Tag Archives: Iran

ICANN’s .IR Response Opens Legal Can of Worms by Philip Corwin, Internet Commerce Association

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:

In Case Over Attempts To Seize Iran’s ccTLD, ICANN Tells Court ccTLDs Are Not Property

ICANN has told a US federal court in the District of Columbia, that a ccTLD cannot be considered “property,” and thus cannot be attached by plaintiffs in a lawsuit, who are trying to obtain the assets of countries that they argued have supported terrorism.”We filed a Motion to Quash in the US federal court today, to ensure that the court has the essential information about how the Internet’s domain name system (DNS) works. While we sympathise with what plaintiffs may have endured, ICANN’s role in the domain name system has nothing to do with any property of the countries involved”, said John Jeffrey, ICANN’s General Counsel and Secretary.”We explained in our Motion to Quash, that country code Top-Level Domains (ccTLD) are part of a single, global interoperable Internet which ICANN serves to help maintain.” Jeffrey further explained that “ccTLD’s are not property, and are not ‘owned’ or ‘possessed’ by anyone including ICANN, and therefore cannot be seized in a lawsuit.”ICANN’s arguments were put forth when the victims of terrorism who had successfully won lawsuits against Iran, Syria and North Korea, sought to collect on those civil judgments. In their attempt to recover assets from these countries, the plaintiffs served ICANN with “writs of attachment” and subpoenas seeking information to help them seize the ccTLDs of those nations.ICANN also argued that if ccTLDs were property, they would not be “in the US” and therefore subject to attachment — rather the ccTLDs are located where the servers that contain the domain are located — in this case in Syria, Iran and North Korea, Paul Rosenzweig wrote on the Lawfare blog.Rosenzweig, a conservative attorney, also wrote that ICANN “argues that the suit is barred by the sovereign immunity of the “property” owners; and that it lacks legal authority to make the transfer requested. Finally (and to my mind most persuasively) it argues that having US courts force the re-delegation of the domains would destroy their entire value and go a long way to fracturing and destroying the general domain name system of the internet.”If successful, as I wrote on Domain Pulse/Domain News, the case could set a precedent and mean countries such as North Korea and Syria could lose control of their ccTLDs. The case was won by families in late June who won American federal court judgments that amount to more than a billion dollars against the Iranian government seeking 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 ccTLDs (and related IP addresses) targeted by the plaintiffs include; .IR (Iran), .SY (Syria) and .KP (North Korea), as well as internationalised top-level domains in non-ASCII characters for Iran and Syria.”This is the first time that terror victims have moved to seize the domain names, IPs and internet licenses of terrorism sponsoring states like Iran and are attempting to satisfy their court judgments,” attorney Nitsana Darshan-Leitner of Tel-Aviv said in a statement in June. “The Iranians must be shown that there is a steep price to be paid for their sponsorship of terrorism. In business and legal terms it is quite simple – we are owed money, and these assets are currency worth money.”

