Re: [CCWG-ACCT] Weinstein v. Iran
I think the arrangements you describe would be sufficient to protect the third party interests of registrants under a TLD. More could also be done to ensure that in any such delegation, the new owner doesn't impair the property and service interests of SLD registrants. What I don't understand is the court's feeling that ICANN's interest in the stability and interoperability of the DNS would be impaired by a legally mandated redelegation. I think that argument is just plain false. A redelegation does not create a compatibility issue. I don't think the court understands what ICANN does and was overly swayed by hysterical USG amicus brief that claimed that the whole "model of internet governance" would be destroyed by a pro-plaintiff decision. --MM From: Diego R. Canabarro [mailto:diegocanabarro@nic.br] Sent: Thursday, August 4, 2016 2:30 PM To: accountability-cross-community@icann.org Cc: Mueller, Milton L <milton@gatech.edu>; Phil Corwin <psc@vlaw-dc.com>; David Post <david.g.post@gmail.com> Subject: Re: [CCWG-ACCT] Weinstein v. Iran Excellent post, Milton. Do you think the ruling would have been different in case ICANN had any sort of direct access to the database (e.g.: through a escrow service provider)? Put it differently: in case ICANN had access to a full replication of the ccTLD database and could keep things running smoothly, do you the ruling should be different? Best Diego -- Diego R. Canabarro Equipe de Assessoria do CGI.br / CGI.br Advisory Team <http://cgi.br/> Núcleo de Informação e Coordenação do Ponto BR - NIC.br <http://nic.br/> diegocanabarro@nic.br<mailto:diegocanabarro@nic.br> +55 11 5509 4116 | 5509 1855 PGP Key 007A14F5 Em qui 04 ago 2016, às 18:15:56, Mueller, Milton L escreveu:
As some of you know we've been doing some serious research on this topic and
here is our take on the court decision:
http://www.internetgovernance.org/2016/08/04/plaintiffs-cant-seize-ir-court
-rules/
From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>
[mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Phil
Corwin Sent: Wednesday, August 3, 2016 5:46 PM
To: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>>
Cc: 'CCWG-Accountability' <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>
Subject: Re: [CCWG-ACCT] Weinstein v. Iran
Paul:
Greg Shatan raised the same quibble in a comment posted at the website, and
I replied as follows-
Greg:
Thanks for the positive review of a hastily composed article. You are
correct that the court expressed an assumption that a ccTLD constituted an
attachable property interest, but did not decide that it was. While that
assumption might be cited in a future case involving TLD matters it
certainly has little to no weight. Further, courts might well decide that a
nation's interest in its ccTLD, which is independent of any contractual
relationship with ICANN, differentiates ccTLDs from gTLDs, which are
dependent on being awarded such a contract by ICANN and can be lost if the
registry operator commits a material breach of the registry agreement.
Finally, whether or not ccTLDs or gTLDs constitute some type of property
interest is a separate question from whether second level domains
constitute a form of property. So yes, it was a very interesting outcome
but in no way determinative on the TLD as property issue. Best, Philip
You are correct that the Court took no position one way or another on
whether a TLD constitutes property, and leaves that issue for another case
at a later date.
Very best, Philip
Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From: David Post [mailto:david.g.post@gmail.com]
Sent: Wednesday, August 03, 2016 5:37 PM
To: Phil Corwin
Cc: Paul Rosenzweig; 'CCWG-Accountability'
Subject: Re: [CCWG-ACCT] Weinstein v. Iran
At 09:37 AM 8/3/2016, Phil Corwin wrote:
Content-Language: en-US
Content-Type: multipart/alternative;
boundary="_000_8E84A14FB84B8141B0E4713BAFF5B84E21188D2AExchangesierrac_"
FYI, yesterday I published a short article on the decision which can be
found at
http://www.circleid.com/posts/20160802_court_of_appeals_avoids_doomsday_eff
ect_in_iran_cctld_decision/
One small-ish quibble: you write:
"In reaching its decision, the Court opined (but did not decide) that a top
level domain constitutes an attachable property interest."
Not sure that's strictly correct. I think "opined" implies that the court
expressed an opinion about the matter (without actually deciding it). But
I don't think it did express an opinion one way or the other; it simply
said that it would "assume" that the ccTLDs constitute property, without
really considering the matter, because it would have no impact on the
outcome. I know it's a nit ... but the question of whether TLDs are
"property" is sure to come up again, and I don't think this opinion is any
support at all - even weak support - for the notion that they are. David
In it I state:
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 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 nation's ccTLD. This
decision will also hopefully tamp down calls by some parties for ICANN's
place of incorporation to be moved outside of the U.S. by demonstrating
that ICANN's jurisdiction does not create a threat to other nation's
ccTLDs. Remaining jurisdiction issues will be addressed in work stream 2 of
ICANN's ongoing accountability process.
