Issue: Domain seizures by US executive agencies like US customs
Issue: US customs have routinely seized domain names belonging to foreign entities, whose owners in their view violate US law. This has mainly been done for alleged violation of intellectual property law, but could have been done for other laws as well, and certainly can be so done in the future. Till now all cases were such as having second level domain names with US based registries, most often Verisign, which runs the .com registry. Therefore US Custom have forced the agency that could help them seize domain names, ie the concerned US based registry". It is obvious that if the "violating" foriegn entity were to own a gTLD -- which is increasingly likely with the great onrush on gTLDs -- US Custom will force ICANN as the "registry" of gTLDs in the same way they earlier acted on US based registries. In the eyes od a US executive agency, there is no legal difference in this regard, for enforcement assistance purpose, between a US based business and a US based non profit like ICANN. Further, it is not just the actual seizure that is the problem. Law exist much more in observance than defiance, and thus visible punishment ensuing from it. Global companies that take on gTLDs, as many are expected to, will experience the "chilling effect <https://en.wikipedia.org/wiki/Chilling_effect>", whereby they already begin to subject their actions to US laws fearing US enforcement powers exercised thorugh the gTLD route. Thereby the global DNS becomes an illegitimate and undemocratic way of extending US law globally. Solution: I do not think any specific exceptions to any organisation or class of actions is even theoritically available under the laws under which US custom makes these seizures. In the circumstances, the only solution is a general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law.
Parminder Nothing is "obvious". You are making a submission, and you have offer us no actual authority for this, other than analogy. What you say is *possible*. But it's not CERTAIN, or even probable. The only authority we have for this, which is Weinsteain, on appeal, seems to indicate that courts, equally likely would prevent the seizure of TLDs, on public policy grounds. And there is a significant distinction here between ccTLDs and gTLDs. So, please, let us not try and build scaffolding when the sky is not falling. On 28/08/17 03:31, parminder wrote:
Issue:
US customs have routinely seized domain names belonging to foreign entities, whose owners in their view violate US law. This has mainly been done for alleged violation of intellectual property law, but could have been done for other laws as well, and certainly can be so done in the future. Till now all cases were such as having second level domain names with US based registries, most often Verisign, which runs the .com registry. Therefore US Custom have forced the agency that could help them seize domain names, ie the concerned US based registry". It is obvious that if the "violating" foriegn entity were to own a gTLD -- which is increasingly likely with the great onrush on gTLDs -- US Custom will force ICANN as the "registry" of gTLDs in the same way they earlier acted on US based registries. In the eyes od a US executive agency, there is no legal difference in this regard, for enforcement assistance purpose, between a US based business and a US based non profit like ICANN.
Further, it is not just the actual seizure that is the problem. Law exist much more in observance than defiance, and thus visible punishment ensuing from it. Global companies that take on gTLDs, as many are expected to, will experience the "chilling effect <https://en.wikipedia.org/wiki/Chilling_effect>", whereby they already begin to subject their actions to US laws fearing US enforcement powers exercised thorugh the gTLD route. Thereby the global DNS becomes an illegitimate and undemocratic way of extending US law globally.
Solution:
I do not think any specific exceptions to any organisation or class of actions is even theoritically available under the laws under which US custom makes these seizures. In the circumstances, the only solution is a general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law.
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On Monday 28 August 2017 01:11 PM, Nigel Roberts wrote:
Parminder
Nothing is "obvious".
You are making a submission, and you have offer us no actual authority for this, other than analogy.
Would you strength the security of your house on the "analogy" that there has been a burglary in the neighbourhood, or should you want for proven instance of someone breaking into your house before you do so......
What you say is *possible*. But it's not CERTAIN, or even probable.
Like is is not certain that your house wil be burgled , and on any given day the probability also in fact is pretty low...
The only authority we have for this, which is Weinsteain, on appeal, seems to indicate that courts, equally likely would prevent the seizure of TLDs, on public policy grounds.
The court took up jurisdiction, and also accepted to treat gtld as sieze-able property, these are the two most important facts of the case. On balance of interests involved, and respective harms and benefits, it decided in a certain manner given certain contingent conditions. Other set of conditions could provide the opposite order, possible of ordering seizure, given that the powers to do so have been asserted.
And there is a significant distinction here between ccTLDs and gTLDs.
Yes, and so?
So, please, let us not try and build scaffolding when the sky is not falling.
It is not falling on your world and interests and they are currently organised, it is falling on other people's. Participation in public policy processes require a sense of justice and fairness for all ... parminder
On 28/08/17 03:31, parminder wrote:
Issue:
US customs have routinely seized domain names belonging to foreign entities, whose owners in their view violate US law. This has mainly been done for alleged violation of intellectual property law, but could have been done for other laws as well, and certainly can be so done in the future. Till now all cases were such as having second level domain names with US based registries, most often Verisign, which runs the .com registry. Therefore US Custom have forced the agency that could help them seize domain names, ie the concerned US based registry". It is obvious that if the "violating" foriegn entity were to own a gTLD -- which is increasingly likely with the great onrush on gTLDs -- US Custom will force ICANN as the "registry" of gTLDs in the same way they earlier acted on US based registries. In the eyes od a US executive agency, there is no legal difference in this regard, for enforcement assistance purpose, between a US based business and a US based non profit like ICANN.
