Earlier today the U.S. Court of Appeals for the DC Circuit issued its decision in Weinstein vs. Iran, a case in which families of terror victims sought to have ICANN turn over control of Iranâs .IR ccTLD to plaintiffs. In a unanimous decision the three judge panel stated, âOn ICANNâs motion, the district court quashed the writs, finding the data unattachable under District of Columbia (D.C.) law. We affirm the district court but on alternative grounds.â
In reaching its decision, the Court opined (but did not decide) that a top level domain constitutes an attachable property interest. Nonetheless, the Court used its statutory authority to avoid a resultÂ that could have led to a âdoomsday effectâ for ICANN and all Internet users by creating technical instability in the DNS, as well as undermining confidence in ICANN and possibly leading to an end of voluntary participation in its root zone by many entities, who might then go on to establish anÂ alternate DNS and thereby âsplit the rootâ.
In my view, this result avoids the possibility of a major erosion of confidence and participation in ICANN by ccTLD operators by making clear that a respected Court of Appeals in the U.S. possesses adequate technical understanding of the DNS to avoid a legal decision that could lead to technical and political instability â many nations would not wish to continue in a DNS coordinated by a U.S. non-profit corporation if it could be ordered by a U.S. court to transfer control of any nationâs ccTLD. This decision will also hopefully tamp down calls by some parties for ICANNâs place of incorporation to be moved outside of the U.S. by demonstrating that ICANNâs jurisdiction does not create a threat to other nationâs ccTLDs. Remaining jurisdiction issues will be addressed in work stream 2 of ICANNâs ongoing accountability process.
While the plaintiffs could seek Supreme Court review of the decision, theÂ Supreme Court would likelyÂ be unwilling to take the case given the rarity of the legal question it presented, and the lack of any split in Circuit Court decisions on it.
The operative portion of the decision states:
We assume without deciding that the ccTLDs the plaintiffs seek constitute âpropertyâ under the FSIA and, further, that the defendant sovereigns have some attachable ownership interest in them. Nonetheless, pursuant to the terrorist activity exception, the court has the âauthorityâ to âprevent appropriately the impairment of an interest held by a person who is not liable in the action giving rise to a judgmentââi.e., we are expressly authorized to protect the interests of ICANN and other entities. 28 U.S.C. Â§ 1610(g)(3). Because of the enormous third-party interests at stakeâand because there is no way to execute on the plaintiffsâ judgments without impairing those interestsâwe cannot permit attachment.Â
The plaintiffs demand, in effect, that ICANN delegate management of the â.irâ ccTLD28 so that they can âsell or license the operation of the ccTLD to a third party.â Appellantsâ Reply Br. at 26. As explained, the power to operate a ccTLD includes the power to register (or remove) domain names from that registry. Thus, an entity seeking a â.irâ domain name will have to register through the plaintiffs or their designeeâa process in which the ccTLD manager can extract a fee. The plaintiffsâ plan plainly impairs the interests of âperson[s] who [are] not liable in the action giving rise to [the] judgmentâ in myriad ways. 18 U.S.C. Â§ 1610(g).Â
First, requiring ICANN to delegate â.irâ to the plaintiffs would bypass ICANNâs process for ccTLD delegation, which includes ensuring that the incoming manager has technical competence and a commitment to serving the Iranian Internet communityâs interests. The plaintiffs and, more importantly, their prospective designee may not possess that technical competence or commitment. Granted, the plaintiffs are âaware that the . . . court canâand shouldâprotect the interests of third partiesâ and they âwelcome the opportunity to work together with the district court and ICANN to ensure a smooth transition.â Appellantsâ Reply Br. at 26. But even if the plaintiffs are able to show adequate competence and commitment, the act of forced delegation itself impairs ICANNâs interest in âprotect[ing] the stability . . . [and] interoperability . . . of the DNS.â Decl. of John O. Jeffrey, Appâx 24.2 Â¶ 5.
Recall that a change in the root zone file will only affect the routing of a search for â.ir.â But a change in the root zone file does not also transfer the information stored on the ccTLD server. To ensure that any delegation occurs seamlessly, ICANN requires that the incoming manager provide a plan to preserve the stability of the ccTLD, which plan explains how existing registrants will be affected. According to ICANN, the current ccTLD managers in the defendant countries will not voluntarily transfer information regarding their registrants and, because the relevant servers are located abroad, we are powerless to so require them. If ICANN is required to direct an end-user looking for â.irâ web pages to the plaintiffsâ server but the plaintiffs are unable to direct them to the requested SLD, the Internetâs stability and interoperability are undermined.Â
The impairment does not end there. As the plaintiffs recognize, ICANN occupies its position only because âthe global community allows it to play that role.â Appellantsâ Br. at 34 (emphasis added). â[T]he operators of . . . top level domainsâ can âform a competitor to ICANN and agree to refer all DNS traffic to a new root zone directory.â Id.; see also Br. for United States as Amicus Curiae at 13 (âAs a technological matter, nothing prevents an entity outside the United States from publishing its own root zone file and persuading the operators of the Internetâs name servers to treat that version as authoritative instead.â). This result, known as âsplitting the root,â is widely viewed as a potentially disastrous development; indeed, some regard it as the beginning of âultimate collapse of Internet stabilityââa âdoomsday scenario for the globally accessibleâ network and, thus, for ICANN. Harold Feld, Structured to Fail: ICANN and the âPrivatizationâ Experiment, in WHO RULES THE NET?: INTERNET GOVERNANCE AND JURISDICTION 351 (Cato Inst. 2003). Whether that description of a split root is accurate need not concern us; ICANNâs interests, as a third party ânot liable in the action giving rise to [the] judgment,â 18 U.S.C. Â§ 1610(g)(3), are sufficient for us to protect them pursuant to section 1610(g)(3) of the FSIA. See Appelleeâs Br. at 34 (â[F]orced re-delegation of the Subject ccTLDs would . . . wreak havoc on the domain name system.â); see also Br. for United States as Amicus Curiae at 13 (â[T]he result would be devastating for ICANN, for the [current] model of Internet governance, and for the freedom and stability of the Internet as a whole.â).Â
But given that the ICANN-administered DNS is the beneficiary of substantial network effects, how could such a doomsday scenario arise? And why would forced delegation hasten its arrival?Â In light of the plaintiffsâ recognition that ICANNâs control âstems only from the fact that the global community allows it to play that role,â Appellantsâ Br. at 34, and considering that the delegation of the three defendant sovereignsâ ccTLDs could likely antagonize the global community, see Br. for United States as Amicus Curiae at 13 (âIt is not difficult to imagine that a court-ordered change to the authoritative root zone file at the behest of private plaintiffs would prompt members of the global Internet community to turn their backs on ICANN for good.â), we believe the doomsday scenario is not beyond imagining.Â
For the foregoing reasons, the judgment of the district court is affirmed. (Emphasis added)
This article by Philip Corwin from the Internet Commerce Association was sourced with permission from: