While the United Nations has deemed government-orchestrated internet shutdowns to be a human rights violation, Iran continues to push the limits
The United States Justice Department announced Thursday they have seized 27 domain names they allege were unlawfully used by Iran’s Islamic Revolutionary Guard Corps (IRGC) to further a global covert influence campaign.
[news release] The United States has seized 92 domain names that were unlawfully used by Iran’s Islamic Revolutionary Guard Corps (IRGC) to engage in a global disinformation campaign, announced the Department of Justice.
Victims of terrorism can’t seize the country code Top Level Domains (ccTLDs) of countries that owe hundreds of millions of dollars in US court judgements a US court ruled Tuesday, saying that ruling otherwise would threaten the stability of the internet, the National Law Journal reported.”The terror victims wanted to claim the country codes for Iran, Syria and North Korea (.ir, .sy and .kp, respectively) to satisfy judgments against those countries.””The U.S. Court of Appeals for the D.C. Circuit … said the country codes couldn’t be seized to satisfy judgments under the Foreign Sovereign Immunities Act. Allowing the plaintiffs to control that data could undermine the functioning of the entire internet, Judge Karen LeCraft Henderson wrote in Weinstein v. Islamic Republic of Iran. The court had authority to protect the interests of third parties, including the Internet Corporation for Assigned Names and Numbers, or ICANN, which manages internet domain names worldwide, and had backing in the case from the U.S. Department of Justice.”A ruling that internet names belong to governments and that their ownership can be transferred could lead to ‘an Internet that is less stable, secure, and free,’ the DOJ lawyers argued in court papers.”In light of the plaintiffs’ recognition that ICANN’s control ‘stems only from the fact that the global community allows it to play that role’ … and considering that the delegation of the three defendant sovereigns’ [country code top-level domains] could likely antagonize the global community … we believe the doomsday scenario is not beyond imagining,” Henderson wrote.”Plaintiffs in a group of terrorism cases went to ICANN in June 2014 seeking to attach the country code domains for Iran, Syria and North Korea. ICANN went to the U.S. District Court for the District of Columbia to quash those requests, writing that it had ‘great sympathy’ for the plaintiffs, but that the country codes couldn’t be used to satisfy the judgments. In November 2014, U.S. District Judge Royce Lamberth granted ICANN’s request, finding that the domain names were not ‘goods, chattels [or] credits’ under D.C. law that could be attached.”The D.C. Circuit side-stepped the D.C. law question. Instead, the court considered the plaintiffs’ ability to seize the country codes under the federal Foreign Sovereign Immunities Act. The law shields foreign governments from litigation in U.S. courts, but there are exceptions, such as in terrorism cases.”Even assuming the domain names were subject to the terrorism exception and that Iran and the other countries had a financial interest in them, Henderson wrote, the court still could not allow the plaintiffs to seize them. There were ‘enormous third-party interests at stake,’ Henderson wrote. Giving the plaintiffs control of the country codes would bypass ICANN processes and potentially undercut ICANN’s role in maintaining internet stability, she said.To read the National Law Journal report in full, see:
Abstract: Can ccTLDs be considered property? Or are they sovereign rights? Or are they somehow both? In recent litigation involving the top level domain for Iran (.IR), plaintiffs sought to garnish the domain as a form of property that could be used to compensate victims of terrorist acts allegedly backed by the Iranian state. Similar cases seeking to garnish ccTLDs have affected Syria (.SY) and the Congo (.CG).In the theory and practice of Internet governance, there is a tendency to resist recognizing ccTLDs as a property right. These arguments tend to view ccTLDs as trustee relationships and argue that recognizing private property rights will undermine the rights of the domain registrants within the ccTLDs. Some (but not all) court cases have found that second-level domains are not property, but services.On the other hand, governments are keen on asserting sovereignty rights over ccTLDs. They claim that sovereigns should be the ultimate authority over delegation and public policy for ccTLDs. In countries like Iran with a long-term conflict with the US, sovereignty rights are thought to immunize them from confiscation by outsiders. Some sovereignty claims closely mirror property claims.In physical space, sovereign states have recognized territories. Sovereignty results primarily from a state’s ability to maintain a monopoly on the legitimate use of violence in that territory, but also from recognition of its sovereignty by other states. In cyberspace, the delegation of a domain name representing a country (e.g., .BR for Brazil, or .IN for India) involves