[Ws2-jurisdiction] Issue: Domain seizures by US executive agencies like US customs

[parminder]

Issue:

US customs have routinely seized domain names belonging to foreign
entities, whose owners in their view violate US law. This has mainly
been done for alleged violation of intellectual property law, but could
have been done for other laws as well, and certainly can be so done in
the future. Till now all cases were such as having second level domain
names with US based registries, most often Verisign, which runs the .com
registry. Therefore US Custom have forced the agency that could help
them seize domain names, ie the concerned US based registry". It is
obvious that if the "violating" foriegn entity were to own a gTLD --
which is increasingly likely with the great onrush on gTLDs -- US Custom
will force ICANN as the "registry" of gTLDs in the same way they earlier
acted on US based registries. In the eyes od a US executive agency,
there is no legal difference in this regard, for enforcement assistance
purpose, between a US based business and a US based non profit like ICANN.

Further, it is not just the actual seizure that is the problem. Law
exist much more in observance than defiance, and thus visible punishment
ensuing from it. Global companies that take on gTLDs, as many are
expected to, will experience the "chilling effect
<https://en.wikipedia.org/wiki/Chilling_effect>", whereby they already
begin to subject their actions to US laws fearing US enforcement powers
exercised thorugh the gTLD route. Thereby the global DNS becomes an
illegitimate and undemocratic way of extending US law globally.

Solution:

I do not think any specific exceptions to any organisation or class of
actions is even theoritically available under the laws under which US
custom makes these seizures. In the circumstances, the only solution is
a general immunity under the US International Organisations Immunities
Act, with proper customisation and exceptions for ICANN to enable to be
able to perform its organisational activities from within the US. The
chief exception I understand would be the application of California non
profit law. 



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