Israeli And American Terrorism Victims Sue To Seize Iran’s ccTLD

A group of victims of terrorism from Israel and the United States have moved to attach and seize the internet licenses, contractual rights and domain names being provided by the United States to the extremist regime in Tehran.If successful, the case could set a precedent and mean countries such as North Korea and Syria could lose control of their ccTLDs. The announcement came this week from 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 have been served on ICANN.The families are represented in this unprecedented civil action by attorney Nitsana Darshan-Leitner of Tel-Aviv, Israel and Robert Tolchin of New York.”This is the first time that terror victims have moved to seize the domain names, IPs and internet licenses of terrorism sponsoring states like Iran and are attempting to satisfy their court judgments,” Darshan-Leitner said in a statement. “The Iranians must be shown that there is a steep price to be paid for their sponsorship of terrorism. In business and legal terms it is quite simple – we are owed money, and these assets are currency worth money.”In cases brought in the US by the terror victim plaintiff/judgment holders against Iran, the districts courts have 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 has 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.Darshan-Leitner has successfully seized $120 million in Iranian assets from sources like real estate, historic artefacts and bank accounts for victims, according to a report in the New York Post. The strategy was called “very creative and very aggressive” by Ned Rosenthal, an intellectual property lawyer who is not involved in the case the report continued.The article went on to say Rosenthal and his colleague Beth Goldman were sceptical the suit would ultimately prevail.”I don’t know that ICANN even holds that kind of money or assets to pay out,” Goldman told the New York Post, explaining that the power to control IP addresses and domain names often belongs to third party registries based in each country.”It’s unclear what ICANN can do or what their authority is,” she added.Under an exception to the Foreign Sovereign Immunities Act (28 U.S.C. § 1610(g)), legislated to assist terror victims to collect judgments against foreign states abrogates Iran’s sovereign immunity for claims arising from acts of terrorism and subjects to attachment “the property of a foreign state… and the property of an agency or instrumentality of such a state, including property that is a separate juridical entity or is an interest held directly or indirectly in a separate juridical entity.”According to Baruch Ben-Haim whose son Shlomo was severely injured in a 1995 terrorist bombing of an Israeli bus: “It’s not right that the US government would provide these licenses to Iran while it is refusing to pay off the judgments handed down against it for funding global terrorism. The federal court awards given to our families must be satisfied.””For years the Iranian government has refused to pay its judgments, thumbing its nose at these terror victims and the American court system,” said Darshan-Leitner. “Our clients continue to suffer from the suicide bombing that Iran financed in Jerusalem nearly seventeen years ago. It is not our intention to shut down Iran’s internet usage, but we want what is rightfully due. If by seizing any funds earned from these licenses and contractual rights we can satisfy the judgments, we will have served our clients.”

Daily Wrap: Opposition To Google, Amazon gTLDs; Iranian Group Pressures ICANN/RIPE On Internet Disconnection; Canadian Lodges ICANN Cybersquatting Complaint & Olympic gTLD Protections

A number of those involved in the domain name industry, led by Michele Neylon of Ireland’s Blacknight, are planning to complain to ICANN about dozens of single-registrant new gTLD applications filed by Google and Amazon, reports Domain Incite.

The report notes the “signatories of a new letter are bothered by plans by these companies and others to hold dictionary word gTLDs for their own exclusive use, not allowing regular internet users to register domains.”

So far the letter has been signed by 13 people, many of whom work for registrars.

Another Domain Incite report notes “ICANN wants to try to put the unresolved issues surrounding the Uniform Rapid Suspension system to bed and is planning a meeting in a couple of weeks time to solicit community input.”

There have also been calls for Iran to be disconnected from the internet to impede its activities.

According to a New York Times report, “United Against Nuclear Iran, an advocacy group that helped pressure a global banking communications network to expel sanctioned Iranian banks, said it had undertaken a new effort to force the authorities who assign international Internet addresses to block sanctioned Iranian entities and persons from access to the Web.”

The group has sent letters to ICANN and RIPE NCC that claim the organisations “may be in violation of Iran sanctions and that by disconnecting Internet access, ‘the dictatorial regime of Iran would be severely impeded in pursuing its illegal and amoral activities.’”

ICANN did not respond to the Times’ requests for comment, but RIPE, based in Amsterdam, said in a statement on their website that “RIPE NCC is in contact with the Dutch Ministry of Foreign Affairs to ensure that we operate in accordance with Dutch law and all applicable international sanctions. Our advice from the Ministry has been that the RIPE NCC is not in violation of these sanctions. However, we will investigate in cases where new information is provided to us and we will ensure that changing circumstances do not place the RIPE NCC in violation of sanctions.”

And in another Domain Incite report, “ICANN and several domain name companies have been slapped with a bizarre, virtually incomprehensible anti-cybersquattng lawsuit in Virginia.”

“Canadian Graham Schreiber, registrant of landcruise.com, has beef primarily with CentralNic — the UK-based company that sells third-levels domains under us.com, uk.com and the like — and one of its customers.”

Schreiber has apparently “discovered that a British individual named Lorraine Dunabin — who has a UK trademark on the word Landcruise — had registered both landcruise.co.uk and landcruise.uk.com.”

And then “having failed to take the .co.uk using Nominet’s Dispute Resolution Service (repeatedly referred to in the complaint as UDRP), Schreiber has instead filed this lawsuit to accuse Dunabin of ‘Dilution, Infringement [and] Passing off’ by registering the .uk.com.”

In another Domain Incite report, “ICANN’s board of directors has set itself a deadline [of 31 January] to come to a decision on special new gTLD protections for the International Olympic Committee and Red Cross.”