I fully support Jordan's intervention here. Neither this group nor the ICANN Board can legislate for ccTLDs - the strong respecting of the principle of subsidiarity by ICANN is fundamental to the relationship tween the ccTLD community and ICANN, enabling the 2003 Montreal Agreement which rescued the multistakeholder model, reversing the previous year's formal rejection and abandonment of the ICANN system by ccTLDs. On 22/08/17 10:58, Jordan Carter wrote:

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-2017-05-24...

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@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@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

-- Jordan Carter | Chief Executive, InternetNZ

+64-21-442-649 | jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>

Sent on the run, apologies for brevity

_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

Kavouss, Thiago, all As is clear from the ratio in the Weinstein case, it has not been ruled that the US courts will exercise /in rem/ jurisdiction over ccTLDs. (the question is open -- in rem certainly applies to second level gtld domains, and ccTLD domains registered with a US registrar). What IS clear, from history, is that ICANN has, in the past, acted in a way that in my country would be defined as 'blackmail'. Viz: refusing to make IANA changes unless and until a particular country agreed to sign a contract on ICANN's terms over its ccTLD. Others related to that specific ccTLD can confirm their recollection and may do so. Whilst you appear to be agreeing with me on the point of subsidiarity, it is clear to me that providing ICANN-PTI with blankey immunity from all actions it could take, would allow it to return to that behaviour, with impunity. So in fact, ccTLDs would LOSE the subsidiarity they currently enjoy. I fully understand the concerns regarding OFAC etc. But that's a reason for ICANN to work with the General Licencing regime to mollify those concerned. It's not a reason to give IANA the freedom to do whatever it likes without the Rule of Law applying. There is no intrinsic problem that needs solving with the ccTLD system. That system has has been carefully and cooperatively reviewed by ICANN staff, cctLD managers and GAC members over a 7 years period resulting the policy framework we have know. One concern IS certainly the potential effects of OFAC. This does need to be explored further and the consideration of the meaning "prohibited transaction" (I don't think ICANN carries out any) and if it does, the obtaining of a general licence. But this is no reason to tear up the policy work we've done in the ccTLD community over, literally decades, to arrive at the workable system we have today, over the disaster that was ICANN in 2001-2. And isn't this WG about jurisdiction, anyway? On 22/08/17 11:50, CISAS wrote:

Dear Mr Roberts,

Thank you for your email.

Please be advised that email addresses that are not commonly sent to CISAS can be interpreted as spam by our server and as such will not be allowed through to the inbox. You original email was un-junked and as such we should experience no further problems receiving your emails.

I am sorry that any information you received from Bintu was incorrect and that you felt my answers were evasive. I have sent you the CEDR Complaints Procedure previously which you will need to use in order to make a complaint about the CISAS service.

I can confirm that Numbergroup Network Communications (Ireland) Limited is a member of CISAS. This company also goes by the name of Numbergroup Network Limited. We can therefore take on complaints about a company with either of the aforementioned names.

There is no record of a companies named ‘Numbergrp Network Communications Ltd’ or ‘Numbergrp Ltd’ being a member of CISAS. I suggest that you contact Ofcom in order to obtain further information regarding these companies.

Kind regards,

Holly Quinn CISAS Team Leader

As you must know (from the Weinstein case) On 22/08/17 12:21, Kavouss Arasteh wrote:

Dear All I have noted some immediate rush and reaction to the proposal made by Thiago He raised an important issue which I have also taken with reference to a Resolution adopted by Plenipotentiary Conference of ITU Busan to which the United States of America which hosting ICANN venue and ICANN applicable law regarding non interference of any State in the ccTLD of other States. This has nothing to do with the development of PDP in process as it may takes years to finalize during which the ccTLD of other states would be detrimentally impacted. We have established WS2 and its sub grouop dealing with jurisdiction which is quite eligible to address the issue .We need to understand each other ^s problems and not make back and fort the issues which is of fundamental and crucial importance. Please also see my issue 2 Regards Kavouss

having read our immediate reaction but

On Tue, Aug 22, 2017 at 12:23 PM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:s

I fully support Jordan's intervention here.

Neither this group nor the ICANN Board can legislate for ccTLDs - the strong respecting of the principle of subsidiarity by ICANN is fundamental to the relationship tween the ccTLD community and ICANN, enabling the 2003 Montreal Agreement which rescued the multistakeholder model, reversing the previous year's formal rejection and abandonment of the ICANN system by ccTLDs.