an unusual three-party relationship between a government, a party that operates the domain (delegee) and ICANN. ICANN, as the global coordinator and policy maker for the domain name space, must delegate a country code or name to a specific operator – otherwise the domain simply does not exist on the Internet. And because the DNS root is a globally shared resource, its management involves more than the wishes of the sovereign state but also involves obligations to “the global Internet community.” Yet, as a nonprofit under U.S. federal and California jurisdiction, ICANN’s role seemingly subjects ccTLD delegees to civil law claims of the sort seen in the Iran and Congo cases.What, then, is the best way to shape the relationship between ccTLD delegees, ICANN and the governmental authority referenced by a ccTLD string, and what role should sovereignty or property rights claims play? The scholarly literature has left these questions unsettled. It has studied mainly the relationship between states and ICANN, or between the state and the ccTLD delegee. Studies that consider the triangular relationship of ICANN, delegees and states have not applied both property and sovereignty theories. Either it has assumed that states have sovereignty rights over their ccTLDs, or it has not dealt with the applicability of the theories of sovereignty and property rights to this relationship.This paper uses a law and economics framework to analyze the relationship between ccTLD delegation, theories of sovereignty and theories of property rights. While property is a private right and sovereignty is a public right, international relations theorists have argued that they have some commonalities. Both, for example, involve claims of exclusivity. Both are also invoked in allocating rights over international resources, such as rights over the sea and over space. By critically and systematically examining the consequences of applying sovereignty and property rights to ccTLDs, this paper attempts to provide practical insights into the best way to handle conflicting claims over ccTLD delegations.To download this paper, go to:
In November, a US federal court that ccTLDs are not “subject to attachment” in a case brought by victims of terrorism. However the plaintiffs are now appealing that decision.The victims of terrorism in the case came from Israel and the United States. They sued to have the assets of the Iranian (.IR), Syrian (.SY) and North Korean (.KP), (as well as internationalised TLDs for Iran and Syria) ccTLDs seized for compensation have failed.The federal court ruled that the ccTLD’s “at issue may not be attached in satisfaction of plaintiffs’ judgements because they are not property subject to attachment under District of Columbia law.”The court ruled that under District of Columbia law their attachment is not permissible. However the court also noted that even though ccTLDs may not be attached, it did not mean they cannot be property. In a footnote, “the Court concluded that ccTLDs may not be attached as a matter of District of Columbia law, there are no factual disputes that require further consideration. Therefore, the Court denies the plaintiffs’ motion for discovery as moot.”The federal court ruling agreed with ICANN’s legal filings in the case. ICANN sought to quash the writs of attachment citing ICANN’s technical coordination role in the domain name system (DNS) and arguing that ccTLDs are not subject to attachment.At the time ICANN noted they were pleased with the ruling.”We are pleased that the court ruled in our favour on the grounds that the ccTLDs are not property, subject to attachment”, said John Jeffrey, ICANN’s General Counsel and Secretary. “The court’s ruling demonstrates a technical understanding of the DNS, and the role of ccTLDs in the single, global, interoperable internet.Should the appeal be successful, it could set a precedent and mean countries, in this case Iran, North Korea and Syria, could lose control of their ccTLDs. The case was brought by families who have won American federal court judgments that amount to more than a billion dollars against the Iranian government seek to own all the TLDs provided by the US to Iran including the .ir TLD, the ‘̱’F TLD and all Internet Protocol (IP) addresses being utilised by the Iranian government and its agencies. The court papers were served on ICANN.The case followed earlier cases brought in the US by the terror victim plaintiff/judgment holders against Iran. The districts courts repeatedly ruled that the suicide bombing and shooting attacks perpetrated by the Hamas and Islamic Jihad terrorist organisations in Israel were funded by the Islamic regime through MOIS. However, although the families have received compensatory and punitive damage judgments against the defendants, Iran refused to satisfy the court awards. Iran has been designated by the Department of State as an outlaw nation that provides material support and resources to terrorist groups worldwide since 1996.For more details on the case, including an interview with one of the plaintiff’s lawyers, see Kieren McCarthy’s article in The Register here.