Best regards to all
Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From:
accountability-cross-community-bounces@icann.org<mailto:accountability-cros<mailto:accountability-cross-community-bounces@icann.org%3cmailto:accountability-cros>
s-community-bounces@icann.org<mailto:s-community-bounces@icann.org>> [
mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Paul
Rosenzweig Sent: Wednesday, August 03, 2016 9:28 AM
To: 'CCWG-Accountability'
Subject: [CCWG-ACCT] Weinstein v. Iran
For those following along in the effort to attach the .ir (and other)
ccTLDs, the appellate court issued an opinion yesterday affirming the
decision of the court below rejecting the effort to attach the domain
(albeit on different grounds). Here is a link to the opinion:
https://www.cadc.uscourts.gov/internet/opinions.nsf/D35ACE5F0E9673C08525800
3005094AE/$file/14-7193.pdf
Paul
Paul Rosenzweig
509 C St. NE
Washington, DC 20002
paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchcons<mailto:paul.rosenzweig@redbranchconsulting.com%3cmailto:paul.rosenzweig@redbranchcons>
ulting.com> O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com<http://www.redbranchconsulting.com/<http://www.redbranchconsulting.com%3chttp:/www.redbranchconsulting.com/>>
www.paulrosenzweigesq.com<http://www.paulrosenzweigesq.com/<http://www.paulrosenzweigesq.com%3chttp:/www.paulrosenzweigesq.com/>>
My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/
No virus found in this message.
Checked by AVG - www.avg.com<http://www.avg.com<http://www.avg.com%3chttp:/www.avg.com>>
Version: 2016.0.7690 / Virus Database: 4627/12704 - Release Date: 07/29/16
_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Communi<mailto:Accountability-Cross-Community@icann.org%3cmailto:Accountability-Cross-Communi>
ty@icann.org<mailto:ty@icann.org>>
https://mm.icann.org/mailman/listinfo/accountability-cross-community
*******************************
David G. Post
Volokh Conspiracy Blog http://www.washingtonpost.com/people/david-post
Book (ISO Jefferson's Moose) http://tinyurl.com/c327w2n
Publications & Misc. http://www.ssrn.com/author=537
*******************************
________________________________
No virus found in this message.
Checked by AVG - www.avg.com<http://www.avg.com<http://www.avg.com%3chttp:/www.avg.com>>
Version: 2016.0.7690 / Virus Database: 4627/12704 - Release Date: 07/29/16
The ccTLDs have been adamantly opposed to ICANN having a copy of their databases. This was a major bone of contention in ICANN’s early days. When ICANN first started, Louis Touton was the IANA general manager — and several other roles as well — and he had made it a requirement for a ccTLD to send a copy of the zone before he would process change requests. In late 2002, when I was still fairly new as SSAC chair, Stuart Lynn asked me to mediate the dispute between IANA and the ccTLDs. It didn’t take long to realize that whatever positive value Louis had in mind was far outweighed by the concerns and resistance of the ccTLDs, and the practice was abandoned. Even so, the mistrust of ICANN that resulted from that practice still echoes today in some quarters. There is zero chance that ICANN would get involved in having copies of ccTLD databases much less attempting to run them. Further, the idea that a court-ordered transfer of control could be carried out in a way that leaves the registrants unharmed sounds nice but I don’t know how to implement it. It seems to me to be wishful thinking, tied to a theoretical construct but unrelated to reality. Steve
On Aug 4, 2016, at 3:02 PM, Mueller, Milton L <milton@gatech.edu> wrote:
I think the arrangements you describe would be sufficient to protect the third party interests of registrants under a TLD. More could also be done to ensure that in any such delegation, the new owner doesn’t impair the property and service interests of SLD registrants.
What I don’t understand is the court’s feeling that ICANN’s interest in the stability and interoperability of the DNS would be impaired by a legally mandated redelegation. I think that argument is just plain false. A redelegation does not create a compatibility issue. I don’t think the court understands what ICANN does and was overly swayed by hysterical USG amicus brief that claimed that the whole “model of internet governance” would be destroyed by a pro-plaintiff decision.