Further, it is not just the actual seizure that is the problem. Law exist much more in observance than defiance, and thus visible punishment ensuing from it. Global companies that take on gTLDs, as many are expected to, will experience the "chilling effect <https://en.wikipedia.org/wiki/Chilling_effect>", whereby they already begin to subject their actions to US laws fearing US enforcement powers exercised thorugh the gTLD route. Thereby the global DNS becomes an illegitimate and undemocratic way of extending US law globally.
Solution:
I do not think any specific exceptions to any organisation or class of actions is even theoritically available under the laws under which US custom makes these seizures. In the circumstances, the only solution is a general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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Thanks Baher I recommend also that Baher participates on behalf of ICANN in this MAG WG due to his previous experience and gives up regular feedback until the end of the year of what happens there Regards Tarek
On Aug 30, 2017, at 13:44, parminder <parminder@itforchange.net> wrote:
On Monday 28 August 2017 01:11 PM, Nigel Roberts wrote: Parminder
Nothing is "obvious".
You are making a submission, and you have offer us no actual authority for this, other than analogy.
Would you strength the security of your house on the "analogy" that there has been a burglary in the neighbourhood, or should you want for proven instance of someone breaking into your house before you do so......
What you say is *possible*. But it's not CERTAIN, or even probable.
Like is is not certain that your house wil be burgled , and on any given day the probability also in fact is pretty low...
The only authority we have for this, which is Weinsteain, on appeal, seems to indicate that courts, equally likely would prevent the seizure of TLDs, on public policy grounds.
The court took up jurisdiction, and also accepted to treat gtld as sieze-able property, these are the two most important facts of the case. On balance of interests involved, and respective harms and benefits, it decided in a certain manner given certain contingent conditions. Other set of conditions could provide the opposite order, possible of ordering seizure, given that the powers to do so have been asserted.
And there is a significant distinction here between ccTLDs and gTLDs.
Yes, and so?
So, please, let us not try and build scaffolding when the sky is not falling.
It is not falling on your world and interests and they are currently organised, it is falling on other people's. Participation in public policy processes require a sense of justice and fairness for all ... parminder
On 28/08/17 03:31, parminder wrote:
Issue:
US customs have routinely seized domain names belonging to foreign entities, whose owners in their view violate US law. This has mainly been done for alleged violation of intellectual property law, but could have been done for other laws as well, and certainly can be so done in the future. Till now all cases were such as having second level domain names with US based registries, most often Verisign, which runs the .com registry. Therefore US Custom have forced the agency that could help them seize domain names, ie the concerned US based registry". It is obvious that if the "violating" foriegn entity were to own a gTLD -- which is increasingly likely with the great onrush on gTLDs -- US Custom will force ICANN as the "registry" of gTLDs in the same way they earlier acted on US based registries. In the eyes od a US executive agency, there is no legal difference in this regard, for enforcement assistance purpose, between a US based business and a US based non profit like ICANN.
Further, it is not just the actual seizure that is the problem. Law exist much more in observance than defiance, and thus visible punishment ensuing from it. Global companies that take on gTLDs, as many are expected to, will experience the "chilling effect <https://urldefense.proofpoint.com/v2/url?u=https-3A__en.wikipedia.org_wiki_C... >", whereby they already begin to subject their actions to US laws fearing US enforcement powers exercised thorugh the gTLD route. Thereby the global DNS becomes an illegitimate and undemocratic way of extending US law globally.
Solution:
I do not think any specific exceptions to any organisation or class of actions is even theoritically available under the laws under which US custom makes these seizures. In the circumstances, the only solution is a general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law.
_______________________________________________ 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
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Apologies This message went out by mistake to the wrong list Apologies again Tarek
On Aug 30, 2017, at 13:48, Tarek Kamel <tarek.kamel@icann.org> wrote:
Thanks Baher
I recommend also that Baher participates on behalf of ICANN in this MAG WG due to his previous experience and gives up regular feedback until the end of the year of what happens there
Regards Tarek
On Aug 30, 2017, at 13:44, parminder <parminder@itforchange.net> wrote:
On Monday 28 August 2017 01:11 PM, Nigel Roberts wrote: Parminder
Nothing is "obvious".
You are making a submission, and you have offer us no actual authority for this, other than analogy.
Would you strength the security of your house on the "analogy" that there has been a burglary in the neighbourhood, or should you want for proven instance of someone breaking into your house before you do so......