On November 10th the US District Court for the District of Columbia granted ICANNâs motion to quash a writ of attachment and a related motion for further discovery in a politically charged case in which private plaintiffs sought to seize control of Iranâs .IR ccTLD.
The litigation was brought under a US law that allows victims of terrorism and their families to seize the assets of foreign nations that funded the related terrorist acts. While most of the plaintiffs were targeting Iran the decision also covered the ccTLDs for Syria and North Korea.
In its Order in the case of Stern v. Islamic Republic of Iran the Court wrestled with the issue of whether a ccTLD could be attached in satisfaction of a judgment. In reaching its decision, the Court stated:
There is little authority on the question of whether Internet domain names may be attached in satisfaction of a judgment. Indeed, no reported decision of any American court appears to have decided the specific issue of whether a ccTLD may be attached. The Virginia Supreme Courtâs discussion of these issues in Network Solutions, Inc. v. Umbra Intâl, Inc., 529 S.E.2d 80 (Va. 2000) is helpful in illuminating the questions presented. There, the court held that a domain name could not be garnished by a judgment creditor under the relevant Virginia statute because it was âinextricably boundâ to the domain name services provided by the registry operator. Id at 86. The court elaborated: Â â[W]hatever contractual rights the judgment debtor has in the domain names at issue in this appeal, those rights do not exist separate and apart from [the registry] services that make the domain names operational Internet addresses.â Id. The court further observed that allowing garnishment of a registryâs services as part of garnishing a right to a domain name would mean that âpractically any service would be garnishable.â Id. at 86-87.
The Court finds this reasoning persuasive as applied to District of Columbia attachment law as well. The ccTLDs exist only as they are made operational by the ccTLD managers that administer the registries of second level domain names within them and by the parties that cause the ccTLDs to be listed on the root zone file. A ccTLD, like a domain name, cannot be conceptualized apart from the services provided by these parties. The Court cannot order plaintiffsâ insertion into this arrangement. (Emphasis added)
As can be seen, this Federal Court decided this 2014 case involving a top level ccTLD by relying on a 2000 Virginia Supreme Court decision involving a second level domain at a generic top level domain (gTLD).
But, while analogizing the operation of a ccTLD to the provision of services, the Court did not decide that TLDs or, by analogy, second level domains were not a form of property.
In footnote 2 of its decision the Court makes that distinction quite clear by again citing the 2000 Network Solutions case:
The Court notes that judicial decisions have construed domain names to be a form of intangible property. See, e.g., Kremen v. Cohen, 337 F.3d 1024, 1030 (9th Cir. 2002). Â But the conclusion that ccTLDs may not be attached in satisfaction of a judgment under District of Columbia law does not mean that they cannot be property. It simply means that they are not attachable property within this statutory scheme. Â Indeed, in Network Solutions, the Virginia Supreme Court nodded to this precise point in stating that it was not âessential to the outcome of this case to decide whether the circuit court correctly characterized a domain name as a âform of intellectual property.ââ Â (Emphasis added)
This decision thus Â leaves open the possibility that domains may constitute a form of intellectual property that cannot be attached to satisfy a judgment. Reaching that conclusion in future litigation might provide domain owners with arguments for greater parity with trademark rights while protecting their assets against attachment and other legal processes.
