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Recordings, DAIRs, Raw Caption Notes for Jurisdiction Subgroup Meeting #44 | 30 August 2017
by MSSI Secretariat Sept. 1, 2017

Sept. 1, 2017

Hello all, You may find the recordings, Decisions, Action Items, Requests (DAIRs), and raw caption notes for CCWG Accountability WS2 Jurisdiction Subgroup Meeting #44 – 30 August 2017 posted at https://community.icann.org/x/TwIhB A copy of the DAIRs and raw caption notes may be found below. Thank you. With kind regards, Brenda Brewer, Projects & Operations Assistant Multistakeholder Strategy & Strategic Initiatives (MSSI) Internet Corporation for Assigned Names and Numbers (ICANN) [cid:image001.png@01D32339.85FA0760] Action Items: * GS to create a google doc for major issues and distribute link to list. * GS to create a google doc for the OFAC recommendation and distribute the link to the list. Raw Captioning Notes Disclaimer: This rough edit transcript, which may contain missing, misspelled or paraphrased words, is only provided for your immediate review and is not certified as verbatim and is not to be cited in any way. * Word Doc<https://community.icann.org/download/attachments/69272143/CCWG-Accountabili…> * PDF<https://community.icann.org/download/attachments/69272143/CCWG-Accountabili…> Decisions: * Begin next call with a discussion of choice of law issue in registrar and registry agreements Requests: * Participants review the major issues google doc to ensure all issues are presented in some fashion (the objective was to regroup issues and not to list issues presented by individuals) * Participants review the draft OFAC recommendation google doc. Documents Presented * Proposed Issues Submitted by Subgroup Participants<https://community.icann.org/download/attachments/69272143/Proposed%20Issues…> * OFAC Recommendation First Draft<https://community.icann.org/download/attachments/69272143/OFAC%20Recommenda…>

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Issue: Domain seizures by US executive agencies like US customs
by parminder Aug. 31, 2017

Aug. 31, 2017

Issue: US customs have routinely seized domain names belonging to foreign entities, whose owners in their view violate US law. This has mainly been done for alleged violation of intellectual property law, but could have been done for other laws as well, and certainly can be so done in the future. Till now all cases were such as having second level domain names with US based registries, most often Verisign, which runs the .com registry. Therefore US Custom have forced the agency that could help them seize domain names, ie the concerned US based registry". It is obvious that if the "violating" foriegn entity were to own a gTLD -- which is increasingly likely with the great onrush on gTLDs -- US Custom will force ICANN as the "registry" of gTLDs in the same way they earlier acted on US based registries. In the eyes od a US executive agency, there is no legal difference in this regard, for enforcement assistance purpose, between a US based business and a US based non profit like ICANN. Further, it is not just the actual seizure that is the problem. Law exist much more in observance than defiance, and thus visible punishment ensuing from it. Global companies that take on gTLDs, as many are expected to, will experience the "chilling effect <https://en.wikipedia.org/wiki/Chilling_effect>", whereby they already begin to subject their actions to US laws fearing US enforcement powers exercised thorugh the gTLD route. Thereby the global DNS becomes an illegitimate and undemocratic way of extending US law globally. Solution: I do not think any specific exceptions to any organisation or class of actions is even theoritically available under the laws under which US custom makes these seizures. In the circumstances, the only solution is a general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law.

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Issue: US's courts' judicial writ over all aspects of ICANN
by parminder Aug. 30, 2017