What you say is *possible*. But it's not CERTAIN, or even probable.
Like is is not certain that your house wil be burgled , and on any given day the probability also in fact is pretty low...
The only authority we have for this, which is Weinsteain, on appeal, seems to indicate that courts, equally likely would prevent the seizure of TLDs, on public policy grounds.
The court took up jurisdiction, and also accepted to treat gtld as sieze-able property, these are the two most important facts of the case. On balance of interests involved, and respective harms and benefits, it decided in a certain manner given certain contingent conditions. Other set of conditions could provide the opposite order, possible of ordering seizure, given that the powers to do so have been asserted.
And there is a significant distinction here between ccTLDs and gTLDs.
Yes, and so?
So, please, let us not try and build scaffolding when the sky is not falling.
It is not falling on your world and interests and they are currently organised, it is falling on other people's. Participation in public policy processes require a sense of justice and fairness for all ... parminder
On 28/08/17 03:31, parminder wrote:
Issue:
US customs have routinely seized domain names belonging to foreign entities, whose owners in their view violate US law. This has mainly been done for alleged violation of intellectual property law, but could have been done for other laws as well, and certainly can be so done in the future. Till now all cases were such as having second level domain names with US based registries, most often Verisign, which runs the .com registry. Therefore US Custom have forced the agency that could help them seize domain names, ie the concerned US based registry". It is obvious that if the "violating" foriegn entity were to own a gTLD -- which is increasingly likely with the great onrush on gTLDs -- US Custom will force ICANN as the "registry" of gTLDs in the same way they earlier acted on US based registries. In the eyes od a US executive agency, there is no legal difference in this regard, for enforcement assistance purpose, between a US based business and a US based non profit like ICANN.
Further, it is not just the actual seizure that is the problem. Law exist much more in observance than defiance, and thus visible punishment ensuing from it. Global companies that take on gTLDs, as many are expected to, will experience the "chilling effect <https://urldefense.proofpoint.com/v2/url?u=https-3A__en.wikipedia.org_wiki_C... >", whereby they already begin to subject their actions to US laws fearing US enforcement powers exercised thorugh the gTLD route. Thereby the global DNS becomes an illegitimate and undemocratic way of extending US law globally.
Solution:
I do not think any specific exceptions to any organisation or class of actions is even theoritically available under the laws under which US custom makes these seizures. In the circumstances, the only solution is a general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
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On 30/08/17 12:44, parminder wrote:
The court took up jurisdiction, and also accepted to treat gtld as sieze-able property, these are the two most important facts of the case.
The first contention is correct. The second is demonstrably incorrect. This case did not involve either gTLDs or domains registered under them. It involved the ccTLDs of three countries. .IR, .SY and .KP. And the court explicitly stated that domain names (of any kind) were NOT seizable (attachable). A different answer might be given under the law of a different jurisdiction, of course. But those are facts in that case.
Nigel, I quote below Milton Mueller's email of the 24th in full, but putting in bold some relevant text, which negates your position below on tlds as property or not , parminder 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 On Wednesday 30 August 2017 06:03 PM, Nigel Roberts wrote:
On 30/08/17 12:44, parminder wrote:
The court took up jurisdiction, and also accepted to treat gtld as sieze-able property, these are the two most important facts of the case.
The first contention is correct. The second is demonstrably incorrect.
This case did not involve either gTLDs or domains registered under them. It involved the ccTLDs of three countries. .IR, .SY and .KP.
And the court explicitly stated that domain names (of any kind) were NOT seizable (attachable).
A different answer might be given under the law of a different jurisdiction, of course.
But those are facts in that case. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
No, it doesn't. The words "without deciding" are highly relevant, here, and you are overlooking them. This is common practice in courts where a decision can be made without deciding a matter that is alleged. The court, in this case, at first instance, DECIDED that the DC attachment statute does not permit attachment of intangible property. Upon appeal, the court dismissed the Claimants' appeal on different reasoning, without deciding whether domain names are attachable property. Thus there is simply no ratio to that effect that you claim that may be relied upon even in DC, let alone act as persuasive in any other state or common-law jurisdiction. On 30/08/17 13:47, parminder wrote:
Nigel, I quote below Milton Mueller's email of the 24th in full, but putting in bold some relevant text, which negates your position below on tlds as property or not , parminder
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
On Wednesday 30 August 2017 06:03 PM, Nigel Roberts wrote:
On 30/08/17 12:44, parminder wrote:
The court took up jurisdiction, and also accepted to treat gtld as sieze-able property, these are the two most important facts of the case.
The first contention is correct. The second is demonstrably incorrect.
This case did not involve either gTLDs or domains registered under them. It involved the ccTLDs of three countries. .IR, .SY and .KP.
And the court explicitly stated that domain names (of any kind) were NOT seizable (attachable).
A different answer might be given under the law of a different jurisdiction, of course.