ICANN issued a press release in response to the decision in which John Jeffrey, its General Counsel and Secretary, stated, âWe are pleased that the court ruled in our favor on the grounds that the ccTLDs are not property, subject to attachment. The courtâs ruling demonstrates a technical understanding of the DNS, and the role of ccTLDs in the single, global, interoperable Internet.â Unfortunately, that declaration misstates the judicial opinion, which took no position on whether ccTLDs were some form of property, but simply determined that their service-like aspects protected them from judicial attachment.
It is not known at present whether plaintiffs in the case will seek to appeal this important decision. In addition to adding to the slim body of court decisions regarding the legal status of domains, the ruling also defuses a huge potential political problem for both ICANN and the United States in the midst of ongoing ICANN community discussions of the IANA functions transition and related enhanced accountability measures for ICANN. If a US Court â especially one as prestigious as the DC District Court â declared that it had the authority to order the transfer of a nationâs ccTLD to private litigants it would undoubtedly trigger a global outcry against ICANNâs continued status as a non-profit, private-sector led corporation under California law. That in turn could strengthen the hand of those nations that would prefer to see ICANNâs functions transferred to the International Telecommunications Union or to a newly created UN agency under intergovernmental control.
Â This article by Philip Corwin from the Internet Commerce Association was sourced with permission from:
Victims of terrorism from Israel and the United States who sued to gain the assets of the Iranian (.IR), Syrian (.SY) and North Korean (.KP), (as well as internationalised TLDs for Iran and Syria) ccTLDs seized for compensation have failed.The decision came as a result of a U.S. federal court ruling that the ccTLD’s “at issue may not be attached in satisfaction of plaintiffs’ judgements because they are not property subject to attachment under District of Columbia law.”The court ruled that under District of Columbia law their attachment is not permissible. However the court also noted that even though ccTLDs may not be attached, it does not mean they cannot be property. In a footnote, “the Court concluded that ccTLDs may not be attached as a matter of District of Columbia law, there are no factual disputes that require further consideration. Therefore, the Court denies the plaintiffs’ motion for discovery as moot.”The ruling agreed with ICANN’s legal filings in the case. ICANN sought to quash the writs of attachment citing ICANN’s technical coordination role in the domain name system (DNS) and arguing that ccTLDs are not subject to attachment.”We are pleased that the court ruled in our favour on the grounds that the ccTLDs are not property, subject to attachment”, said John Jeffrey, ICANN’s General Counsel and Secretary. “The court’s ruling demonstrates a technical understanding of the DNS, and the role of ccTLDs in the single, global, interoperable internet.Had the case been successful, the case could have set a precedent and meant countries, in this case Iran, North Korea and Syria, could lose control of their ccTLDs. The case was brought by families who have won American federal court judgments that amount to more than a billion dollars against the Iranian government seek to own all the TLDs provided by the US to Iran including the .ir TLD, the ایران TLD and all Internet Protocol (IP) addresses being utilised by the Iranian government and its agencies. The court papers were served on ICANN.The case followed earlier cases brought in the US by the terror victim plaintiff/judgment holders against Iran. The districts courts repeatedly ruled that the suicide bombing and shooting attacks perpetrated by the Hamas and Islamic Jihad terrorist organisations in Israel were funded by the Islamic regime through MOIS. However, although the families have received compensatory and punitive damage judgments against the defendants, Iran refused to satisfy the court awards. Iran has been designated by the Department of State as an outlaw nation that provides material support and resources to terrorist groups worldwide since 1996.ICANN has published the ruling at:
An initial review of ICANNâs response to litigation seeking it to turn over control of the ccTLDs of Iran, Syria and North Korea led to the conclusion that it had opened a âlegal can of wormsâ. A few more just wriggled out, and they threaten the basic assumption that underlies the U.S. statute governing cybersquatting and the practices engaged in by Federal officials seizing domain names engaged in intellectual property infringement.
In a blog post, âAre Internet domain names âpropertyâ?â, placed at the influential Volokh Conspiracy legal discussion website, Temple University Law Professor David Post further explores the implications of ICANNâs response. His comments carry considerable weight, as he is also a Fellow at the Center for Democracy and Technology, an Adjunct Scholar at the Cato Institute, and a member of the Board of Trustees of the Nexa Center for Internet and Society.