--MM
From: Diego R. Canabarro [mailto:diegocanabarro@nic.br <mailto:diegocanabarro@nic.br>] Sent: Thursday, August 4, 2016 2:30 PM To: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Cc: Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>>; Phil Corwin <psc@vlaw-dc.com <mailto:psc@vlaw-dc.com>>; David Post <david.g.post@gmail.com <mailto:david.g.post@gmail.com>> Subject: Re: [CCWG-ACCT] Weinstein v. Iran
Excellent post, Milton. Do you think the ruling would have been different in case ICANN had any sort of direct access to the database (e.g.: through a escrow service provider)? Put it differently: in case ICANN had access to a full replication of the ccTLD database and could keep things running smoothly, do you the ruling should be different?
Best Diego
-- Diego R. Canabarro Equipe de Assessoria do CGI.br <http://cgi.br/> / CGI.br <http://cgi.br/> Advisory Team <http://cgi.br/ <http://cgi.br/>> Núcleo de Informação e Coordenação do Ponto BR - NIC.br <http://nic.br/> <http://nic.br/ <http://nic.br/>> diegocanabarro@nic.br <mailto:diegocanabarro@nic.br> +55 11 5509 4116 | 5509 1855 PGP Key 007A14F5
Em qui 04 ago 2016, às 18:15:56, Mueller, Milton L escreveu:
As some of you know we've been doing some serious research on this topic and here is our take on the court decision: http://www.internetgovernance.org/2016/08/04/plaintiffs-cant-seize-ir-court <http://www.internetgovernance.org/2016/08/04/plaintiffs-cant-seize-ir-court> -rules/
From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Phil Corwin Sent: Wednesday, August 3, 2016 5:46 PM To: David Post <david.g.post@gmail.com <mailto:david.g.post@gmail.com>> Cc: 'CCWG-Accountability' <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Weinstein v. Iran
Paul:
Greg Shatan raised the same quibble in a comment posted at the website, and I replied as follows-
Greg: Thanks for the positive review of a hastily composed article. You are correct that the court expressed an assumption that a ccTLD constituted an attachable property interest, but did not decide that it was. While that assumption might be cited in a future case involving TLD matters it certainly has little to no weight. Further, courts might well decide that a nation's interest in its ccTLD, which is independent of any contractual relationship with ICANN, differentiates ccTLDs from gTLDs, which are dependent on being awarded such a contract by ICANN and can be lost if the registry operator commits a material breach of the registry agreement. Finally, whether or not ccTLDs or gTLDs constitute some type of property interest is a separate question from whether second level domains constitute a form of property. So yes, it was a very interesting outcome but in no way determinative on the TLD as property issue. Best, Philip
You are correct that the Court took no position one way or another on whether a TLD constitutes property, and leaves that issue for another case at a later date.
Very best, Philip
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From: David Post [mailto:david.g.post@gmail.com <mailto:david.g.post@gmail.com>] Sent: Wednesday, August 03, 2016 5:37 PM To: Phil Corwin Cc: Paul Rosenzweig; 'CCWG-Accountability' Subject: Re: [CCWG-ACCT] Weinstein v. Iran
At 09:37 AM 8/3/2016, Phil Corwin wrote: Content-Language: en-US Content-Type: multipart/alternative;
boundary="_000_8E84A14FB84B8141B0E4713BAFF5B84E21188D2AExchangesierrac_"
FYI, yesterday I published a short article on the decision which can be found at http://www.circleid.com/posts/20160802_court_of_appeals_avoids_doomsday_eff <http://www.circleid.com/posts/20160802_court_of_appeals_avoids_doomsday_eff> ect_in_iran_cctld_decision/
One small-ish quibble: you write:
"In reaching its decision, the Court opined (but did not decide) that a top level domain constitutes an attachable property interest."
Not sure that's strictly correct. I think "opined" implies that the court expressed an opinion about the matter (without actually deciding it). But I don't think it did express an opinion one way or the other; it simply said that it would "assume" that the ccTLDs constitute property, without really considering the matter, because it would have no impact on the outcome. I know it's a nit ... but the question of whether TLDs are "property" is sure to come up again, and I don't think this opinion is any support at all - even weak support - for the notion that they are. David
In it I state: 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 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 nation's ccTLD. This decision will also hopefully tamp down calls by some parties for ICANN's place of incorporation to be moved outside of the U.S. by demonstrating that ICANN's jurisdiction does not create a threat to other nation's ccTLDs. Remaining jurisdiction issues will be addressed in work stream 2 of ICANN's ongoing accountability process.