On 22/08/17 10:58, Jordan Carter wrote:

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-2017-05-24... <https://www.icann.org/public-comments/ccnso-pdp-retirement-review-2017-05-24...>

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@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br> <mailto:thiago.jardim@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@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>

-- Jordan Carter | Chief Executive, InternetNZ

+64-21-442-649 <tel:%2B64-21-442-649> | jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> <mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>>

Sent on the run, apologies for brevity

_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@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@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>

As I think should be clear, of course I can't do that since there is just no such legal rule (statute or decided case). Your analogy would, naturally, be one of the arguments that might be advance in any possible future Claim seeking to advance a proposition like that in the Weinstein case. There would no doubt be counter-argument. Since, as yet, there has been no such Claim, let alone a judgment from which a ratio can be extracted, and absent any statutory provision (of which I'm not aware of any) it's just not part of the law And before you can argue about in rem at all, you first need to establish that a ccTLD is propert and that in rem is relevant (see below). Respected academic opinion /might/ tend to suggest that ccTLDs /may/ be property. I personally suspect that a ccTLD delegation would be considered to be a particular kind of 'thing' if the matter were considered in England. I would start the legal reasoning with a quote from Jonathan Sumption QC (as he then was) in British Telecommunications Plc and Telecom Securicor Cellular Radio Ltd -v- One in a Million and others CH 1997 B.5421 But that's all it is at this stage, an opinion. In other words, there's still no authority even for the contention that ccTLDs are property, let alone whether in rem jurisdiction applies to such property (which we are not yet sure IS property, yet). In any event,unless I am misinformed (since US statute law generally outwith my areas of knowledge) in rem jurisdiction is a statutory construct of the ACPA and not something that can be applied willy-nilly. So unless you are adopting a strained construction of the statute, I suspect it is very likely that no TLD (whether ccTLD or gTLD) is subject to its provisions. I have also found the following paper quite interesting when informing myself about in rem jurisdiction under the ACPA. See Michael X. Liu, Jurisdictional Limits of in rem Proceedings Against Domain Names, 20 Mich. Telecomm. & Tech. L. Rev. 467 (2014). Available at: http://repository.law.umich.edu/mttlr/vol20/iss2/5 On 23/08/17 05:02, parminder wrote:

On Tuesday 22 August 2017 06:09 PM, Nigel Roberts wrote:

...

Kavouss, Thiago, all

As is clear from the ratio in the Weinstein case, it has not been ruled that the US courts will exercise /in rem/ jurisdiction over ccTLDs. (the question is open -- in rem certainly applies to second level gtld domains, and ccTLD domains registered with a US registrar).

Nigel,

Can you explain to me what is the difference in the eyes of US law and its courts between second level domains (managed by registrars and registries) by and first level (by ICANN and registries) . That is very pertinent, and will be most useful to know...

parminder

...

What IS clear, from history, is that ICANN has, in the past, acted in a way that in my country would be defined as 'blackmail'.

Viz: refusing to make IANA changes unless and until a particular country agreed to sign a contract on ICANN's terms over its ccTLD.

Others related to that specific ccTLD can confirm their recollection and may do so.

Whilst you appear to be agreeing with me on the point of subsidiarity, it is clear to me that providing ICANN-PTI with blankey immunity from all actions it could take, would allow it to return to that behaviour, with impunity.

So in fact, ccTLDs would LOSE the subsidiarity they currently enjoy.

I fully understand the concerns regarding OFAC etc. But that's a reason for ICANN to work with the General Licencing regime to mollify those concerned. It's not a reason to give IANA the freedom to do whatever it likes without the Rule of Law applying.

There is no intrinsic problem that needs solving with the ccTLD system.

That system has has been carefully and cooperatively reviewed by ICANN staff, cctLD managers and GAC members over a 7 years period resulting the policy framework we have know.

One concern IS certainly the potential effects of OFAC.

This does need to be explored further and the consideration of the meaning "prohibited transaction" (I don't think ICANN carries out any) and if it does, the obtaining of a general licence.

But this is no reason to tear up the policy work we've done in the ccTLD community over, literally decades, to arrive at the workable system we have today, over the disaster that was ICANN in 2001-2.

And isn't this WG about jurisdiction, anyway?

On 22/08/17 11:50, CISAS wrote:

...

Dear Mr Roberts,

Thank you for your email.

Please be advised that email addresses that are not commonly sent to CISAS can be interpreted as spam by our server and as such will not be allowed through to the inbox. You original email was un-junked and as such we should experience no further problems receiving your emails.