But those are facts in that case. _______________________________________________ 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
The precedent created by the decision is that a court-ordered seizure of a ccTLD would impair the interest of ICANN in a globally acceptable delegation process and possibly also impair the interest of its registrants. That supports and is consistent with the global multi stakeholder model. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 Follow Neustar: LinkedIn / Twitter Reduce your environmental footprint. Print only if necessary. ________________________________________ The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message. On 8/30/17, 9:00 AM, "ws2-jurisdiction-bounces@icann.org on behalf of Nigel Roberts" <ws2-jurisdiction-bounces@icann.org on behalf of nigel@channelisles.net> wrote:
No, it doesn't.
The words "without deciding" are highly relevant, here, and you are overlooking them.
This is common practice in courts where a decision can be made without deciding a matter that is alleged.
The court, in this case, at first instance, DECIDED that the DC attachment statute does not permit attachment of intangible property.
Upon appeal, the court dismissed the Claimants' appeal on different reasoning, without deciding whether domain names are attachable property.
Thus there is simply no ratio to that effect that you claim that may be relied upon even in DC, let alone act as persuasive in any other state or common-law jurisdiction.
On 30/08/17 13:47, parminder wrote:
Nigel, I quote below Milton Mueller's email of the 24th in full, but putting in bold some relevant text, which negates your position below on tlds as property or not , parminder
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, ³without deciding,² that ³the ccTLDs the plaintiffs seek constitute Œproperty¹ under the Foreign Sovereigns Immunity Act*/ and, further, that the defendant sovereigns have some attachable ownership interest in them.² Thus ICANN¹s 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:
³the court has the ³authority² to ³prevent appropriately the impairment of an interest held by a person who is not liable in the action giving rise to a judgment² ‹ 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 plaintiffs¹ judgments without impairing those interests‹we cannot permit attachment.²
By ³requiring ICANN to delegate Œ.ir¹ to the plaintiffs,² the court opined, the plaintiffs ³would bypass ICANN¹s process for ccTLD delegation² 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
On Wednesday 30 August 2017 06:03 PM, Nigel Roberts wrote:
On 30/08/17 12:44, parminder wrote:
The court took up jurisdiction, and also accepted to treat gtld as sieze-able property, these are the two most important facts of the case.
The first contention is correct. The second is demonstrably incorrect.
This case did not involve either gTLDs or domains registered under them. It involved the ccTLDs of three countries. .IR, .SY and .KP.
And the court explicitly stated that domain names (of any kind) were NOT seizable (attachable).
A different answer might be given under the law of a different jurisdiction, of course.
But those are facts in that case. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org
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A general note on "assuming without deciding": "Assuming without deciding" (or "assuming arguendo") is a common legal/judicial method of "leapfrogging" (i.e., bypassing) consideration of a particular issue in order to get to and decide another issue that is further down the road -- generally a more important and consequential issue. This is done when the court really wants to confront and decide the latter issue due to its importance, but sees that it will likely never get there if it decides the first issue. There is no decision, much less any precedential value, attached to the result that is being assumed in this way. If anything, it's an indication that the matter "assumed" would be decided in the opposite fashion, which is why the court made the assumption it did -- to get to the issue it really felt needed deciding. It's essential to understand this in order to properly interpret any opinion that uses the method of "assuming without deciding." In this particular case, it's instructive (and encouraging) that the appeals court decided to do this to get to the bigger policy issue -- as Becky put it, "a court-ordered seizure of a ccTLD would impair the interest of ICANN in a globally acceptable delegation process and possibly also impair the interest of its registrants." As a technical matter, I believe the lower court decision on the first point still stands, since their decision was affirmed on different grounds and the appeals court did not overrule the lower court on this point. I won't get into the nuances of how to use this as precedent and where it would be seen as precedent, but it should be understood that the appeals court did not simply wash away the lower court decision. Greg On Wed, Aug 30, 2017 at 9:30 AM, Burr, Becky via Ws2-jurisdiction < ws2-jurisdiction@icann.org> wrote:
The precedent created by the decision is that a court-ordered seizure of a ccTLD would impair the interest of ICANN in a globally acceptable delegation process and possibly also impair the interest of its registrants. That supports and is consistent with the global multi stakeholder model.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367
Follow Neustar: LinkedIn / Twitter Reduce your environmental footprint. Print only if necessary.
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On 8/30/17, 9:00 AM, "ws2-jurisdiction-bounces@icann.org on behalf of Nigel Roberts" <ws2-jurisdiction-bounces@icann.org on behalf of nigel@channelisles.net> wrote:
No, it doesn't.
The words "without deciding" are highly relevant, here, and you are overlooking them.
This is common practice in courts where a decision can be made without deciding a matter that is alleged.
The court, in this case, at first instance, DECIDED that the DC attachment statute does not permit attachment of intangible property.
Upon appeal, the court dismissed the Claimants' appeal on different reasoning, without deciding whether domain names are attachable property.