Aug. 30, 2017

Issue As a US based entity, ICANN is subject to full range of US laws. Almost any US court can take up for its judicial consideration whether ICANN works within each of such applicable law or not. This brings up a high likelihood that any time in the future ICANN will have to change under US courts' directions its actions taken in pursuance of its global governance function of developing global DNS related policies and implementing them. This is obviously undemocratic and inappropriate that one country's law and its court decide what a global governance body like ICANN will or will not do. Further, it is not only a matter of a court actually finding legal fault with an ICANN action and forcing to change it. Knowing that ICANN is subject to the full range of US public law, ICANN would always take care to keep its actions with them (as it has no doubt done till now). This is what is called as the "chilling effect <https://en.wikipedia.org/wiki/Chilling_effect>". This phenomenon which is already in existence with ICANN's actions, since its inception, is undemocratic and illegitimate from the point of view of the non US people, since they did not participate in making the US laws, and the laws they may have actually developed may even be in contradiction to US law on a particular subject. This phenomenon therefore leads to denial of democratic rights to non US citizens. Solution: Any given court would not heed to any pleadings about ICANN being special as a global governance organisation, and should be treated as such. Neither is the court legally supposed to do, under the US constitution and laws. The only solution there is a general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law.

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Additional Document for upcoming meeting
by Greg Shatan Aug. 30, 2017

Aug. 30, 2017

All, As mentioned on the Plenary Call, the attached first draft recommendation regarding OFAC, assembled from the input of various participants, will be reviewed on the Subgroup call. The Agenda will be amended accordingly. I look forward to comments from the Subgroup. Greg

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Issue: US legislature's unlimited power over ICANN
by parminder Aug. 28, 2017

Aug. 28, 2017

Issue: US legislature has near unlimited power over any US based organisation, especially when it can see as carrying out an important public function. It is entirely possible in the future for US legislature to make new laws which specifically target ICANN and its functions, or may generally target them under a class of organisations or functions. This can completely throw out of gear ICANN's global governance function and its primary accountability to the global community. Solution: Evidently, there can be no other solution for this issue than to grant ICANN one time general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law.

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[Common denominator] ISSUE: Jurisdiction over ccTLDs
by Thiago Braz Jardim Oliveira Aug. 28, 2017