Best regards to all
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From: accountability-cross-community-bounces@icann.org<mailto:accountability-cros <mailto:accountability-cross-community-bounces@icann.org%3cmailto:accountability-cros> s-community-bounces@icann.org <mailto:s-community-bounces@icann.org>> [ mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Paul Rosenzweig Sent: Wednesday, August 03, 2016 9:28 AM To: 'CCWG-Accountability' Subject: [CCWG-ACCT] Weinstein v. Iran
For those following along in the effort to attach the .ir (and other) ccTLDs, the appellate court issued an opinion yesterday affirming the decision of the court below rejecting the effort to attach the domain (albeit on different grounds). Here is a link to the opinion: https://www.cadc.uscourts.gov/internet/opinions.nsf/D35ACE5F0E9673C08525800 <https://www.cadc.uscourts.gov/internet/opinions.nsf/D35ACE5F0E9673C08525800> 3005094AE/$file/14-7193.pdf
Paul
Paul Rosenzweig 509 C St. NE Washington, DC 20002 paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchcons <mailto:paul.rosenzweig@redbranchconsulting.com%3cmailto:paul.rosenzweig@redbranchcons> ulting.com <http://ulting.com/>> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/ <http://www.redbranchconsulting.com%3chttp/www.redbranchconsulting.com/>> www.paulrosenzweigesq.com<http://www.paulrosenzweigesq.com/ <http://www.paulrosenzweigesq.com%3chttp/www.paulrosenzweigesq.com/>> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ <http://redbranchconsulting.com/who-we-are/public-pgp-key/>
No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com <http://www.avg.com%3chttp/www.avg.com>> Version: 2016.0.7690 / Virus Database: 4627/12704 - Release Date: 07/29/16 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Communi <mailto:Accountability-Cross-Community@icann.org%3cmailto:Accountability-Cross-Communi> ty@icann.org <mailto:ty@icann.org>> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://mm.icann.org/mailman/listinfo/accountability-cross-community>
******************************* David G. Post Volokh Conspiracy Blog http://www.washingtonpost.com/people/david-post <http://www.washingtonpost.com/people/david-post> Book (ISO Jefferson's Moose) http://tinyurl.com/c327w2n <http://tinyurl.com/c327w2n> <http://tinyurl.com/c327w2n%A0%A0%A0%A0 <http://tinyurl.com/c327w2n%A0%A0%A0%A0>> Music https://soundcloud.com/davidpost-1/sets <https://soundcloud.com/davidpost-1/sets> Publications & Misc. http://www.ssrn.com/author=537 <http://www.ssrn.com/author=537> <http://www.ssrn.com/author=537%A0%A0 <http://www.ssrn.com/author=537%A0%A0>> http://www.davidpost.com<http://www.davidpost.com/ <http://www.davidpost.com%3chttp/www.davidpost.com/>> ******************************* ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com <http://www.avg.com%3chttp/www.avg.com>> Version: 2016.0.7690 / Virus Database: 4627/12704 - Release Date: 07/29/16
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://mm.icann.org/mailman/listinfo/accountability-cross-community>
Further, the idea that a court-ordered transfer of control could be carried out in a way that leaves the registrants unharmed sounds nice but I don’t know how to implement it. It seems to me to be wishful thinking, tied to a theoretical construct but unrelated to reality.
Steve
This has got to be true from a non-technical perspective as well. Even assuming you could adequately rebuild the cc registry for resolution purposes, you don’t have the details of the contracts between the parties. So you have no idea how long a particular registration will last, what the payment terms were, etc. I though the *Weinstein* case read like a pretty predictable hedge by an institutionally conservative court (i mean this in the non-political sense). kristian
On Aug 4, 2016, at 3:02 PM, Mueller, Milton L <milton@gatech.edu> wrote:
I think the arrangements you describe would be sufficient to protect the third party interests of registrants under a TLD. More could also be done to ensure that in any such delegation, the new owner doesn’t impair the property and service interests of SLD registrants.
What I don’t understand is the court’s feeling that ICANN’s interest in the stability and interoperability of the DNS would be impaired by a legally mandated redelegation. I think that argument is just plain false. A redelegation does not create a compatibility issue. I don’t think the court understands what ICANN does and was overly swayed by hysterical USG amicus brief that claimed that the whole “model of internet governance” would be destroyed by a pro-plaintiff decision.
--MM
*From:* Diego R. Canabarro [mailto:diegocanabarro@nic.br <diegocanabarro@nic.br>] *Sent:* Thursday, August 4, 2016 2:30 PM *To:* accountability-cross-community@icann.org *Cc:* Mueller, Milton L <milton@gatech.edu>; Phil Corwin <psc@vlaw-dc.com>; David Post <david.g.post@gmail.com> *Subject:* Re: [CCWG-ACCT] Weinstein v. Iran
Excellent post, Milton. Do you think the ruling would have been different in case ICANN had any sort of direct access to the database (e.g.: through a escrow service provider)? Put it differently: in case ICANN had access to a full replication of the ccTLD database and could keep things running smoothly, do you the ruling should be different?