I am sorry that any information you received from Bintu was incorrect and that you felt my answers were evasive. I have sent you the CEDR Complaints Procedure previously which you will need to use in order to make a complaint about the CISAS service.

I can confirm that Numbergroup Network Communications (Ireland) Limited is a member of CISAS. This company also goes by the name of Numbergroup Network Limited. We can therefore take on complaints about a company with either of the aforementioned names.

There is no record of a companies named ‘Numbergrp Network Communications Ltd’ or ‘Numbergrp Ltd’ being a member of CISAS. I suggest that you contact Ofcom in order to obtain further information regarding these companies.

Kind regards,

Holly Quinn CISAS Team Leader

As you must know (from the Weinstein case)

On 22/08/17 12:21, Kavouss Arasteh wrote:

...

Dear All I have noted some immediate rush and reaction to the proposal made by Thiago He raised an important issue which I have also taken with reference to a Resolution adopted by Plenipotentiary Conference of ITU Busan to which the United States of America which hosting ICANN venue and ICANN applicable law regarding non interference of any State in the ccTLD of other States. This has nothing to do with the development of PDP in process as it may takes years to finalize during which the ccTLD of other states would be detrimentally impacted. We have established WS2 and its sub grouop dealing with jurisdiction which is quite eligible to address the issue .We need to understand each other ^s problems and not make back and fort the issues which is of fundamental and crucial importance. Please also see my issue 2 Regards Kavouss

having read our immediate reaction but

On Tue, Aug 22, 2017 at 12:23 PM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:s

I fully support Jordan's intervention here.

Neither this group nor the ICANN Board can legislate for ccTLDs - the strong respecting of the principle of subsidiarity by ICANN is fundamental to the relationship tween the ccTLD community and ICANN, enabling the 2003 Montreal Agreement which rescued the multistakeholder model, reversing the previous year's formal rejection and abandonment of the ICANN system by ccTLDs.

On 22/08/17 10:58, Jordan Carter wrote:

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-2017-05-24...

<https://www.icann.org/public-comments/ccnso-pdp-retirement-review-2017-05-24...>

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@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br> <mailto:thiago.jardim@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@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>

-- Jordan Carter | Chief Executive, InternetNZ

+64-21-442-649 <tel:%2B64-21-442-649> | jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> <mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>>

Sent on the run, apologies for brevity

_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@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@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@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

This is in danger of veering away from the Charter of this WG, I think. But unless the Chairs object, I will give a short answer. Nothing in anything ICANN does can constrain the ability of the sovereign to legislate. This is recognised. It is trite law. It's also trite law that the Government of a country or territory is the ultimate authority on public policy. It's a SIP whose views at delegation time are taken seriously into account. This doesn't automatically give it the right to issue orders to ICANN that must be followed. Nor does it automatically give a government ownership of a ccTLD, just like countries don't automatically own telecoms companies or the railways. (Many did, and some still do). But countries can exercise their lawful powers in many ways. And RFC 1591 requires an admin contact in the country (not necessarily territory, in the case of territorial ccTLDs, which I know Niue is not). The admin contact is thereoore automatically subject to the lawful exercise of State (i.e. sovereign) powers. The true nature of a ccTLD delegation remains unclear - it is quasi-contractual, not statutory or treaty-based. The mere existence of a two letter TLD does not make the property of the sovereign unless that country was one (like North Korea) where a state actor received the delegation from IANA. I would encourage this discussion to take place in its appropriate place, which is the ccNSO if it relates to global policy that is necessary to be global. On 23/08/17 10:42, Pär Brumark wrote:

Nigel,

if the issue was, as you claim, matters were settled and solved since long, we would not have this discussion and examples like Niue´s ccTLD .nu would not remain unsolved.

Or?

I would rather say that the matter was buried. Perhaps momentary wisely, in order to avoid some conflicts at the time.

But burying this fundamental issue has lead to inconsistency, long drawn interpretations of the RFC1591 like the FOI that has to be interpitaded in itself by the FOIWG e t c e t c.

It is not about destroying the multi stakeholder model as you claim to fear (with almost apocalyptic scaremongering). I would rather say the opposite - clarifying changes could rather improve the multi-stakeholder model framework and ICANN´s legitimacy.

The world has changed and ICANN has matured and enlarged since the early days when the RFC1591 was the fundament for everything. What you seem to imply is that the only and perfect solution has somehow been found.

Niue can hardly agree with you.

