago.jardim at itamaraty.gov.br> wrote:
Dear Nigel,
Dear All,
Thank you very much for your reply. I appreciate that you actually
understand and acknowledge the unsatisfactory situation that ICANN's
subjection to US enforcement jurisdiction put us in.
In terms of US jurisdiction over ccTLDs, others and you and I seem to agree
that US organs can possibly interfere with ICANN's ccTLD management,
regardless of whether that has already happened, and that this puts in
peril ICANN's accountability towards all stakeholders, in their respective
roles, on an equal footing.
I acknowledge your concern that we should be careful not to leave ICANN
free from liability as we recommend that ICANN obtain immunity from US
jurisdiction in respect of ICANN's ccTLD management. To ensure that this
does not happen, I believe we all concur that ICANN's own accountability
mechanisms should be in place and functioning and satisfy the expectations
of all stakeholders.
In view of the above, and also based on the most valid point made by
Bernard Turcotte in our online meeting of yesterday (#43), which I detail
below, I am confident we can agree on some mutually acceptable language
addressing the issue we've been discussing in this email thread.
In our online meeting of yesterday (#43), Bernard appropriately noted, with
general support from the participants, that in making our recommendation,
"we should be looking at what are the outcomes we're looking for and less
trying to be very specific about how to implement it." For practically
mandatory reasons, and I invite you to read Bernard's brilliantly reasoned
explanation in the transcript, as we recommend that ICANN reach such
objectives as of obtaining immunity, "it's fine to ask ICANN to study this
and come back with some concrete facts and estimates and then the community
can decide that”.
Accordingly, despite the disagreements that there might be, to use Nigel's
words, on "how to design immunity in a way that does not immunise ICANN
from liability for arbitrary or unlawful actions" in respect of ICANN's
ccTLD management, we have already reached the point where we can recommend
ICANN to
(i) seek immunity from US jurisdiction in respect of ICANN's ccTLD
activities, so that ICANN could neither be made defendant in domestic court
proceedings that aim, for example, to force ICANN to re-delegate a ccTLD,
nor be subject of enforcement measures by domestic agencies that interferes
with ICANN's ccTLD management; and
(ii) maintain and further develop its own accountability mechanisms,
through the appropriate bottom-up multi-stakeholder policy development
process, to ensure that ICANN can be held liable for its ccTLD management
activities.
The above proposal is practical and should reflect the constructive input
we have received so far on the issue, to an extent agreeable to the
different stakeholders. The approach that has led us to it, and I thank
Bernard Turcotte for proving its necessity, should also lead us to positive
results with respect to the other issues.
[For the transcript of meeting #43 where Bernard's point was made, see:
https://community.icann.org/download/attachments/69272141/CC
WG-WS2%20JURISDICTION%20SUBGROUP_08232017-FINAL-en.pdf?versi
on=1&modificationDate=1503589760000&api=v2 ; for useful exchanges within
this email thread, please see: http://mm.icann.org/pipermail/
ws2-jurisdiction/2017-August/001469.html ; and
http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001471.html ;
and http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001441.html ]
I look forward to your reaction to the above, which I trust will be
positive.
Best regards,
Thiago
________________________________________
De: Nigel Roberts [nigel at channelisles.net]
Enviado: quarta-feira, 23 de agosto de 2017 12:44
Para: Thiago Braz Jardim Oliveira; farzaneh badii
Cc: ws2-jurisdiction
Assunto: Re: RES: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs
Thiago
Framing this teleologically as you have done below, goes a long way to
advancing your argument while mitigating the knee-jerk reaction that I
and others, invariably have to any suggestion that ICANN staff and board
might receive immunity for their actions.
It's a reasonable argument to put forward.
It would not, in fact, have been necessary had ICANN been incorporated
in Switzerland or some other aggressively neutral place, as I argued for
long ao.
But it is where it is.
The concern that US organs can possibly interfere with ICANN's ccTLD
management is reasonable.
But so is the concern that ICANN itself can interfere in the management
of ccTLDs.
The former, whilst a valid concern has not happened.
The latter has.
How do you design immunity in a way that does not immunise ICANN from
liability for arbitrary or unlawful actions?
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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