Aug. 28, 2017

Dear Nigel, Dear All, Thank you very much for your reply. I appreciate that you actually understand and acknowledge the unsatisfactory situation that ICANN's subjection to US enforcement jurisdiction put us in. In terms of US jurisdiction over ccTLDs, others and you and I seem to agree that US organs can possibly interfere with ICANN's ccTLD management, regardless of whether that has already happened, and that this puts in peril ICANN's accountability towards all stakeholders, in their respective roles, on an equal footing. I acknowledge your concern that we should be careful not to leave ICANN free from liability as we recommend that ICANN obtain immunity from US jurisdiction in respect of ICANN's ccTLD management. To ensure that this does not happen, I believe we all concur that ICANN's own accountability mechanisms should be in place and functioning and satisfy the expectations of all stakeholders. In view of the above, and also based on the most valid point made by Bernard Turcotte in our online meeting of yesterday (#43), which I detail below, I am confident we can agree on some mutually acceptable language addressing the issue we've been discussing in this email thread. In our online meeting of yesterday (#43), Bernard appropriately noted, with general support from the participants, that in making our recommendation, "we should be looking at what are the outcomes we're looking for and less trying to be very specific about how to implement it." For practically mandatory reasons, and I invite you to read Bernard's brilliantly reasoned explanation in the transcript, as we recommend that ICANN reach such objectives as of obtaining immunity, "it's fine to ask ICANN to study this and come back with some concrete facts and estimates and then the community can decide that”. Accordingly, despite the disagreements that there might be, to use Nigel's words, on "how to design immunity in a way that does not immunise ICANN from liability for arbitrary or unlawful actions" in respect of ICANN's ccTLD management, we have already reached the point where we can recommend ICANN to (i) seek immunity from US jurisdiction in respect of ICANN's ccTLD activities, so that ICANN could neither be made defendant in domestic court proceedings that aim, for example, to force ICANN to re-delegate a ccTLD, nor be subject of enforcement measures by domestic agencies that interferes with ICANN's ccTLD management; and (ii) maintain and further develop its own accountability mechanisms, through the appropriate bottom-up multi-stakeholder policy development process, to ensure that ICANN can be held liable for its ccTLD management activities. The above proposal is practical and should reflect the constructive input we have received so far on the issue, to an extent agreeable to the different stakeholders. The approach that has led us to it, and I thank Bernard Turcotte for proving its necessity, should also lead us to positive results with respect to the other issues. [For the transcript of meeting #43 where Bernard's point was made, see: https://community.icann.org/download/attachments/69272141/CCWG-WS2%20JURISD… ; for useful exchanges within this email thread, please see: http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001469.html ; and http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001471.html ; and http://mm.icann.org/pipermail/ws2-jurisdiction/2017-August/001441.html ] I look forward to your reaction to the above, which I trust will be positive. Best regards, Thiago ________________________________________ De: Nigel Roberts [nigel(a)channelisles.net] Enviado: quarta-feira, 23 de agosto de 2017 12:44 Para: Thiago Braz Jardim Oliveira; farzaneh badii Cc: ws2-jurisdiction Assunto: Re: RES: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs Thiago Framing this teleologically as you have done below, goes a long way to advancing your argument while mitigating the knee-jerk reaction that I and others, invariably have to any suggestion that ICANN staff and board might receive immunity for their actions. It's a reasonable argument to put forward. It would not, in fact, have been necessary had ICANN been incorporated in Switzerland or some other aggressively neutral place, as I argued for long ao. But it is where it is. The concern that US organs can possibly interfere with ICANN's ccTLD management is reasonable. But so is the concern that ICANN itself can interfere in the management of ccTLDs. The former, whilst a valid concern has not happened. The latter has. How do you design immunity in a way that does not immunise ICANN from liability for arbitrary or unlawful actions? On 23/08/17 15:39, Thiago Braz Jardim Oliveira wrote: > Dear Farzaneh, > Dear All, > > Thank you very much for your reply. I will try to clarify the proposal I > submitted a bit further, which may help us better frame the discussion > from my point of view. > > The proposal, as I see it, is not to obtain 'property' immunity for > ccTLDs, or immunity from seizure or attachment. As you rightly > suggested, if we were getting into that, we would perhaps also get into > discussions about the status of ccTLDs, whether they are an expression > of 