Thus there is simply no ratio to that effect that you claim that may be relied upon even in DC, let alone act as persuasive in any other state or common-law jurisdiction.
On 30/08/17 13:47, parminder wrote:
Nigel, I quote below Milton Mueller's email of the 24th in full, but putting in bold some relevant text, which negates your position below on tlds as property or not , parminder
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, ³without deciding,² that ³the ccTLDs the plaintiffs seek constitute Œproperty¹ under the Foreign Sovereigns Immunity Act*/ and, further, that the defendant sovereigns have some attachable ownership interest in them.² Thus ICANN¹s 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:
³the court has the ³authority² to ³prevent appropriately the impairment of an interest held by a person who is not liable in the action giving rise to a judgment² ‹ 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 plaintiffs¹ judgments without impairing those interests‹we cannot permit attachment.²
By ³requiring ICANN to delegate Œ.ir¹ to the plaintiffs,² the court opined, the plaintiffs ³would bypass ICANN¹s process for ccTLD delegation² 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
On Wednesday 30 August 2017 06:03 PM, Nigel Roberts wrote:
On 30/08/17 12:44, parminder wrote:
The court took up jurisdiction, and also accepted to treat gtld as sieze-able property, these are the two most important facts of the case.
The first contention is correct. The second is demonstrably incorrect.
This case did not involve either gTLDs or domains registered under them. It involved the ccTLDs of three countries. .IR, .SY and .KP.
And the court explicitly stated that domain names (of any kind) were NOT seizable (attachable).
A different answer might be given under the law of a different jurisdiction, of course.
But those are facts in that case. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org
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I agree 100% with Greg's detailed explanation; which is what I was trying (unsuccessfully, it might appear) to get across at a much higher level. What is also worth noting is that the ratio of lower court's decision, which although not on appeal, could be persuasive precedent, would ONLY apply in DC, or possibly in other states with similar laws (I think from my reading of the arguments that DC and Virginia statutes are pretty much identical on this topic). In other words, the ratio at first instance which (in my view) says: "IF domain names are property (and it seems they might be, but it's not necessary for us to decide whether they are, or not) THEN they would definitely be the kind of property that you CAN'T attach." would have no application in other states with different attachment laws. So it's all very well (and very entertaining) to make submissions about how a legal rule MIGHT apply. But until there's a decided case that's (at the least) persuasive precedent, that would not be the law, just a legal hypothesis. ICANN's past actions, however, ARE a matter of living memory. On 30/08/17 17:26, Greg Shatan wrote:
A general note on "assuming without deciding":
"Assuming without deciding" (or "assuming arguendo") is a common legal/judicial method of "leapfrogging" (i.e., bypassing) consideration of a particular issue in order to get to and decide another issue that is further down the road -- generally a more important and consequential issue. This is done when the court really wants to confront and decide the latter issue due to its importance, but sees that it will likely never get there if it decides the first issue.
There is no decision, much less any precedential value, attached to the result that is being assumed in this way. If anything, it's an indication that the matter "assumed" would be decided in the opposite fashion, which is why the court made the assumption it did -- to get to the issue it really felt needed deciding. It's essential to understand this in order to properly interpret any opinion that uses the method of "assuming without deciding."
In this particular case, it's instructive (and encouraging) that the appeals court decided to do this to get to the bigger policy issue -- as Becky put it, "a court-ordered seizure of a ccTLD would impair the interest of ICANN in a globally acceptable delegation process and possibly also impair the interest of its registrants."
As a technical matter, I believe the lower court decision on the first point still stands, since their decision was affirmed on different grounds and the appeals court did not overrule the lower court on this point. I won't get into the nuances of how to use this as precedent and where it would be seen as precedent, but it should be understood that the appeals court did not simply wash away the lower court decision.