Now, I do not want to harm my message in this answer by using to many references and quotes about how settled the jurisdiction issues NOT are, but the latest attempt to start sorting things out was the very time consuming ccNSO work with The FOI/FOIWG finished in 2015.

The following statement is the GAC´s standpoint regarding the full FOI/FOIWG is from ICANN52, Singapore, 2015.

From the GAC Communiqe, Singapore, 2015:

---

"4.*Framework of Interpretation Working Group (FOIWG) Report *

The GAC notes the work of the ccNSO FOIWG, and its efforts to provide interpretive clarity to RFC1591. The GAC welcomes the FOIWG’s recognition that, consistent with the GAC’s 2005 Principles, the ultimate authority on public policy issues relating to ccTLDs is the relevant government. As such, nothing in the FOIWG report should be read to limit or constrain applicable law and governmental decisions, or the IANA operator´s ability to act in line with a request made by the relevant government.".

---

Best Regards,

Pär

On 2017-08-22 14:39, Nigel Roberts wrote:

...

Kavouss, Thiago, all

As is clear from the ratio in the Weinstein case, it has not been ruled that the US courts will exercise /in rem/ jurisdiction over ccTLDs. (the question is open -- in rem certainly applies to second level gtld domains, and ccTLD domains registered with a US registrar).

What IS clear, from history, is that ICANN has, in the past, acted in a way that in my country would be defined as 'blackmail'.

Viz: refusing to make IANA changes unless and until a particular country agreed to sign a contract on ICANN's terms over its ccTLD.

Others related to that specific ccTLD can confirm their recollection and may do so.

Whilst you appear to be agreeing with me on the point of subsidiarity, it is clear to me that providing ICANN-PTI with blankey immunity from all actions it could take, would allow it to return to that behaviour, with impunity.

So in fact, ccTLDs would LOSE the subsidiarity they currently enjoy.

I fully understand the concerns regarding OFAC etc. But that's a reason for ICANN to work with the General Licencing regime to mollify those concerned. It's not a reason to give IANA the freedom to do whatever it likes without the Rule of Law applying.

There is no intrinsic problem that needs solving with the ccTLD system.

That system has has been carefully and cooperatively reviewed by ICANN staff, cctLD managers and GAC members over a 7 years period resulting the policy framework we have know.

One concern IS certainly the potential effects of OFAC.

This does need to be explored further and the consideration of the meaning "prohibited transaction" (I don't think ICANN carries out any) and if it does, the obtaining of a general licence.

But this is no reason to tear up the policy work we've done in the ccTLD community over, literally decades, to arrive at the workable system we have today, over the disaster that was ICANN in 2001-2.

And isn't this WG about jurisdiction, anyway?

On 22/08/17 11:50, CISAS wrote:

...

Dear Mr Roberts,

Thank you for your email.

Please be advised that email addresses that are not commonly sent to CISAS can be interpreted as spam by our server and as such will not be allowed through to the inbox. You original email was un-junked and as such we should experience no further problems receiving your emails.

I am sorry that any information you received from Bintu was incorrect and that you felt my answers were evasive. I have sent you the CEDR Complaints Procedure previously which you will need to use in order to make a complaint about the CISAS service.

I can confirm that Numbergroup Network Communications (Ireland) Limited is a member of CISAS. This company also goes by the name of Numbergroup Network Limited. We can therefore take on complaints about a company with either of the aforementioned names.

There is no record of a companies named ‘Numbergrp Network Communications Ltd’ or ‘Numbergrp Ltd’ being a member of CISAS. I suggest that you contact Ofcom in order to obtain further information regarding these companies.

Kind regards,

Holly Quinn CISAS Team Leader

As you must know (from the Weinstein case)

On 22/08/17 12:21, Kavouss Arasteh wrote:

...

Dear All I have noted some immediate rush and reaction to the proposal made by Thiago He raised an important issue which I have also taken with reference to a Resolution adopted by Plenipotentiary Conference of ITU Busan to which the United States of America which hosting ICANN venue and ICANN applicable law regarding non interference of any State in the ccTLD of other States. This has nothing to do with the development of PDP in process as it may takes years to finalize during which the ccTLD of other states would be detrimentally impacted. We have established WS2 and its sub grouop dealing with jurisdiction which is quite eligible to address the issue .We need to understand each other ^s problems and not make back and fort the issues which is of fundamental and crucial importance. Please also see my issue 2 Regards Kavouss

having read our immediate reaction but

On Tue, Aug 22, 2017 at 12:23 PM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:s

I fully support Jordan's intervention here.