Professor Post starts out by declaring his distaste for âresolving through private litigation matters that are more properly viewed as substantial international disputes between nation-statesâ. That aversion is heightened when it âembroils ICANN in either (a) complicated questions of international politics or (b) the resolution of private disputesâ. And he gets to the heart of the potential international political dangers of this litigation with his observation that, âthe notion that the decisions of US courtsÂ can interfere in ICANNâs management of the domain name system in aÂ way that courts elsewhere cannotâ¦ will not go over very well in an international community that already thinks the US government exercises too much control over ICANN, and over Internet infrastructure in general.
While agreeing with ICANNâs argument that a ccTLD is not property, he goes on to observe that this contention is actually at sharp odds with existing U.S. law and enforcement practices involving the protection of trademarks and copyrights:
Itâs a very sensible argument, and Iâve made it myself many times. Â The problem, though, is that US law already â very unfortunately, in my view, but there you are â treats domain names as if they were âpropertyâ. Â The Anti-Cybersquatting Protection Act permits aggrieved trademark owners to institute in remÂ actions against domain names whose owners are located abroad (and not subject to the jurisdiction of the US courts) â to seize the domain names and then to adjudicate the rights associated with them, on the fiction that the names are indeed property located in the judicial district where the particular domain name registry is located. Â On very much the same theory â that domain names are seizeable âpropertyâ â the Dept. of Homeland Security has issued several thousand seizure orders over the past few years against domain names allegedly involved in large-scale copyright infringement. Â
Professor Post, after noting that, âI would expect the plaintiffs here to press this argument in opposition to ICANNâsÂ motions to quashâ, concludes his post with the hope that âICANNâs other arguments are strong enough that the judge can (and hopefully will) grant its motion without having to delve into this rather tricky nomenclatural minefield about what is, and what isnât, propertyâ.
But what if the case doesnât play out that way? What if the plaintiffs raise the âare domains property?â issue with sufficient force to get the DC Court of Appeals to rule on it? What if the politically fraught nature of this case propels it on to the Supreme Court, which may have to resolve conflicting Appeals Court decisions that have split on whether second level domains are property or just a form of licensure?
Any holding that domains are not property could well be the basis for a challenge to the in rem provision of the ACPA, and to ICEâs domain seizure practices.
There is of course an argument to be made that ccTLDs assigned to nation-states and whose relationship with ICANN is strictly voluntary are fundamentally different in legal character than gTLDs that are based upon a registry agreement contract between the operator and ICANN. But that argument is most unlikely to be raised in this case as it only involves ccTLDs.
Lots of parties not involved in this litigation have a considerable stake in it. New gTLD applicants that have expended large investments in their registries would like certainty over the U.S. legal status of them, since all registry contracts are governed by US law. While there is no consensus within the domain investment community as to whether it would be desirable to have interests in second level domains classified as a property right, it seems axiomatic that if a gTLD is found to not constitute property than a second level subunit of it will likewise lack that status. And trademark and copyright owners may not be pleased with any judicial decision that undermines the basis of their current online protections.
This is but the latest potential fallout of this most unusual case. More consequences may be in the offing. Stay tuned.