'sovereign' rights or not, etc. But we don't need to. > > Instead, the proposal is that ICANN (not the ccTLD manager) obtains > jurisdictional immunity in respect of ICANN's activities relating to the > management of ccTLDs. The effect is that ICANN could not be made > defendant in domestic court proceedings that aim, for example, to force > ICANN to re-delegate a ccTLD. This is on the understanding that no > single country is entitled to exercise jurisdiction over ICANN in ways > that interfere with ICANN's management of other countries' ccTLDs. I > hope I have provided the rationale for this understanding in the e-mail > where I described the issue and proposed solutions. > > As to the apparent controversy about whether ccTLDs are property, again, > strictly we may not need to get into that. My point relating to 'in rem > jurisdiction' was therefore perhaps unnecessary, but the idea was to > point to an existing practice in the US where domestic courts (and > enforcement agencies) have found to have authority to interfere with > domain names (and arguably ccTLDs) based on the 'location' of the > 'domain name authority', as is ICANN, in the US. (I had previously > touched on these points > here: http://mm.icann.org/pipermail/ws2-jurisdiction/2017-May/001003.html) > > Perhaps this was unnecessary. The main point is instead this: currently, > it has been open to the organs of the single country with exclusive > authority to enforce jurisdiction in respect of ICANN's ccTLD management > activities (US exclusive territorial jurisdiction) the possibility of > deciding that they will, or that they will not, interfere with such > ICANN's activities. And regardless of the reason they invoke to legally > justify their interference, however justifiable it may be from a > domestic law point of view (because, say, ccTLDs are property or they > have 'in rem jurisdiction'), the point is that it should not up to the > organs of any country to chose and decide on the reasons to interfere, > and then interfere, with ICANN's management of other countries' ccTLDs. > > It is because US organs can possibly interfere with ICANN's ccTLD > management, as an expression of US exclusive enforcement jurisdiction > over things or activities performed in US territory, that it is > necessary to recommend that ICANN obtains immunity in respect of its > ccTLD management activities. Any measure that clearly rules out that > possibility, in turn, for it to meet ICANN's accountability goals > towards all stakeholders, should not be left to unilateral decisions of > the organs of one State, or to the vagaries of US jurisprudence, however > uniform and constant it might be. > > Best regards, > > Thiago > > > > ------------------------------------------------------------------------ > *De:* ws2-jurisdiction-bounces(a)icann.org > [ws2-jurisdiction-bounces(a)icann.org] em nome de farzaneh badii > [farzaneh.badii(a)gmail.com] > *Enviado:* quarta-feira, 23 de agosto de 2017 9:07 > *Para:* Nigel Roberts > *Cc:* ws2-jurisdiction > *Assunto:* Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs > > In the .IR case, the court did not decide on whether ccTLD is a property > or not. Anyhow, I do not think we should go into that discussion. I > think the important thing to find out is whether the court case in .IR > is precedential. > > I don't think the second part of your solution would work Thiago, if > jurisdictional immunity is not granted to ccTLDs ( I don't know how we > can get such jurisdictional immunity and don't forget that some ccTLD > managers are totally private and not government run). > > The below might not be enforceable: > > "ICANN Bylaws an exclusive choice of forum provision, whereby disputes > relating to the management of any given ccTLD by ICANN shall be settled > exclusively in the courts of the country to which the ccTLD in question > refer." > > First of all not many ccTLDs have contracts with ICANN. Secondly, in > third party claims or disputes, for example in case of initiating > attachment of a ccTLD as an enforcement of a monetary compensation, this > clause might be challenged and might very well be ineffective. > > > > Farzaneh > > On Wed, Aug 23, 2017 at 7:05 AM, Nigel Roberts <nigel(a)channelisles.net > <mailto:nigel@channelisles.net>> wrote: > > You can make such assertions all you like, but it doesn't make it > necessarily so. > > The best I can offer by way of certainty in the matter is "we don't > really know, but we can take some guesses". > > The difference between the DNS and spectrum is that spectrum exists > per se. The DNS only exists becuase it was designed and constructed. > > I could start a different DNS tomorrow. It would not get wide use, > but it would not differ in any way from the existing DNS. > > Furthermore possible new technologies can outdate the current DNS > (I'm thinking of blockchain) just like SMTP outdated and made X.400 > useless. > > > > > On 23/08/17 11:52, Arasteh wrote: > > Dear All > ccTLD at any level shall not be considered as property or > attachment at all. > gTLD including ccTLD are resources like orbital /spectrum which > are not at possession of any entity but could be used under > certains