Best Diego
-- *Diego R. Canabarro* Equipe de Assessoria do CGI.br <http://cgi.br/> / CGI.br <http://cgi.br/> Advisory Team <http://cgi.br/> Núcleo de Informação e Coordenação do Ponto BR - NIC.br <http://nic.br/> < http://nic.br/> diegocanabarro@nic.br +55 11 5509 4116 | 5509 1855 PGP Key 007A14F5
Em qui 04 ago 2016, às 18:15:56, Mueller, Milton L escreveu:
As some of you know we've been doing some serious research on this topic and here is our take on the court decision:
http://www.internetgovernance.org/2016/08/04/plaintiffs-cant-seize-ir-court
-rules/
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] On Behalf Of Phil Corwin Sent: Wednesday, August 3, 2016 5:46 PM To: David Post <david.g.post@gmail.com> Cc: 'CCWG-Accountability' <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Weinstein v. Iran
Paul:
Greg Shatan raised the same quibble in a comment posted at the website, and I replied as follows-
Greg: Thanks for the positive review of a hastily composed article. You are correct that the court expressed an assumption that a ccTLD constituted an attachable property interest, but did not decide that it was. While that assumption might be cited in a future case involving TLD matters it certainly has little to no weight. Further, courts might well decide that a nation's interest in its ccTLD, which is independent of any contractual relationship with ICANN, differentiates ccTLDs from gTLDs, which are dependent on being awarded such a contract by ICANN and can be lost if the registry operator commits a material breach of the registry agreement. Finally, whether or not ccTLDs or gTLDs constitute some type of property interest is a separate question from whether second level domains constitute a form of property. So yes, it was a very interesting outcome but in no way determinative on the TLD as property issue. Best, Philip
You are correct that the Court took no position one way or another on whether a TLD constitutes property, and leaves that issue for another case at a later date.
Very best, Philip
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From: David Post [mailto:david.g.post@gmail.com <david.g.post@gmail.com> ] Sent: Wednesday, August 03, 2016 5:37 PM To: Phil Corwin Cc: Paul Rosenzweig; 'CCWG-Accountability' Subject: Re: [CCWG-ACCT] Weinstein v. Iran
At 09:37 AM 8/3/2016, Phil Corwin wrote: Content-Language: en-US Content-Type: multipart/alternative;
boundary="_000_8E84A14FB84B8141B0E4713BAFF5B84E21188D2AExchangesierrac_"
FYI, yesterday I published a short article on the decision which can be found at
http://www.circleid.com/posts/20160802_court_of_appeals_avoids_doomsday_eff
ect_in_iran_cctld_decision/
One small-ish quibble: you write:
"In reaching its decision, the Court opined (but did not decide) that a top level domain constitutes an attachable property interest."
Not sure that's strictly correct. I think "opined" implies that the court expressed an opinion about the matter (without actually deciding it). But I don't think it did express an opinion one way or the other; it simply said that it would "assume" that the ccTLDs constitute property, without really considering the matter, because it would have no impact on the outcome. I know it's a nit ... but the question of whether TLDs are "property" is sure to come up again, and I don't think this opinion is any support at all - even weak support - for the notion that they are. David
In it I state: 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 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 nation's ccTLD. This decision will also hopefully tamp down calls by some parties for ICANN's place of incorporation to be moved outside of the U.S. by demonstrating that ICANN's jurisdiction does not create a threat to other nation's ccTLDs. Remaining jurisdiction issues will be addressed in work stream 2 of ICANN's ongoing accountability process.
Best regards to all
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From:
accountability-cross-community-bounces@icann.org<mailto:accountability-cros
s-community-bounces@icann.org> [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] On Behalf Of Paul Rosenzweig Sent: Wednesday, August 03, 2016 9:28 AM To: 'CCWG-Accountability' Subject: [CCWG-ACCT] Weinstein v. Iran
For those following along in the effort to attach the .ir (and other) ccTLDs, the appellate court issued an opinion yesterday affirming the decision of the court below rejecting the effort to attach the domain (albeit on different grounds). Here is a link to the opinion:
https://www.cadc.uscourts.gov/internet/opinions.nsf/D35ACE5F0E9673C08525800
3005094AE/$file/14-7193.pdf
Paul
Paul Rosenzweig 509 C St. NE Washington, DC 20002
paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchcons
ulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/ <http://www.redbranchconsulting.com%3chttp/www.redbranchconsulting.com/>> www.paulrosenzweigesq.com<http://www.paulrosenzweigesq.com/ <http://www.paulrosenzweigesq.com%3chttp/www.paulrosenzweigesq.com/>> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/
No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com <http://www.avg.com%3chttp/www.avg.com>> Version: 2016.0.7690 / Virus Database: 4627/12704 - Release Date: 07/29/16 _______________________________________________ Accountability-Cross-Community mailing list
Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Communi
ty@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
******************************* David G. Post Volokh Conspiracy Blog http://www.washingtonpost.com/people/david-post Book (ISO Jefferson's Moose) http://tinyurl.com/c327w2n <http://tinyurl.com/c327w2n%A0%A0%A0%A0> Music https://soundcloud.com/davidpost-1/sets Publications & Misc. http://www.ssrn.com/author=537 <http://www.ssrn.com/author=537%A0%A0> http://www.davidpost.com<http://www.davidpost.com/ <http://www.davidpost.com%3chttp/www.davidpost.com/>> ******************************* ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com <http://www.avg.com%3chttp/www.avg.com>> Version: 2016.0.7690 / Virus Database: 4627/12704 - Release Date: 07/29/16
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I have no real opinion on the case generally or the ccTLD/ICANN dispute. But I think this is mistaken – of course if a registrar subject to an order chooses to resist the order and/or destroy the registry he can do that. But subject to a lawful order, there is no reason to think that rebuilding the registry would be necessary – the court would simply order its transfer to the new registrar and an compliant loser would make the transfer. That having been said, I do agree with Kristian that it is likely to be messy with transition costs we can’t anticipate. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <http://redbranchconsulting.com/who-we-are/public-pgp-key/> http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kristian Stout Sent: Thursday, August 4, 2016 3:47 PM To: Steve Crocker <steve.crocker@board.icann.org>; Mueller, Milton L <milton@gatech.edu>; Diego R. Canabarro <diegocanabarro@nic.br>; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Weinstein v. Iran Further, the idea that a court-ordered transfer of control could be carried out in a way that leaves the registrants unharmed sounds nice but I don’t know how to implement it. It seems to me to be wishful thinking, tied to a theoretical construct but unrelated to reality. Steve This has got to be true from a non-technical perspective as well. Even assuming you could adequately rebuild the cc registry for resolution purposes, you don’t have the details of the contracts between the parties. So you have no idea how long a particular registration will last, what the payment terms were, etc. I though the Weinstein case read like a pretty predictable hedge by an institutionally conservative court (i mean this in the non-political sense). kristian On Aug 4, 2016, at 3:02 PM, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu> > wrote: I think the arrangements you describe would be sufficient to protect the third party interests of registrants under a TLD. More could also be done to ensure that in any such delegation, the new owner doesn’t impair the property and service interests of SLD registrants. What I don’t understand is the court’s feeling that ICANN’s interest in the stability and interoperability of the DNS would be impaired by a legally mandated redelegation. I think that argument is just plain false. A redelegation does not create a compatibility issue. I don’t think the court understands what ICANN does and was overly swayed by hysterical USG amicus brief that claimed that the whole “model of internet governance” would be destroyed by a pro-plaintiff decision. --MM From: Diego R. Canabarro [ <mailto:diegocanabarro@nic.br> mailto:diegocanabarro@nic.br] Sent: Thursday, August 4, 2016 2:30 PM To: <mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org Cc: Mueller, Milton L < <mailto:milton@gatech.edu> milton@gatech.edu>; Phil Corwin < <mailto:psc@vlaw-dc.com> psc@vlaw-dc.com>; David Post < <mailto:david.g.post@gmail.com> david.g.post@gmail.com> Subject: Re: [CCWG-ACCT] Weinstein v. Iran Excellent post, Milton. Do you think the ruling would have been different in case ICANN had any sort of direct access to the database (e.g.: through a escrow service provider)? Put it differently: in case ICANN had access to a full replication of the ccTLD database and could keep things running smoothly, do you the ruling should be different? Best Diego -- Diego R. Canabarro Equipe de Assessoria do <http://cgi.br/> CGI.br / <http://cgi.br/> CGI.br Advisory Team < <http://cgi.br/> http://cgi.br/> Núcleo de Informação e Coordenação do Ponto BR - <http://nic.br/> NIC.br < <http://nic.br/> http://nic.br/> <mailto:diegocanabarro@nic.br> diegocanabarro@nic.br +55 11 5509 4116 | 5509 1855 PGP Key 007A14F5 Em qui 04 ago 2016, às 18:15:56, Mueller, Milton L escreveu:
As some of you know we've been doing some serious research on this topic and
here is our take on the court decision:
<http://www.internetgovernance.org/2016/08/04/plaintiffs-cant-seize-ir-court> http://www.internetgovernance.org/2016/08/04/plaintiffs-cant-seize-ir-court
-rules/
From: <mailto:accountability-cross-community-bounces@icann.org> accountability-cross-community-bounces@icann.org
[ <mailto:accountability-cross-community-bounces@icann.org> mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Phil
Corwin Sent: Wednesday, August 3, 2016 5:46 PM
To: David Post < <mailto:david.g.post@gmail.com> david.g.post@gmail.com>
Cc: 'CCWG-Accountability' < <mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org>
Subject: Re: [CCWG-ACCT] Weinstein v. Iran
Paul:
Greg Shatan raised the same quibble in a comment posted at the website, and
I replied as follows-
Greg:
Thanks for the positive review of a hastily composed article. You are
correct that the court expressed an assumption that a ccTLD constituted an
attachable property interest, but did not decide that it was. While that
assumption might be cited in a future case involving TLD matters it
certainly has little to no weight. Further, courts might well decide that a
nation's interest in its ccTLD, which is independent of any contractual
relationship with ICANN, differentiates ccTLDs from gTLDs, which are
dependent on being awarded such a contract by ICANN and can be lost if the
registry operator commits a material breach of the registry agreement.