Greg
On Wed, Aug 30, 2017 at 9:30 AM, Burr, Becky via Ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org>> wrote:
The precedent created by the decision is that a court-ordered seizure of a ccTLD would impair the interest of ICANN in a globally acceptable delegation process and possibly also impair the interest of its registrants. That supports and is consistent with the global multi stakeholder model.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 Office: +1.202.533.2932 <tel:%2B1.202.533.2932> Mobile: +1.202.352.6367 <tel:%2B1.202.352.6367>
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On 8/30/17, 9:00 AM, "ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> on behalf of Nigel Roberts" <ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> on behalf of nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:
>No, it doesn't. > >The words "without deciding" are highly relevant, here, and you are >overlooking them. > >This is common practice in courts where a decision can be made without >deciding a matter that is alleged. > >The court, in this case, at first instance, DECIDED that the DC >attachment statute does not permit attachment of intangible property. > >Upon appeal, the court dismissed the Claimants' appeal on different >reasoning, without deciding whether domain names are attachable property. > >Thus there is simply no ratio to that effect that you claim that may be >relied upon even in DC, let alone act as persuasive in any other state >or common-law jurisdiction. > > > >On 30/08/17 13:47, parminder wrote: >> Nigel, I quote below Milton Mueller's email of the 24th in full, but >> putting in bold some relevant text, which negates your position below on >> tlds as property or not , parminder >> >> >> 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, ³without deciding,² that ³the ccTLDs the >>plaintiffs >> seek constitute Œproperty¹ under the Foreign Sovereigns >> Immunity Act*/ and, further, that the defendant sovereigns >> have some attachable ownership interest in them.² Thus >> ICANN¹s 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: >> >> >> >> ³the court has the ³authority² to ³prevent >>appropriately the >> impairment of an interest held by a person who is not liable >> in the action giving rise to a judgment² ‹ 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 plaintiffs¹ judgments without impairing those >> interests‹we cannot permit attachment.² >> >> >> >> By ³requiring ICANN to delegate Œ.ir¹ to the >>plaintiffs,² >> the court opined, the plaintiffs ³would bypass ICANN¹s >> process for ccTLD delegation² 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 >> >> >> >> >> >> On Wednesday 30 August 2017 06:03 PM, Nigel Roberts wrote: >>> >>> >>> On 30/08/17 12:44, parminder wrote: >>> >>>> The court took up jurisdiction, and also accepted to treat gtld as >>>> sieze-able property, these are the two most important facts of the >>>>case. >>> >>> >>> The first contention is correct. The second is demonstrably incorrect. >>> >>> This case did not involve either gTLDs or domains registered under >>>them. >>> It involved the ccTLDs of three countries. .IR, .SY and .KP. >>> >>> And the court explicitly stated that domain names (of any kind) were >>> NOT seizable (attachable). >>> >>> A different answer might be given under the law of a different >>> jurisdiction, of course. >>> >>> But those are facts in that case. >>> _______________________________________________ >>> Ws2-jurisdiction mailing list >>> Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> >>> >>>https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailma <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailma> >>>n_listinfo_ws2-2Djurisdiction&d=DwIF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFO >>>ifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=6eXlg-a2FUnHwDLROR3Pw6_6o6am46qa >>>Q3G8F5cfOXc&s=fXGqZaisry0UForgNEPK0lJ0ZGx1x9aq9H-fRQsI7yg&e= >>> >> >> >> >> _______________________________________________ >> Ws2-jurisdiction mailing list >>Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> >> >>https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman> >>_listinfo_ws2-2Djurisdiction&d=DwIF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOif >>zm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=6eXlg-a2FUnHwDLROR3Pw6_6o6am46qaQ3G >>8F5cfOXc&s=fXGqZaisry0UForgNEPK0lJ0ZGx1x9aq9H-fRQsI7yg&e= >> >_______________________________________________ >Ws2-jurisdiction mailing list >Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> >https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_ <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_> >listinfo_ws2-2Djurisdiction&d=DwIF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm >6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=6eXlg-a2FUnHwDLROR3Pw6_6o6am46qaQ3G8F5 >cfOXc&s=fXGqZaisry0UForgNEPK0lJ0ZGx1x9aq9H-fRQsI7yg&e=
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Exactly right Greg. To which I would only add that the lower court decision would not be “binding” in the District Court of the District of Columbia, but under long-standing precedent in that court other judges would be bound to give it deference and diverge only if convinced it was wrongly decided. In other words it has very strong persuasive effect, but short of mandatory binding Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Greg Shatan Sent: Wednesday, August 30, 2017 12:27 PM To: Burr, Becky <Becky.Burr@team.neustar> Cc: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] [EXTERNAL] Re: Issue: Domain seizures by US executive agencies like US customs A general note on "assuming without deciding": "Assuming without deciding" (or "assuming arguendo") is a common legal/judicial method of "leapfrogging" (i.e., bypassing) consideration of a particular issue in order to get to and decide another issue that is further down the road -- generally a more important and consequential issue. This is done when the court really wants to confront and decide the latter issue due to its importance, but sees that it will likely never get there if it decides the first issue. There is no decision, much less any precedential value, attached to the result that is being assumed in this way. If anything, it's an indication that the matter "assumed" would be decided in the opposite fashion, which is why the court made the assumption it did -- to get to the issue it really felt needed deciding. It's essential to understand this in order to properly interpret any opinion that uses the method of "assuming without deciding." In this particular case, it's instructive (and encouraging) that the appeals court decided to do this to get to the bigger policy issue -- as Becky put it, "a court-ordered seizure of a ccTLD would impair the interest of ICANN in a globally acceptable delegation process and possibly also impair the interest of its registrants." As a technical matter, I believe the lower court decision on the first point still stands, since their decision was affirmed on different grounds and the appeals court did not overrule the lower court on this point. I won't get into the nuances of how to use this as precedent and where it would be seen as precedent, but it should be understood that the appeals court did not simply wash away the lower court decision. Greg On Wed, Aug 30, 2017 at 9:30 AM, Burr, Becky via Ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> > wrote: The precedent created by the decision is that a court-ordered seizure of a ccTLD would impair the interest of ICANN in a globally acceptable delegation process and possibly also impair the interest of its registrants. That supports and is consistent with the global multi stakeholder model. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 Office: +1.202.533.2932 <tel:%2B1.202.533.2932> Mobile: +1.202.352.6367 <tel:%2B1.202.352.6367> Follow Neustar: LinkedIn / Twitter Reduce your environmental footprint. Print only if necessary. ________________________________________ The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message. On 8/30/17, 9:00 AM, "ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> on behalf of Nigel Roberts" <ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> on behalf of nigel@channelisles.net <mailto:nigel@channelisles.net> > wrote:
No, it doesn't.