This article by Philip Corwin, Internet Commerce Association, was sourced with permission from:
ICANN has filed its initial response to writs of attachment issued by U.S. Courts that seek to have ICANN transfer control of the country code top level domains (ccTLDs) of Iran, Syria and North Korea to plaintiffs in various legal actions. The lawsuits were brought under a U.S. law that permits victims of terrorism and their family survivors to seek the assets of governments that provided support or direction of the terrorist acts.As expected, ICANN vigorously opposed the court orders and sought to quash them. In an “everything and the kitchen sink” defense, ICANN argues that ccTLDs are not “property”; are not ‘owned” by the nations to which they are assigned; are not within US jurisdiction; are not subject to court jurisdiction under the Foreign Sovereign Immunities Act (FSIA) even if they are “property”; are not subject to ICANN’s unilateral power under its existing contractual agreements; and that forced re-delegation of the ccTLDs would destroy their value and thus be futile. All these arguments raise subsidiary questions of law and policy.Anything less than full court opposition by ICANN to the writs of attachment would be politically explosive – especially at a time when the IANA functions contract and its remaining official relationship with the US government is in transition.I have just completed a quick scan of the ICANN filing in the case of Ben Haim vs. Islamic Republic of Iran (although all of ICANN’s responses in the separate cases appear identical) and have a few preliminary observations – all of which relate to the central observation that this case has opened up a can of worms of legal issues:
- The filing does its best to distinguish ccTLDs from gTLDs. However, because all the relevant US case law involves gTLDs it is forced to cite it and that inevitably muddies the distinction to some extent. For example, at p. 11 of the Motion to Quash (p.21 of the PDF) it cites the 1999 decision of the 9th Circuit in Lockheed Martin vs. Network Solutions which held that the then-manager of the .com registry fell “squarely on the ‘service’ side of the product/service distinction”. Extending this analogy to the present would imply that all incumbent and new gTLD registry operators, including those of .brand registries, have no property rights in those registries, notwithstanding the fact that all the relevant contracts with ICANN provide for a strong presumptive right of renewal.
- At the top of page 18 (28), the memo makes the argument that, under the Foreign Sovereign Immunities Act (FSIA), Plaintiffs must show that the “property in the United States of a foreign state” is “used for a commercial activity in the United States”. While .IR and the other ccTLDs at issue have no commercial contacts in the U.S., this is not true for .CO and other ccTLDs that have been repurposed as quasi-gTLDs and are being administered by entities located within the U.S. – noting, of course, that this consideration would only be of consequence if a ccTLD with US commercial contacts was determined to constitute “property” under US law.
- At p.20 (30) of the memo, it is noted that ICANN’s authority is limited to recommending a transfer of the ccTLD to the Department of Commerce (DOC) under the current IANA contract; that under that contract ICANN may only recommend re-delegation for narrow technical and ministerial reasons; and that DOC retains the ultimate authority on the matter (in essence, this position tosses this “hot potato” case into DOC’s lap).
However, this argument immediately raises the question of what the situation will be for ccTLDs will be after the IANA transition, when DOC no longer possesses final authority on TLD re-delegations and when there may be no contract at all in place governing the conduct of the IANA functions. Ironically, terminating the IANA contract between DOC and ICANN may place ccTLDs at greater risk of being re-delegated pursuant to the judicial orders of U.S. courts because this fallback contractual argument will no longer be available!For now at least the DOC does not have to take any position on these disputes, as ICANN has not recommended that any of the ccTLDs be re-delegated pursuant to the Writs. It is probably accurate to speculate that the DOC would prefer to never be asked to make the decision of whether such actions should be taken to compensate US terror victims under applicable US law, as all the answers available would have significant domestic and international political and legal repercussions.Again, these are just preliminary views based on a quick initial review of the filing. But, while ICANN has done its best to quash the writs of attachment for the ccTLDs in question, its arguments raise multiple other questions and issues.Now we must await the response of plaintiffs to these motions, assuming that they will make their best efforts to blow holes in them.But, however these cases proceed, they cannot answer the question of what the judicial exposure of ccTLDs will be when and if the IANA contract is transferred or extinguished, presuming that ICANN remains a non-profit corporation organized under California law – much less what the answer would be if ICANN ever made the IANA functions subject to another nation’s jurisdiction.ICANN’s press release regarding its response is at https://www.icann.org/resources/press-material/release-2014-07-30-en.Its legal filings are at https://www.icann.org/resources/pages/icann-various-2014-07-30-en.The original Writs of Attachment are at https://docs.google.com/file/d/0B_dOI5puxRA9M3hweE9Eel9mVTQ/edit?pli=1.This article by the Internet Commerce Association’s Philip Corwin was sourced with permission from: