[Ws2-jurisdiction] RES: Domain names 'located' within the US

Tue May 30 12:32:14 UTC 2017

Gregory,

Just to clarify, one task of the Subgroup was chosen to be to review ICANN's litigation cases. But the Subgroup mandate is to assess the impact of "jurisdiction-related questions" on the operation of ICANN policies and functions.

To the extent the location of ICANN has an impact upon the ability of domestic courts to exercise jurisdiction over domain names and other features of the Domain Name System, whose management is one of ICANN's functions, it is up for the Subgroup to make one of its tasks to examine those cases (and any other evidence) that shed light on what that impact is.

The ACPA litigation I referred to is relevant as evidence that the location of ICANN has the potential of leading US courts to exercise jurisdiction over domain names as property located in the US. It is not just a coincidence that in one litigation directly involving ICANN as a defendant party (ITOH v ICANN), the parties discussed and the court examined what lessons could be drawn from ACPA litigation. Indeed ICANN pointed to this very NBCUniversal case, hoping to support the argument that the location of a country code top level domain (ccTLD) was at the registry. But the Superior Court of California noted that, according to the ACPA, location can be at where any domain name authority is located, which includes ICANN.

You say that "in rem jurisdiction dictates that the domain name is located in the United States". But in rem jurisdiction (as a basic feature of the law, as you say) can only be exercised over property located in the territory of the forum. It's because the property in question is situated within the territory of one State, and is subject to the territorial sovereignty of that State, that local courts exercise in rem jurisdiction over that property, and not the other way around.

And in Weinstein, an attempt to attach Iran's ccTLD failed because the court exercised a discretion, i.e. to use its authority to protect third-party interests, and not because ccTLDs were not property in the US. In fact, not only the Appeals Court did not deny that ccTLD was property, or property susceptible of attachment, or property located in the US. But also it affirmed that there would be no execution immunity in respect of Iran's ccTLD, because the Foreign State Immunity Act (FSIA) permitted attachment of property in that particular case. Now, property to which the FSIA is applicable is property situated in US territory, so that Weinstein may even support the argument that ccTLDs are actually treated as property located in the US because of ICANN's location.

Again, in Weinstein, the US Court of Appeals denied a request to force re-delegation of Iran's ccTLD not because it though it couldn't do so, but because it thought it shouldn't. For that particular case, and that particular case only, US courts thought it wise not to interfere with ICANN's functions.

Thiago

-----Mensagem original-----
De: Greg Shatan [mailto:gregshatanipc at gmail.com]
Enviada em: segunda-feira, 29 de maio de 2017 20:25
Para: Thiago Braz Jardim Oliveira
Cc: ws2-jurisdiction at icann.org
Assunto: Re: [Ws2-jurisdiction] Domain names 'located' within the US

Thiago,

Just to clarify, the Subgroup task is the review of ICANN's litigation cases.

I'm not familiar with the case you cite.  I am familiar with ACPA, since that's been around since 1999 and in rem jurisdiction is a basic feature of the law.  In rem jurisdiction dictates that the domain name is located in the United States; the Court had no power to assume anything.

In any event, while there are many fascinating topics under the general heading "domain names and jurisdiction," they don't all fall within our mandate.  Even the broadest attempt to define our mandate has not embraced this topic.  This is appropriate since ICANN does not register or assign second level domain names.  As such, I don't believe there is any real possibility that US courts would find in rem jurisdiction over a second level domain name issued by a registry located outside the US.  I'm not aware of any case where plaintiffs have asserted that the courts have in rem jurisdiction over a TLD and since ICANN does not, in fact, register or assign TLDs, this seems perfectly appropriate.  As the Weinstein case shows, an attempt under other laws to assert jurisdiction over a TLD based on ICANN's location failed.  Plaintiffs are always entitled to come up with novel legal theories, but there, as here, the mere existence of a theory does not give it credibility.

There are certainly other ACPA cases (as noted, the law has been around since 1999). Thankfully, this has not been defined as part of our mandate even in the most far-reaching interpretation offered in the Subgroup.

Greg

On Fri, May 26, 2017 at 5:25 PM, Thiago Braz Jardim Oliveira <thiago.jardim at itamaraty.gov.br<mailto:thiago.jardim at itamaraty.gov.br>> wrote:

                Dear Greg, dear all,

                In our last call, you asked me to provide citations for cases where US courts assumed jurisdiction over domain names because, as I said then, of ICANN's location in California. I believe I suggested that there are court decisions which concluded that "domain names" are "property" located within the US precisely because of ICANN's location.

                I agree with you that we'll have to come back to this in more detail, so let me just drop in here one case reference that, to my knowledge, does not appear in the list of litigation under review by our subgroup. Perhaps we should include it there. It's the NBC Universal, INC. et al., v. NBCUNIVERSAL.com (378 F.Supp.2d 715), from 2005. It's an interesting case and I think you are already familiar with it, since you pretty much described parts of it when you commented upon the point I was raising.

                As you hinted yourself, the case was based on an in rem action, i.e. an action over a 'thing', and the 'thing' was the domain name. And as you also said, the decision by the court to assume jurisdiction in that case was prompted not so much by the location of ICANN in the US, but rather by the registry's location in the US. The dispute was over a .COM domain, for which the registry is VeriSign. So it was on the basis of VeriSign's location in the US that the court assumed jurisdiction over an internet domain name as a 'thing'. Again, this was in rem jurisdiction, jurisdiction over a 'thing' if you will, and this type of jurisdiction is exercised over 'things' located in the territory of the forum, so that the domain name was considered to be within the US because the registry was a US company.

                Now, unless one denounces dominance by US companies as registries of gTLDs (which, to be fair, I'm not sure is the case, even though it might be), the fact that US courts can assume jurisdiction over a domain name because of the registry's location should not bother many. But, really, should it not? In this NBCUNIVERSAL.com case, not only the individual registrant was from Korea, but also the registrar was from Korea. Yet because the dispute was about a .COM domain name, for which Verisign is the registry, US courts assumed that the 'thing' (i.e. the domain name) was within and subject to US jurisdiction.

                A last point I want to make is this, and I think it is more disconcerting than the previous one. The basis on which US courts assumed jurisdiction in this NBCUNIVERSAL.com case was the Anticybersquatting Consumer Protection Act ("ACPA"), 15 U.S.C. § 1125(d). In there, 15 U.S.C. § 1125(d)(2)(A) reads as follows: "The owner of a mark may file an in rem civil action against a domain name in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located...".  In the NBCUNIVERSAL.com case, it was the location of the registry that gave jurisdiction to US courts under that provision. But the provision in question also grants jurisdiction to US courts on the basis of the location of any "other domain name authority that registered or assigned the domain name". As I understand it (and I may be able to point to a case that supports that), ICANN qualifies as such a domain name authority because assigning names and numbers is what it does. So according to US laws, and we are here only discussing this one particular piece of legislation, there is a real possibility that US courts assume and exercise jurisdiction over domain names, and over any domain name, TLDs and ccTLDs, because ICANN is located within US territory, as far as claims under the ACPA are concerned.

                I'm sure there are plenty more cases like this, and many others that deserve our attention, and we will not have discharged our mandate unless we examine and assess them all.

                Best,

                Thiago Jardim

                Thiago Braz Jardim Oliveira

                Divisão da Sociedade da Informação

                Ministério das Relações Exteriores

                +55 61 2030 6389 <tel:+55%2061%202030-6389>

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