Finally, whether or not ccTLDs or gTLDs constitute some type of property
interest is a separate question from whether second level domains
constitute a form of property. So yes, it was a very interesting outcome
but in no way determinative on the TLD as property issue. Best, Philip
You are correct that the Court took no position one way or another on
whether a TLD constitutes property, and leaves that issue for another case
at a later date.
Very best, Philip
Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From: David Post [ <mailto:david.g.post@gmail.com> mailto:david.g.post@gmail.com]
Sent: Wednesday, August 03, 2016 5:37 PM
To: Phil Corwin
Cc: Paul Rosenzweig; 'CCWG-Accountability'
Subject: Re: [CCWG-ACCT] Weinstein v. Iran
At 09:37 AM 8/3/2016, Phil Corwin wrote:
Content-Language: en-US
Content-Type: multipart/alternative;
boundary="_000_8E84A14FB84B8141B0E4713BAFF5B84E21188D2AExchangesierrac_"
FYI, yesterday I published a short article on the decision which can be
found at
<http://www.circleid.com/posts/20160802_court_of_appeals_avoids_doomsday_eff> http://www.circleid.com/posts/20160802_court_of_appeals_avoids_doomsday_eff
ect_in_iran_cctld_decision/
One small-ish quibble: you write:
"In reaching its decision, the Court opined (but did not decide) that a top
level domain constitutes an attachable property interest."
Not sure that's strictly correct. I think "opined" implies that the court
expressed an opinion about the matter (without actually deciding it). But
I don't think it did express an opinion one way or the other; it simply
said that it would "assume" that the ccTLDs constitute property, without
really considering the matter, because it would have no impact on the
outcome. I know it's a nit ... but the question of whether TLDs are
"property" is sure to come up again, and I don't think this opinion is any
support at all - even weak support - for the notion that they are. David
In it I state:
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 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 nation's ccTLD. This
decision will also hopefully tamp down calls by some parties for ICANN's
place of incorporation to be moved outside of the U.S. by demonstrating
that ICANN's jurisdiction does not create a threat to other nation's
ccTLDs. Remaining jurisdiction issues will be addressed in work stream 2 of
ICANN's ongoing accountability process.
Best regards to all
Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From:
<mailto:accountability-cross-community-bounces@icann.org%3cmailto:accountability-cros> accountability-cross-community-bounces@icann.org<mailto:accountability-cros
<mailto:s-community-bounces@icann.org> s-community-bounces@icann.org> [
<mailto:accountability-cross-community-bounces@icann.org> mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Paul
Rosenzweig Sent: Wednesday, August 03, 2016 9:28 AM
To: 'CCWG-Accountability'
Subject: [CCWG-ACCT] Weinstein v. Iran
For those following along in the effort to attach the .ir (and other)
ccTLDs, the appellate court issued an opinion yesterday affirming the
decision of the court below rejecting the effort to attach the domain
(albeit on different grounds). Here is a link to the opinion:
<https://www.cadc.uscourts.gov/internet/opinions.nsf/D35ACE5F0E9673C08525800> https://www.cadc.uscourts.gov/internet/opinions.nsf/D35ACE5F0E9673C08525800
3005094AE/$file/14-7193.pdf
Paul
Paul Rosenzweig
509 C St. NE
Washington, DC 20002
<mailto:paul.rosenzweig@redbranchconsulting.com%3cmailto:paul.rosenzweig@redbranchcons> paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchcons
<http://ulting.com/> ulting.com> O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
<http://www.redbranchconsulting.com%3chttp/www.redbranchconsulting.com/> www.redbranchconsulting.com<http://www.redbranchconsulting.com/>
<http://www.paulrosenzweigesq.com%3chttp/www.paulrosenzweigesq.com/> www.paulrosenzweigesq.com<http://www.paulrosenzweigesq.com/>
My PGP Key: <http://redbranchconsulting.com/who-we-are/public-pgp-key/> http://redbranchconsulting.com/who-we-are/public-pgp-key/
No virus found in this message.