Neither this group nor the ICANN Board can legislate for ccTLDs - the strong respecting of the principle of subsidiarity by ICANN is fundamental to the relationship tween the ccTLD community and ICANN, enabling the 2003 Montreal Agreement which rescued the multistakeholder model, reversing the previous year's formal rejection and abandonment of the ICANN system by ccTLDs.

On 22/08/17 10:58, Jordan Carter wrote:

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-2017-05-24...

<https://www.icann.org/public-comments/ccnso-pdp-retirement-review-2017-05-24...>

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@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br> <mailto:thiago.jardim@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@icann.org <mailto:Ws2-jurisdiction@icann.org> <mailto:Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>

-- Jordan Carter | Chief Executive, InternetNZ

+64-21-442-649 <tel:%2B64-21-442-649> | jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> <mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>>

Sent on the run, apologies for brevity

_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@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@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@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

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@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@itamaraty.gov.br>; ws2-jurisdiction <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-2017-05-24... 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@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@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Jordan Carter | Chief Executive, InternetNZ +64-21-442-649 | jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Sent on the run, apologies for brevity

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 If a second level domain is subject to potential seizure, why not a TLD? Regards Jorge -----Ursprüngliche Nachricht----- Von: 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@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@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

-----Original Message-----

...

please excuse my ignorance, but have domain names not be seized as "assets" or "property" in the US under the application of domestic law?

No, they haven't. Not if you are talking about ccTLDs. If you can't name an example of which ccTLD to whom this happened, it's quite possible that such an example does not exist.

...

Wikipedia info is here: https://en.wikipedia.org/wiki/Operation_In_Our_Sites

These were second-level domains registered under .com, a US-based registry. This may be the third or fourth time you've failed to distinguish between 2LDs and TLDs, Parminder, and have had to be corrected. If a registry (i.e., .COM) is a business in US jurisdiction, yes, US law applies to it. But this has nothing to do with ICANN's jurisdiction and nothing we do to or with ICANN will change it.

...

If a second level domain is subject to potential seizure, why not a TLD?

I guess you didn’t actually read the court case about .IR, did you? Or our wonderful ;-) law review article about it. http://www.stlr.org/download/volumes/volume18/muellerBadiei.pdf I'd encourage you to do so, the answer to this question lies therein. Dr. Milton L Mueller Professor, School of Public Policy Georgia Institute of Technology Internet Governance Project http://internetgovernance.org/

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@bakom.admin.ch> <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

If a second level domain is subject to potential seizure, why not a TLD?

Regards

Jorge

-----Ursprüngliche Nachricht----- Von: 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@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@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

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@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@bakom.admin.ch> <

...

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

If a second level domain is subject to potential seizure, why not a TLD?

Regards

Jorge

-----Ursprüngliche Nachricht----- Von: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounc es@icann.org] Im Auftrag von Nigel Roberts Gesendet: Mittwoch, 23. August 2017 08:44 An: 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@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

_______________________________________________

Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

On Wednesday 23 August 2017 05:37 PM, farzaneh badii wrote:

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).

Jurisdictional immunity, in my understanding, is to be given to ICANN, including in terms of its ccTLD related actions, and not to ccTLDs or its managers

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.

Agree, choice of law provisions only apply to adjudicating on terms of a given private contract (private law) and not on public law related proceedings .

Farzaneh

On Wed, Aug 23, 2017 at 7:05 AM, Nigel Roberts <nigel@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@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>> <Jorge.Cancio@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@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@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@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@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@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@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@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

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@icann.org [ws2-jurisdiction-bounces@icann.org] em nome de farzaneh badii [farzaneh.badii@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@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@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> <Jorge.Cancio@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 If a second level domain is subject to potential seizure, why not a TLD? Regards Jorge -----Ursprüngliche Nachricht----- Von: ws2-jurisdiction-bounces@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@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@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

On Wednesday 23 August 2017 09:14 PM, Nigel Roberts wrote:

snip How do you design immunity in a way that does not immunise ICANN from liability for arbitrary or unlawful actions?