rules and procedure established for such use > Any action by any court to consider it as attachment is illegal > and illegitimate as DNS shall not be used as a political vector > or means against any people covered under that DNS. > Being located in a particular country does I no way grant / > provide any legal or administrative or judicial right to that > country . DNS is a universal resources belong to the public for > use under certains rules and procedure and shall in no way be > used asa vehicle for political purposes. > We need to address this issue very closely and separate > political motivation from technical use. > Regards > Kavouss > Sent from my iPhone > > On 23 Aug 2017, at 08:52, <Jorge.Cancio(a)bakom.admin.ch > <mailto:Jorge.Cancio@bakom.admin.ch>> > <Jorge.Cancio(a)bakom.admin.ch > <mailto:Jorge.Cancio@bakom.admin.ch>> wrote: > > Dear all, > > please excuse my ignorance, but have domain names not be > seized as "assets" or "property" in the US under the > application of domestic law? > > Wikipedia info is here: > https://en.wikipedia.org/wiki/Operation_In_Our_Sites > <https://en.wikipedia.org/wiki/Operation_In_Our_Sites> > > If a second level domain is subject to potential seizure, > why not a TLD? > > Regards > > Jorge > > -----Ursprüngliche Nachricht----- > Von: ws2-jurisdiction-bounces(a)icann.org > <mailto:ws2-jurisdiction-bounces@icann.org> > [mailto:ws2-jurisdiction-bounces@icann.org > <mailto:ws2-jurisdiction-bounces@icann.org>] Im Auftrag von > Nigel Roberts > Gesendet: Mittwoch, 23. August 2017 08:44 > An: ws2-jurisdiction(a)icann.org > <mailto:ws2-jurisdiction@icann.org> > Betreff: Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction > over ccTLDs > > Milto > > There is no authority at all for this Claim, in law, as I > suspect you know. > > As I suspect you also know very well, the nearest evidence > that might support such a Claim is that one of the > contentions in /Weinstein/ was that a ccTLD (three of them, > if I remember correctly) could be garnished under the "state > law" of DC. (I know technically, DC is not a state of the > Union, but I don't know the US correct term-of-art for > 'state or capital region') > > Unfortunately or fortunately (depending on one's point of > view) it was not necessary for the Court to decide on this > claim by the Judgment Debtor. This means that the idea that > US courts might either have either or both of :- > > (a) legal jurisdiction over the ownership of the rights > represented by a ccTLD delegation > > (b) the desire to exercise such (lack of desire to address a > particular contention usually leads judges in common-law > systems to be able conveniently to find a creative ratio > that finds other reasons that the case can be decided > > remains a completely open question. > > It seems to me that additional hints for future litigants > (as you know, common-law judges do that too) appear to have > been given in the Weinstein judgment as to whether the > rights in law enjoyed by a ccTLD manager (whatever they > might be) MIGHT constitute property or not, but this remarks > don't even amount to /obiter dictum/ - they are just hints > at a possible road of future judicial travel and any court > seised of a future Claim is entirely free to ignore them. > > And, even so, those hints don't address the question of /in > rem/ at all. > > > As you can see, I (along with some others in the ccTLD > community) havefollowed, and analysed this case carefully > and in some detail. > > We are aware of no other possible legal authority that > addresses whether ccTLDs are property (let alone whether > that property, if it is property, is subject to /in rem/ > jurisidiction). > > Unless others have additional information? > > > > > Nigel Roberts > > PS: I would also commend others to read Farzaneh and > Milton's ccTLD paper. > > > On 22/08/17 22:31, Mueller, Milton L wrote: > > > > > Issue 3: In rem Jurisdiction over ccTLDs > > > > Description: US courts have in rem jurisdiction over > domain names as a > result of ICANN's place of incorporation > > > > What is the evidence for this claim? > > --MM > > > > _______________________________________________ > Ws2-jurisdiction mailing list > Ws2-jurisdiction(a)icann.org > <mailto:Ws2-jurisdiction@icann.org> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction > <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> > > _______________________________________________ > Ws2-jurisdiction mailing list > Ws2-jurisdiction(a)icann.org <mailto:Ws2-jurisdiction@icann.org> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction > <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> > _______________________________________________ > Ws2-jurisdiction mailing list > Ws2-jurisdiction(a)icann.org <mailto:Ws2-jurisdiction@icann.org> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction > <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> > > > _______________________________________________ > Ws2-jurisdiction mailing list > Ws2-jurisdiction(a)icann.org <mailto:Ws2-jurisdiction@icann.org> > https://mm.icann.org/mailman/listinfo/ws2-jurisdiction > <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction> > >