Checked by AVG - <http://www.avg.com%3chttp/www.avg.com> www.avg.com<http://www.avg.com>
Version: 2016.0.7690 / Virus Database: 4627/12704 - Release Date: 07/29/16
_______________________________________________
Accountability-Cross-Community mailing list
<mailto:Accountability-Cross-Community@icann.org%3cmailto:Accountability-Cross-Communi> Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Communi
<mailto:ty@icann.org> ty@icann.org>
<https://mm.icann.org/mailman/listinfo/accountability-cross-community> https://mm.icann.org/mailman/listinfo/accountability-cross-community
*******************************
David G. Post
Volokh Conspiracy Blog <http://www.washingtonpost.com/people/david-post> http://www.washingtonpost.com/people/david-post
Book (ISO Jefferson's Moose) <http://tinyurl.com/c327w2n> http://tinyurl.com/c327w2n
< <http://tinyurl.com/c327w2n%A0%A0%A0%A0> http://tinyurl.com/c327w2n%A0%A0%A0%A0> Music
<https://soundcloud.com/davidpost-1/sets> https://soundcloud.com/davidpost-1/sets
Publications & Misc. <http://www.ssrn.com/author=537> http://www.ssrn.com/author=537
< <http://www.ssrn.com/author=537%A0%A0> http://www.ssrn.com/author=537%A0%A0>
<http://www.davidpost.com%3chttp/www.davidpost.com/> http://www.davidpost.com<http://www.davidpost.com/>
*******************************
________________________________
No virus found in this message.
Checked by AVG - <http://www.avg.com%3chttp/www.avg.com> www.avg.com<http://www.avg.com>
Version: 2016.0.7690 / Virus Database: 4627/12704 - Release Date: 07/29/16
_______________________________________________ Accountability-Cross-Community mailing list <mailto:Accountability-Cross-Community@icann.org> Accountability-Cross-Community@icann.org <https://mm.icann.org/mailman/listinfo/accountability-cross-community> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Steve: Further, the idea that a court-ordered transfer of control could be carried out in a way that leaves the registrants unharmed sounds nice but I don’t know how to implement it. It seems to me to be wishful thinking, tied to a theoretical construct but unrelated to reality. Let me acquaint you with some business and legal reality then. Why are the plaintiffs attempting to seize the domain? Because they are owed $300 million + in damages. How do they propose to recover those damages? By garnishing an asset which has economic value. Why is the .IR domain valuable? Because people pay money to rent subdomains under it. What is the best way to benefit from that economic value? Obviously, by retaining all the existing customers and collecting their payments as before, and by growing the number of renters. So the winner of such a case has every incentive to avoid harming registrants. And a court could extract commitments to do that from the winner of such a case. Now, I agree with you that that sequence of events is highly unlikely _in this case_ for a variety of reasons – the fact that Iran is unlikely to cooperate with Israeli-American terrorism victims, or with ICANN; the fact that ICANN or any other cooperative third party does not possess the data required to maintain the lower-level zones, etc. But there might be another way. The value might also be captured not by the new owners running the domain, but by inducing Iran’s government to pay the terrorism victims a certain amount in order for the plaintiffs to relinquish their court-ordered right to the domain. All fine and good if Iran agrees to the bargain, but if it does not the decision could indeed be holding the local registrants hostage to a blackout of their internet access. I guess one’s evaluation of this depends on one’s assessment of the equities of paying penalties for state-sponsored terrorism vs. that of the internet identities of many innocent Iranian internet users. In this respect I think the court made the right decision. The .IR case is more fraught than most because of the international politics involved. If one thinks of more normal cases – say the delegee of .uk proves to be a criminal enterprise and the court (under UK law) orders a redelegation under controlled circumstances, it seems perfectly feasible for a court-ordered property transfer to take place without harming the registrants. In fact, I am sure that court-ordered property transfers of real estate or other enterprises where customers are involved take place all the time. NB: I am not arguing for the plaintiffs in this case, I am merely pointing out that your idea that it is _impossible_ for a court-ordered property transfer to result in anything but harm to the tenants is a somewhat dogmatic claim. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology
participants (4)
-
Kristian Stout -
Mueller, Milton L -
Paul Rosenzweig -
Steve Crocker