That requires two things (1) make necessary exceptions to general immunity under IOI Act, binding ICANN to procedural and private law aspects, so that it cannot go out of its procedures laid in its bylaws, created by the community, and amendable by it. And if it does so, coercive force of law can be made to bear upon it to make it behave. (2) Have an international panel of judicial oversight - preferably, in two layers - over ICANN, which is specifically developed for the purpose. This oversight prevents ICANN from undertaking arbitrary and unlawful actions, and its judgements are enforceable by private law provisions of the relevant US law under which ICANN continues to operate (as an exception to general immunity under IOI Act). This judicial oversight should have special relationship with community oversight mechanisms, if needed through new procedural rules and laws, so that the two work together as an effective check against arbitrary and unlawful action by ICANN's management. Lets have some faith in institutions other than the US state's alone (although in the above arrangement we are selectively employing some of the US institutions as well). Was ICANN not supposed to be all about evolving a new bottom up governance and accountability system? Why do we then get nervous and abdicate at a crunch time like the present one. And why is the absolute greatness of ICANN's governance model - with qualities of democratic, inclusive, bottom up, autonomy, and so on -- only touted against other governments of the world, even if working together democratically, but it simply falls on its knees in front of the US state!!??? One needs a response to it. Such discrimination cannot be accepted. People outside the US too have rights, and sense of democratic dignity. We are well into the 21st century to allow such levels of discrimination. I appeal to at least the non USians here to protest against such discriminatory behaviour, but also to the well-known democratic instincts of the US-ians. parminder

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@icann.org [ws2-jurisdiction-bounces@icann.org] em nome de farzaneh badii [farzaneh.badii@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@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@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>> <Jorge.Cancio@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@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@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@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@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@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@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@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

Agree on all 4 points and the conclusion 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 Sent from my iPad On Aug 23, 2017, at 1:06 PM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: Dear Farzaneh Regarding the question of precedent – it depends what you mean 😊. The US court system is mostly geographically based. As a result the only court that can bind the entire court system of the nation is the US Supreme Court. As a matter of pure law, the decision in the .IR case, which was handed down by a court of appeals in the District of Columbia (i.e. the US capitol – Washington) is binding, mandatory precedent ONLY here in Washington DC. That having been said: 1. Since the US government is here in Washington, many important and precedent setting cases (like this one) are decided in Washington and then the rest of the country’s courts tend to follow the lead of the DC court – not because they are legally required to do so, but because in our system it is rare (not unheard of, but rare) for courts outside Washington to purposefully set up a conflict with the DC court. 2. This is especially so because the court in Washington is considered by most to be the second most important and influential court in the country, after the US Supreme Court. So much so that 3 of the current Justices (there are 9 total) were first judges in the DC court. 3. It is also likely to be followed outside of DC because it is actually the “right” decision (to the extent anything in law is ever “right”). There was no disagreement in DC – 3 judges all voted the same way (and affirmed a 4th lower court judge who came to the same answer through a different argument). 4. Finally, note that in cases like this, the lawyers only get paid if they win. Having lost the .IR case so decisively, it is unlikely that many lawyers will want to waste time and money trying again. I think ICANN won a significant victory in the .IR case that will be very, very likely to hold up in the long run. At least that is what I would advise a client if they asked me. Cheers Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of farzaneh badii Sent: Wednesday, August 23, 2017 8:07 AM To: Nigel Roberts <nigel@channelisles.net<mailto:nigel@channelisles.net>> Cc: ws2-jurisdiction <ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org>> Subject: 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@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@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> <Jorge.Cancio@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 If a second level domain is subject to potential seizure, why not a TLD? Regards Jorge -----Ursprüngliche Nachricht----- Von: ws2-jurisdiction-bounces@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@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@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

Thanks Milton for restating the facts of the case. It is significant that (1) the US court exercised its jurisdiction over the relationship between a ccTLD and ICANN, and did not refrain from exercising jurisdiction. This is a most important point to note. (2) Even if provisionally, it did proceed as if a ccTLD is sizeable property. (3) It rightly decided that on the balance a seizure of ccTLD would much more adversely affect the interests of ICANN, a US party, even when it was at no fault, than it could cause positive benefit to the interests of the party which brought the suit. And therefore the court dismissed it. However, in another case, the balance could be decided by the court to be different, especially if ICANN could also be judged, in the wisdom of the court, to have been procedurally or substantially deficient, and the nature of the interests of the plaintiff that are involved judged to be high importance, such that to deny the latter be considered as a miscarriage of justice, while the corresponding loss to ICANN, given its partial deficiency, not so much. The question is, what happens then? We are trying to provide for such cases. parminder On Thursday 24 August 2017 08:30 PM, Mueller, Milton L wrote:

Some people have shown a lack of awareness of the nature of the Appeals Court decision regarding the .IR ccTLD Paul is discussing below. So here is our summary of its import:

The latest decision in the ICANN case departed sharply from prior legal precedents. The court looked beyond the narrow issue of whether the .IR ccTLD was attachable property. It assumed, “without deciding,” that “the ccTLDs the plaintiffs seek constitute ‘property’ under the Foreign Sovereigns Immunity Act and, further, that the defendant sovereigns have some attachable ownership interest in them.” Thus ICANN’s weak arguments against the property status of TLDs had no impact on the decision. Instead, the court refused to allow the .IR domain to be seized because:

“the court has the “authority” to “prevent appropriately the impairment of an interest held by a person who is not liable

in the action giving rise to a judgment” — i.e., we are expressly authorized to protect the interests of ICANN and other entities. Because of the enormous third-party interests at stake—and because there is no way to execute on the plaintiffs’ judgments without impairing those interests—we cannot permit attachment.”

By “requiring ICANN to delegate ‘.ir’ to the plaintiffs,” the court opined, the plaintiffs “would bypass ICANN’s process for ccTLD delegation” and this would have a harmful impact on the global DNS and on ICANN itself.

So, to summarize: TLDs may well be attachable property, but in this case, and in most conceivable ccTLD redelegation cases, 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.

--MM

*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Phil Corwin *Sent:* Wednesday, August 23, 2017 4:04 PM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs

Agree on all 4 points and the conclusion

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

Sent from my iPad

On Aug 23, 2017, at 1:06 PM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:

Dear Farzaneh

Regarding the question of precedent – it depends what you mean 😊. The US court system is mostly geographically based. As a result the only court that can bind the entire court system of the nation is the US Supreme Court. As a matter of pure law, the decision in the .IR case, which was handed down by a court of appeals in the District of Columbia (i.e. the US capitol – Washington) is binding, mandatory precedent ONLY here in Washington DC. That having been said:

1. Since the US government is here in Washington, many important and precedent setting cases (like this one) are decided in Washington and then the rest of the country’s courts tend to follow the lead of the DC court – not because they are legally required to do so, but because in our system it is rare (not unheard of, but rare) for courts outside Washington to purposefully set up a conflict with the DC court. 2. This is especially so because the court in Washington is considered by most to be the second most important and influential court in the country, after the US Supreme Court. So much so that 3 of the current Justices (there are 9 total) were first judges in the DC court. 3. It is also likely to be followed outside of DC because it is actually the “right” decision (to the extent anything in law is ever “right”). There was no disagreement in DC – 3 judges all voted the same way (and affirmed a 4^th lower court judge who came to the same answer through a different argument). 4. Finally, note that in cases like this, the lawyers only get paid if they win. Having lost the .IR case so decisively, it is unlikely that many lawyers will want to waste time and money trying again.

I think ICANN won a significant victory in the .IR case that will be very, very likely to hold up in the long run. At least that is what I would advise a client if they asked me.

Cheers

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

www.redbranchconsulting.com <http://www.redbranchconsulting.com/>

My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684

*From:* ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *farzaneh badii *Sent:* Wednesday, August 23, 2017 8:07 AM *To:* Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> *Cc:* ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> *Subject:* 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@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@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>> <Jorge.Cancio@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

If a second level domain is subject to potential seizure, why not a TLD?

Regards

Jorge

-----Ursprüngliche Nachricht----- Von: ws2-jurisdiction-bounces@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@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@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

Just to add a bit of info from Wikipedia on the seizures I mentioned: "The domain name seizure process used by Operation In Our Sites was codified in 18 U.S.C. § 981(b)(2), which provides a legal framework for property seizures by the government. Before the seizure, government officials are supposed to investigate suspected websites to find out if they actually purchase or access counterfeit items. The government then contacts the copyright holders to confirm ownership of the intellectual property and suspected infringement. Following the investigation, ICE and NIPRCC officials present the resulting evidence to the U.S. Attorneys, and check the domain name registration. If the domain name was registered in the U.S., the government petitions a magistrate judge to issue a seizure warrant for the domain name. With the warrant, the domain name's title and rights are transferred to the U.S. government. After the seizure, the government is supposed to send a written notice of the forfeiture deadline to the website operator within 60 days from the seizure date. The website owner can file the claim against the government within 35 days after receiving the notice. If the owner files a claim, the government has 90 days to prove that the property is subject to forfeiture. If the owner does not make a claim against the seizure, or the government successfully proves a valid seizure, the domain name is forfeited to the government.[9][10]" This could be applied to TLDs, right? Regards Jorge -----Ursprüngliche Nachricht----- Von: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Im Auftrag von Jorge.Cancio@bakom.admin.ch Gesendet: Mittwoch, 23. August 2017 08:52 An: nigel@channelisles.net; ws2-jurisdiction@icann.org Betreff: Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs 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 If a second level domain is subject to potential seizure, why not a TLD? Regards Jorge -----Ursprüngliche Nachricht----- Von: 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@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@icann.org<mailto:Ws2-jurisdiction@icann.org>

