[Ws2-jurisdiction] [Common denominator] ISSUE: Jurisdiction over ccTLDs
Parminder
parminder at itforchange.net
Sun Aug 27 06:04:04 UTC 2017
Whats the deadline to put in issues?
I plan to post that of DN seizures by US agencies like the customs which has been discussed here.
I need some time to do so since i am traveling and cant do it now. Thanks.
Parminder
On 25 August 2017 23:50:20 GMT+05:30, Olawale Bakare via Ws2-jurisdiction <ws2-jurisdiction at icann.org> wrote:
>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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--
Sent from a phone. Please excuse brevity and typos.
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