[Ws2-jurisdiction] [EXTERNAL] Re: Issue: Domain seizures by US executive agencies like US customs
Nigel Roberts
nigel at channelisles.net
Wed Aug 30 17:03:12 UTC 2017
I agree 100% with Greg's detailed explanation; which is what I was
trying (unsuccessfully, it might appear) to get across at a much higher
level.
What is also worth noting is that the ratio of lower court's decision,
which although not on appeal, could be persuasive precedent, would ONLY
apply in DC, or possibly in other states with similar laws (I think from
my reading of the arguments that DC and Virginia statutes are pretty
much identical on this topic).
In other words, the ratio at first instance which (in my view) says:
"IF domain names are property (and it seems they might be, but it's not
necessary for us to decide whether they are, or not) THEN they would
definitely be the kind of property that you CAN'T attach."
would have no application in other states with different attachment laws.
So it's all very well (and very entertaining) to make submissions about
how a legal rule MIGHT apply. But until there's a decided case that's
(at the least) persuasive precedent, that would not be the law, just a
legal hypothesis.
ICANN's past actions, however, ARE a matter of living memory.
On 30/08/17 17:26, Greg Shatan wrote:
> A general note on "assuming without deciding":
>
> "Assuming without deciding" (or "assuming arguendo") is a common
> legal/judicial method of "leapfrogging" (i.e., bypassing) consideration
> of a particular issue in order to get to and decide another issue that
> is further down the road -- generally a more important and consequential
> issue. This is done when the court really wants to confront and decide
> the latter issue due to its importance, but sees that it will likely
> never get there if it decides the first issue.
>
> There is no decision, much less any precedential value, attached to the
> result that is being assumed in this way. If anything, it's an
> indication that the matter "assumed" would be decided in the opposite
> fashion, which is why the court made the assumption it did -- to get to
> the issue it really felt needed deciding. It's essential to understand
> this in order to properly interpret any opinion that uses the method of
> "assuming without deciding."
>
> In this particular case, it's instructive (and encouraging) that the
> appeals court decided to do this to get to the bigger policy issue -- as
> Becky put it, "a court-ordered seizure of a ccTLD would impair the
> interest of ICANN in a globally acceptable delegation process and
> possibly also impair the interest of its registrants."
>
> As a technical matter, I believe the lower court decision on the first
> point still stands, since their decision was affirmed on different
> grounds and the appeals court did not overrule the lower court on this
> point. I won't get into the nuances of how to use this as precedent and
> where it would be seen as precedent, but it should be understood that
> the appeals court did not simply wash away the lower court decision.
>
> Greg
>
> On Wed, Aug 30, 2017 at 9:30 AM, Burr, Becky via Ws2-jurisdiction
> <ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org>> wrote:
>
> The precedent created by the decision is that a court-ordered
> seizure of a
> ccTLD would impair the interest of ICANN in a globally acceptable
> delegation process and possibly also impair the
> interest of its registrants. That supports and is
> consistent
> with the global multi stakeholder model.
>
>
> J. Beckwith Burr
> Neustar, Inc. / Deputy General Counsel & Chief Privacy
> Officer
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> On 8/30/17, 9:00 AM, "ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org> on behalf of
> Nigel Roberts" <ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org> on behalf of
> nigel at channelisles.net <mailto:nigel at channelisles.net>> wrote:
>
> >No, it doesn't.
> >
> >The words "without deciding" are highly relevant, here, and you are
> >overlooking them.
> >
> >This is common practice in courts where a decision can be made without
> >deciding a matter that is alleged.
> >
> >The court, in this case, at first instance, DECIDED that the DC
> >attachment statute does not permit attachment of intangible property.
> >
> >Upon appeal, the court dismissed the Claimants' appeal on different
> >reasoning, without deciding whether domain names are attachable property.
> >
> >Thus there is simply no ratio to that effect that you claim that may be
> >relied upon even in DC, let alone act as persuasive in any other state
> >or common-law jurisdiction.
> >
> >
> >
> >On 30/08/17 13:47, parminder wrote:
> >> Nigel, I quote below Milton Mueller's email of the 24th in full, but
> >> putting in bold some relevant text, which negates your position below on
> >> tlds as property or not , parminder
> >>
> >>
> >> Some people have shown a lack of awareness of the nature of
> >> the Appeals Court decision regarding the .IR ccTLD Paul is
> >> discussing below. So here is our summary of its import:
> >>
> >>
> >>
> >> The latest decision in the ICANN case departed sharply from
> >> prior legal precedents. The court looked beyond the narrow
> >> issue of whether the .IR ccTLD was attachable property. /*It
> >> assumed, ³without deciding,² that ³the ccTLDs the
> >>plaintiffs
> >> seek constitute Œproperty¹ under the Foreign
> Sovereigns
> >> Immunity Act*/ and, further, that the defendant sovereigns
> >> have some attachable ownership interest in them.² Thus
> >> ICANN¹s weak arguments against the property status
> of TLDs
> >> had no impact on the decision. Instead, the court refused to
> >> allow the .IR domain to be seized because:
> >>
> >>
> >>
> >> ³the court has the ³authority² to ³prevent
> >>appropriately the
> >> impairment of an interest held by a person who is not liable
> >> in the action giving rise to a judgment² ‹ i.e.,
> we are
> >> expressly authorized to protect the interests of ICANN and
> >> other entities. Because of the enormous third-party
> >> interests at stake‹and because there is no way to
> execute
> >>on
> >> the plaintiffs¹ judgments without impairing those
> >> interests‹we cannot permit attachment.²
> >>
> >>
> >>
> >> By ³requiring ICANN to delegate Œ.ir¹ to the
> >>plaintiffs,²
> >> the court opined, the plaintiffs ³would bypass ICANN¹s
> >> process for ccTLD delegation² and this would have a
> harmful
> >> impact on the global DNS and on ICANN itself.
> >>
> >>
> >>
> >> So, to summarize: /*TLDs may well be attachable
> property,*/
> >> but in this case, and in most conceivable ccTLD
> redelegation
> >> cases, the court decided that court-ordered seizure
> of the
> >> ccTLD would impair the interest of ICANN in a globally
> >> acceptable delegation process and possible also
> impair the
> >> interest of its registrants.
> >>
> >>
> >>
> >> --MM
> >>
> >>
> >>
> >>
> >>
> >> On Wednesday 30 August 2017 06:03 PM, Nigel Roberts wrote:
> >>>
> >>>
> >>> On 30/08/17 12:44, parminder wrote:
> >>>
> >>>> 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.
> >>>
> >>>
> >>> The first contention is correct. The second is demonstrably
> incorrect.
> >>>
> >>> This case did not involve either gTLDs or domains registered under
> >>>them.
> >>> It involved the ccTLDs of three countries. .IR, .SY and .KP.
> >>>
> >>> And the court explicitly stated that domain names (of any kind)
> were
> >>> NOT seizable (attachable).
> >>>
> >>> A different answer might be given under the law of a different
> >>> jurisdiction, of course.
> >>>
> >>> But those are facts in that case.
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> >>
> >>
> >>
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