https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

With all respect, while domain seizures by ICE and other US law enforcement agencies have been criticized by many within the US, this issue is entirely outside the jurisdiction of this Jurisdiction group as it has nothing to do with whether ICANN's US incorporation creates risk of undue interference in its policy decisions or technical operations, nor does it relate to other valid jurisdictional issues such as choice of law in ICANN contracts, or ICANN's non-US hubs and offices being subject to the laws of the nations in which they are located. These domain seizures are not dependent on ICANN's US incorporation and could proceed in precisely the same manner if ICANN were incorporated in another jurisdiction, or if it did not exist at all. While In Rem jurisdiction allows cases to proceed where In Personam jurisdiction is not available (that is, the person owning the property or assets at issue is outside the jurisdiction of the court) it still requires a presence in the US, some legally recognized nexus, to be effectively exercised - otherwise it would be an entirely futile undertaking as any court judgment could not be enforced. The case of the Spanish travel company cited in your email was only able to proceed because, despite being engaged in an activity prohibited under US law, they nonetheless inexplicably chose to use a US registrar. If they had utilized a Spanish or any other non-US registrar instead then the case would not likely have been brought because no judgment could be enforced against a party subject to US jurisdiction (presuming that the domains were not those of a US-based registry). I just got off a GNSO Council call in which we received a staff update on the progress of WS2. Unfortunately, this subteam has made the least progress toward completing its work and is most in danger of failing to demonstrate sufficient progress at ICANN 60 to continue its activities. Given the notable lack of progress on matters that are clearly within our remit, and the real possibility of being declared a failed policy state, it is distressing to see new issues being proposed for consideration that lack any clear connection to ICANN jurisdictional issues. 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] On Behalf Of parminder Sent: Wednesday, August 23, 2017 10:29 PM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] ISSUE: In rem Jurisdiction over ccTLDs Thanks Jorge. Very interesting and relevant information. Importantly, also speaks to DN as property question, with clear legal codification in this regard. These domain seizures are no less an important issue than OFAC, and cannot simply not be addressed by this group. And it has been argued from practically the first day in this group, but has been completely neglected. What such seizures actually become are wholly inappropriate means of extension of US law globally. This has been done most till now for enforcement of extremely stringent US intellectual property laws globally, but can be done for other things. What it creates is a chilling effect, entities, including business, begin to make sure that they work within US laws, even when they may not have US as a main or significant place for doing business, or even not at all. This of course is wholly inappropriate, and to repeat, makes DNS an illegal weapon for global domination and control by the US. It must be noted that domain names have been seized even in cases where a business had no US based end. This is a case of seizure by US gov of domain name of a Spanish travel company selling Cuban trips to a British citizen, though with embargo related intentions. https://arstechnica.com/information-technology/2008/03/us-interferes-with-tr... US has made, or arranged for, property seizures in areas other than DNS, especially wrt trade in generic drugs, even when the business was being carried out between non US parties and never touching US territory. I dont see how can this group simply ignore this most significant issue. And I also see no case-by-case remedy for it. Only general immunity under the IOI Act, with the required negative list of exceptions, can address it. parminder On Wednesday 23 August 2017 08:34 PM, Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> wrote: "The domain name seizure process used by Operation In Our Sites was codified in 18 U.S.C. § 981(b)(2), which provides a legal framework for property seizures by the government. Before the seizure, government officials are supposed to investigate suspected websites to find out if they actually purchase or access counterfeit items. The government then contacts the copyright holders to confirm ownership of the intellectual property and suspected infringement. Following the investigation, ICE and NIPRCC officials present the resulting evidence to the U.S. Attorneys, and check the domain name registration. If the domain name was registered in the U.S., the government petitions a magistrate judge to issue a seizure warrant for the domain name. With the warrant, the domain name's title and rights are transferred to the U.S. government. After the seizure, the government is supposed to send a written notice of the forfeiture deadline to the website operator within 60 days from the seizure date. The website owner can file the claim against the government within 35 days after receiving the notice. If the owner files a claim, the government has 90 days to prove that the property is subject to forfeiture. If the owner does not make a claim against the seizure, or the government successfully proves a valid seizure, the domain name is forfeited to the government.[9][10]"