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Issue: US executive and regulatory powers over ICANN
by parminder Aug. 28, 2017

Aug. 28, 2017

Issue: Within the wide "class of functions" etc related powers to various US executive and regulatory agencies, they can weigh upon ICANN, as a US based organisation fully subject to US jurisdiction", to act or not act in a particular way, which it takes to be in furtherance of the public interest that they have been mandated to uphold. The regulatory agency which directly relates to ICANN's core functions is the Federal Communications Commission or FCC which has within its express mandate to manage the numbering issue in the telcom sector. As per current interpretation of law, Internet in the US is considered as a telecom service, and therefore names and numbering for the Internet comes under FCC's remit. Currently, FCC has "forborne" its remit on Internet's names and numbering system. The very meaning of such forbearance is to accept its possible jurisdiction but not exercise it at a particular point or under particular circumstances. FCC has earlier forborne its title 2 regulatory powers over the Internet but chose to assert them last year with their "net neutrality" ruling. A similar thing can be done with respect to Internet's names and numbering system, if ICANN thinks that it needs to act to uphold US public interest. No such powers of interventions are available to corresponding regulators of other countries. Such unilateral jurisdiction of FCC over ICANN therefore is illegitimate and undemocratic from a global point of view. FCC is the US regulatory agency most directly concerned with ICANN functions. However, the work of ICANN connects to almost all sectors, many of which have dedicated regulatory agencies in the US. FDA for instance may want to force its will on exclusion-inclusion or other principles that .pharma or .health may lay. So may the transport regulator with .cars, and .auto, or whatever. There is no end to such possibilities. Regulatory is one class of more specialised executive action, but many other executive agencies, right down from the office of the President of the USA itself, have various kinds of powers over all US organisations, including the ICANN. This is problematic in the same way as other executive/ regulatory powers that we have discussed. Solution: It is not possible to make a list of all executive/ regulatory powers that impinge upon ICANN. That is the very nature of state organisation and power. In the circumstances, the only solution to this problem is a general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law.

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REMINDER: DEADLINE FOR SUBMISSION OF POTENTIAL ISSUES IS 23:59 UTC TODAY (27 AUGUST 2017)
by Greg Shatan Aug. 27, 2017

Aug. 27, 2017

---------- Forwarded message ---------- From: Greg Shatan <gregshatanipc(a)gmail.com> Date: Wed, Aug 23, 2017 at 12:15 PM Subject: Agenda and Documents for Today's Call To: ws2-jurisdiction <ws2-jurisdiction(a)icann.org> Cc: "acct-staff(a)icann.org" <acct-staff(a)icann.org>, Bernard Turcotte < turcotte.bernard(a)gmail.com>, Brenda Brewer <brenda.brewer(a)icann.org> All, The agenda and documents for today's call are attached. Please note that the 24 hours Bernie and I allowed ourselves to collate all submissions into a single document proved to be insufficient, due to the timing, volume and nature of the submissions. We will continue to work on this over the next few days. I've indicated in the past that there would be no absolute deadline for submission of proposed issues until it was absolutely clear that a deadline was being set. For this reason, and since the combined document is still in progress, the Subgroup's participants can continue to send submissions until *23:59 UTC on Sunday, August 27. This will be the final deadline for submission of issues. **It would be helpful if any further potential issues and recommendations submitted hew closely to the request for succinctness. Thank you.* I look forward to today's call. Greg

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Re: [Ws2-jurisdiction] [EXTERNAL] Re: ISSUE: In rem Jurisdiction over ccTLDs
by Jorge.Cancio＠bakom.admin.ch Aug. 24, 2017

