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

[Tarek Kamel]

Thanks Baher

I recommend also that Baher participates  on behalf of ICANN in this MAG WG due to his previous experience and gives up regular feedback until the end of the year of what happens there

Regards
Tarek 

> On Aug 30, 2017, at 13:44, parminder <parminder at itforchange.net> wrote:
> 
> 
> 
>> On Monday 28 August 2017 01:11 PM, Nigel Roberts wrote:
>> Parminder
>> 
>> Nothing is "obvious".
>> 
>> You are making a submission, and you have offer us no actual authority
>> for this, other than analogy.
> 
> Would you strength the security of your house on the "analogy" that
> there has been a burglary in the neighbourhood, or should you want for
> proven instance of someone breaking into your house before you do so......
>> 
>> What you say is *possible*. But it's not CERTAIN, or even probable.
> 
> Like is is not certain that your house wil be burgled , and on any given
> day the probability also in fact is pretty low...
>> 
>> The only authority we have for this, which is Weinsteain, on appeal,
>> seems to indicate that courts, equally likely would prevent the
>> seizure of TLDs, on public policy grounds.
> 
> The court took up jurisdiction, and also accepted to treat gtld as
> sieze-able property, these are the two most important facts of the case.
> On balance of interests involved, and respective harms and benefits, it
> decided in a certain manner given certain contingent conditions. Other
> set of conditions could provide the opposite order, possible of ordering
> seizure, given that the powers to do so have been asserted.
>> 
>> And there is a significant distinction here between ccTLDs and gTLDs.
> 
> Yes, and so?
>> 
>> So, please, let us not try and build scaffolding when the sky is not
>> falling.
> 
> It is not falling on your world and interests and they are currently
> organised, it is falling on other people's. Participation in public
> policy processes require a sense of justice and fairness for all ...
> parminder
> 
> 
>> 
>> 
>>> On 28/08/17 03:31, parminder wrote:
>>> 
>>> 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://urldefense.proofpoint.com/v2/url?u=https-3A__en.wikipedia.org_wiki_Chilling-5Feffect&d=DwICAg&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=nH72yKltFo7uPpVS3zEbAPC6fMLYCGY7yLRGK9zMUvo&m=8Q7sY_-WMtnXRQSCxY8GTwhUrwbbilR7du7b_MHHjiI&s=EqCif2mKQEv7098X6F1qziZfxSu0zUTvOhYcwOtzY8k&e= >", 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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>>> Ws2-jurisdiction at icann.org
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>>> 
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