Aug. 24, 2017

Dear Phil, could you please clarify whether the legal basis/fundament discussed in the ".ir" case is the same as the one contained in 18 U.S.C. § 981(b)(2), which provides a legal framework for property seizures by the government? thanks in advance Jorge ________________________________ Von: Phil Corwin <psc(a)vlaw-dc.com> Datum: 24. August 2017 um 19:55:36 MESZ An: parminder <parminder(a)itforchange.net>, ws2-jurisdiction(a)icann.org <ws2-jurisdiction(a)icann.org> Betreff: Re: [Ws2-jurisdiction] [EXTERNAL] Re: ISSUE: In rem Jurisdiction over ccTLDs With the .IR decision in the DC Circuit as precedent, the probability of a US court seeking to order ICANN to take adverse action against a ccTLD at the top level approaches zero. Further, and this is a personal view, other than perhaps .KP, if a US court was ever going to take adverse action against a ccTLD it would have been against .IR yet it chose not to do so – in large part because, as Milton pointed out, “the court decided that court-ordered seizure of the ccTLD would impair the interest of ICANN in a globally acceptable delegation process and possible also impair the interest of its registrants”. Indeed, one could say that ICANN’s US domicile and historic (pre-transition) relationship with the US government benefitted the .IR ccTLD. As for second level ccTLD domains, under the ACPA there can be no effective exercise and enforcement of its In Rem proceedings unless the ccTLD’s operation is conducted by a US-based registry operator or the domain registrant has chosen to utilize a US-based registrar. So there is no issue for ccTLDs operated by or within their associated nation where the domains are registered via a non-US party. While nothing is ever impossible, IMHO this WG should not expend continued time and resources addressing highly improbable scenarios when it is flirting with being declared a failed policy exercise if it does not up its game and meet certain benchmark requirements by ICANN 60, which is only two months away. 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: ws2-jurisdiction-bounces(a)icann.org [mailto:ws2-jurisdiction-bounces@icann.org]On Behalf Of parminder Sent: Thursday, August 24, 2017 12:16 PM To: ws2-jurisdiction(a)icann.org Subject: Re: [Ws2-jurisdiction] [EXTERNAL] Re: ISSUE: In rem Jurisdiction over ccTLDs On Thursday 24 August 2017 08:14 PM, Phil Corwin wrote: As I just pointed out in a prior email, the exercise of In Rem jurisdiction still requires some party related to the domain (registry or registrar) to be subject to US jurisdiction. So unless a nation has its ccTLD operated by a US-based entity, and unless a ccTLD registrant has opted to use a US-based registrar, this is a non-issue for ccTLDs. That US based party is ICANN, the owner of the DNS root. This fact enables In Rem jurisdiction. Also, as I pointed out, this In Rem jurisdiction is completely independent of ICANN’s incorporation and even its existence. I am sorry if I sound flippant, but seriously, this sentence to me appears to be in contradiction to what you say above. For, it is because DNS root owner, ICANN is in the US, and not immune from its jurisdiction, In Rem jurisdiction comes into picture, which you rightly say "still requires some party related to the domain to be subject to US jurisdiction", if only for enforcement of any judicial writ. parminder 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:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org]On Behalf Of Mueller, Milton L Sent: Thursday, August 24, 2017 10:39 AM To: ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] [EXTERNAL] Re: ISSUE: In rem Jurisdiction over ccTLDs Yes, Becky this is correct, ACPA is an anti-cybersquatting law for trademark protection and was written with second-level domains in mind. I guess it is possible that a gTLD would be subject to ACPA – but if and only if someone managed to cybersquat a trademark in the TLD level. And since ICANN’s TLD awarding process is so heavily biased toward trademark owners, it is unlikely that a TM-violating TLD (say, giving .IBM to Parminder) would ever happen. But if it did, I supposed it could be applied. I can’t see how it could ever be applied to a ccTLD. From:ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org]On Behalf Of Burr, Becky via Ws2-jurisdiction Sent: Tuesday, August 22, 2017 7:02 PM To: Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>;jordan(a)internetnz.net.nz<mailto:jordan@internetnz.net.nz>; thiago.jardim(a)itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>; ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] [EXTERNAL] Re: ISSUE: In rem Jurisdiction over ccTLDs Fwiw, to the extent that US courts have in rem jurisdiction over domain names, my recollection is that is a function of very specific anti-squatting trademark law and is extremely unlikely to apply to ccTLDs. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

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Re: [Ws2-jurisdiction] [EXTERNAL] Re: ISSUE: In rem Jurisdiction over ccTLDs
by Burr, Becky Aug. 24, 2017

Aug. 24, 2017

Fwiw, to the extent that US courts have in rem jurisdiction over domain names, my recollection is that is a function of very specific anti-squatting trademark law and is extremely unlikely to apply to ccTLDs. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 Follow Neustar: LinkedIn / Twitter Reduce your environmental footprint. Print only if necessary. ________________________________ The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message. From: <ws2-jurisdiction-bounces(a)icann.org<mailto:ws2-jurisdiction-bounces@icann.org>> on behalf of "Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>" <Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Date: Tuesday, August 22, 2017 at 4:54 AM To: "jordan(a)internetnz.net.nz<mailto:jordan@internetnz.net.nz>" <jordan(a)internetnz.net.nz<mailto:jordan@internetnz.net.nz>>, "thiago.jardim(a)itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>" <thiago.jardim(a)itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>>, "ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org>" <ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: [EXTERNAL] Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs Dear Jordan and all, I do not think that the issue proposed and the CCNSO process and safeguards are mutually exclusive. Kind regards Jorge Von: ws2-jurisdiction-bounces(a)icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Jordan Carter Gesendet: Dienstag, 22. August 2017 11:59 An: Thiago Braz Jardim Oliveira <thiago.jardim(a)itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>>; ws2-jurisdiction <ws2-jurisdiction(a)icann.org<mailto:ws2-jurisdiction@icann.org>> Betreff: Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs Dear Thiago, dear all, Dispute resolution regarding ccTLD matters is currently the subject of a PDP in the ccNSO. This isn't the perfect link but does give some info: https://www.icann.org/public-comments/ccnso-pdp-retirement-review-2017-05-2…<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_public-2…> While the existence of the PDP does not prevent this sub-group of the CCWG discussing this matter, my understanding of ICANN's bylaws is that the Board would not be able to accept any WS2 recommendation on this subject. That is a hard won protection of our ccTLD independence that has been a feature of the ICANN system since the ccNSO was formed. As such, the Jurisdiction group may prefer to focus its effort and energy on matters where implementable recommendations can be made by the CCWG. Hope this helps, Jordan On Tue, 22 Aug 2017 at 1:32 PM, Thiago Braz Jardim Oliveira <thiago.jardim(a)itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>> wrote: Dear All, For your consideration: Issue 3: In rem Jurisdiction over ccTLDs Description: US courts have in rem jurisdiction over domain names as a result of ICANN's place of incorporation, and US courts and US enforcement agencies could possibly exercise its exclusive enforcement jurisdiction over ICANN to compel it to re-delegate ccTLDs. This is contrary, in particular, to paragraph 63 of the Tunis Agenda: "Countries should not be involved in decisions regarding another country's country-code Top-Level Domain (ccTLD). Their legitimate interests, as expressed and defined by each country, in diverse ways, regarding decisions affecting their ccTLDs, need to be respected, upheld and addressed via a flexible and improved framework and mechanisms." It is to be noted that while paragraph 63 may not state that States have sovereignty over ccTLDs, it does establish that States should not interfere with ccTLDs. Further, an obligation on States not to interfere with certain matters, as ccTLDs, need not be based on the principle of sovereignty to exist, nor does it suppose that the matter is one subject to the sovereignty of States. For States can simply agree to limit their ability to interfere with ccTLDs delegated to other countries, and this is the principle embodied in Paragraph 63 of the Tunis Agenda. Proposed solution: ICANN should seek jurisdictional immunities in respect of ICANN's activities relating to the management of ccTLDs. In addition, it should be included in ICANN Bylaws an exclusive choice of forum provision, whereby disputes relating to the management of any given ccTLD by ICANN shall be settled exclusively in the courts of the country to which the ccTLD in question refer. A similar exclusive choice of forum clause shall be included in those contracts ICANN may have with ccTLD managers, where such a contract exists. Best regards, Thiago _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction(a)icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_l…> -- Jordan Carter | Chief Executive, InternetNZ +64-21-442-649 | jordan(a)internetnz.net.nz<mailto:jordan@internetnz.net.nz> Sent on the run, apologies for brevity

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