The words "without deciding" are highly relevant, here, and you are overlooking them.
This is common practice in courts where a decision can be made without deciding a matter that is alleged.
The court, in this case, at first instance, DECIDED that the DC attachment statute does not permit attachment of intangible property.
Upon appeal, the court dismissed the Claimants' appeal on different reasoning, without deciding whether domain names are attachable property.
Thus there is simply no ratio to that effect that you claim that may be relied upon even in DC, let alone act as persuasive in any other state or common-law jurisdiction.
On 30/08/17 13:47, parminder wrote:
Nigel, I quote below Milton Mueller's email of the 24th in full, but putting in bold some relevant text, which negates your position below on tlds as property or not , parminder
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, ³without deciding,² that ³the ccTLDs the plaintiffs seek constitute Œproperty¹ under the Foreign Sovereigns Immunity Act*/ and, further, that the defendant sovereigns have some attachable ownership interest in them.² Thus ICANN¹s 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:
³the court has the ³authority² to ³prevent appropriately the impairment of an interest held by a person who is not liable in the action giving rise to a judgment² ‹ 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 plaintiffs¹ judgments without impairing those interests‹we cannot permit attachment.²
By ³requiring ICANN to delegate Œ.ir¹ to the plaintiffs,² the court opined, the plaintiffs ³would bypass ICANN¹s process for ccTLD delegation² 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
On Wednesday 30 August 2017 06:03 PM, Nigel Roberts wrote:
On 30/08/17 12:44, parminder wrote:
The court took up jurisdiction, and also accepted to treat gtld as sieze-able property, these are the two most important facts of the case.
The first contention is correct. The second is demonstrably incorrect.
This case did not involve either gTLDs or domains registered under them. It involved the ccTLDs of three countries. .IR, .SY and .KP.
And the court explicitly stated that domain names (of any kind) were NOT seizable (attachable).
A different answer might be given under the law of a different jurisdiction, of course.
But those are facts in that case. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>
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Dear Greg, Dear All, It is very disturbing to anyone outside the United States that we should rely on US jurisprudence (and the advice you US lawyers are able to provide), however consistent it might be, to hope that the same United States, the only country with the necessary powers to interfere with ICANN's management of the DNS in a meaningful way, will not exercise such powers to the detriment of other countries or in ways that adversely affect the Internet in other countries. If this issue is not properly addressed, I'm afraid Brazil will have to dissociate itself from any recommendation this subgroup provides. Best, Thiago -----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Em nome de Greg Shatan Enviada em: quarta-feira, 30 de agosto de 2017 13:27 Para: Burr, Becky Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] [EXTERNAL] Re: Issue: Domain seizures by US executive agencies like US customs A general note on "assuming without deciding": "Assuming without deciding" (or "assuming arguendo") is a common legal/judicial method of "leapfrogging" (i.e., bypassing) consideration of a particular issue in order to get to and decide another issue that is further down the road -- generally a more important and consequential issue. This is done when the court really wants to confront and decide the latter issue due to its importance, but sees that it will likely never get there if it decides the first issue. There is no decision, much less any precedential value, attached to the result that is being assumed in this way. If anything, it's an indication that the matter "assumed" would be decided in the opposite fashion, which is why the court made the assumption it did -- to get to the issue it really felt needed deciding. It's essential to understand this in order to properly interpret any opinion that uses the method of "assuming without deciding." In this particular case, it's instructive (and encouraging) that the appeals court decided to do this to get to the bigger policy issue -- as Becky put it, "a court-ordered seizure of a ccTLD would impair the interest of ICANN in a globally acceptable delegation process and possibly also impair the interest of its registrants." As a technical matter, I believe the lower court decision on the first point still stands, since their decision was affirmed on different grounds and the appeals court did not overrule the lower court on this point. I won't get into the nuances of how to use this as precedent and where it would be seen as precedent, but it should be understood that the appeals court did not simply wash away the lower court decision. Greg On Wed, Aug 30, 2017 at 9:30 AM, Burr, Becky via Ws2-jurisdiction <ws2-jurisdiction@icann.org> wrote: The precedent created by the decision is that a court-ordered seizure of a ccTLD would impair the interest of ICANN in a globally acceptable delegation process and possibly also impair the interest of its registrants. That supports and is consistent with the global multi stakeholder model. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 Office: +1.202.533.2932 <tel:%2B1.202.533.2932> Mobile: +1.202.352.6367 <tel:%2B1.202.352.6367> Follow Neustar: LinkedIn / Twitter Reduce your environmental footprint. Print only if necessary. ________________________________________ The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message. On 8/30/17, 9:00 AM, "ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> on behalf of Nigel Roberts" <ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> on behalf of nigel@channelisles.net> wrote: >No, it doesn't. > >The words "without deciding" are highly relevant, here, and you are >overlooking them. > >This is common practice in courts where a decision can be made without >deciding a matter that is alleged. > >The court, in this case, at first instance, DECIDED that the DC >attachment statute does not permit attachment of intangible property. > >Upon appeal, the court dismissed the Claimants' appeal on different >reasoning, without deciding whether domain names are attachable property. > >Thus there is simply no ratio to that effect that you claim that may be >relied upon even in DC, let alone act as persuasive in any other state >or common-law jurisdiction. > > > >On 30/08/17 13:47, parminder wrote: >> Nigel, I quote below Milton Mueller's email of the 24th in full, but >> putting in bold some relevant text, which negates your position below on >> tlds as property or not , parminder >> >> >> 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, ³without deciding,² that ³the ccTLDs the >>plaintiffs >> seek constitute Œproperty¹ under the Foreign Sovereigns >> Immunity Act*/ and, further, that the defendant sovereigns >> have some attachable ownership interest in them.² Thus >> ICANN¹s 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: >> >> >> >> ³the court has the ³authority² to ³prevent >>appropriately the >> impairment of an interest held by a person who is not liable >> in the action giving rise to a judgment² ‹ 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 plaintiffs¹ judgments without impairing those >> interests‹we cannot permit attachment.² >> >> >> >> By ³requiring ICANN to delegate Œ.ir¹ to the >>plaintiffs,² >> the court opined, the plaintiffs ³would bypass ICANN¹s >> process for ccTLD delegation² 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 >> >> >> >> >> >> On Wednesday 30 August 2017 06:03 PM, Nigel Roberts wrote: >>> >>> >>> On 30/08/17 12:44, parminder wrote: >>> >>>> The court took up jurisdiction, and also accepted to treat gtld as >>>> sieze-able property, these are the two most important facts of the >>>>case. >>> >>> >>> The first contention is correct. The second is demonstrably incorrect. >>> >>> This case did not involve either gTLDs or domains registered under >>>them. >>> It involved the ccTLDs of three countries. .IR, .SY and .KP. >>> >>> And the court explicitly stated that domain names (of any kind) were >>> NOT seizable (attachable). >>> >>> A different answer might be given under the law of a different >>> jurisdiction, of course. >>> >>> But those are facts in that case. >>> _______________________________________________ >>> Ws2-jurisdiction mailing list >>> Ws2-jurisdiction@icann.org >>> >>>MailScanner has detected definite fraud in the website at "urldefense.proofpoint.com". Do not trust this website: https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailma <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailma> >>>n_listinfo_ws2-2Djurisdiction&d=DwIF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFO >>>ifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=6eXlg-a2FUnHwDLROR3Pw6_6o6am46qa >>>Q3G8F5cfOXc&s=fXGqZaisry0UForgNEPK0lJ0ZGx1x9aq9H-fRQsI7yg&e= >>> >> >> >> >> _______________________________________________ >> Ws2-jurisdiction mailing list >> Ws2-jurisdiction@icann.org >> >>MailScanner has detected definite fraud in the website at "urldefense.proofpoint.com". Do not trust this website: https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman> >>_listinfo_ws2-2Djurisdiction&d=DwIF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOif >>zm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=6eXlg-a2FUnHwDLROR3Pw6_6o6am46qaQ3G >>8F5cfOXc&s=fXGqZaisry0UForgNEPK0lJ0ZGx1x9aq9H-fRQsI7yg&e= >> >_______________________________________________ >Ws2-jurisdiction mailing list >Ws2-jurisdiction@icann.org >MailScanner has detected definite fraud in the website at "urldefense.proofpoint.com". Do not trust this website: https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_ <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_> >listinfo_ws2-2Djurisdiction&d=DwIF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm >6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=6eXlg-a2FUnHwDLROR3Pw6_6o6am46qaQ3G8F5 >cfOXc&s=fXGqZaisry0UForgNEPK0lJ0ZGx1x9aq9H-fRQsI7yg&e= _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
ICANN is a legal creation. It doesn't exist outside the law. Objections to US jurisprudence seem to all accept that there is another jurisdiction where this reality does not apply. Such a jurisdiction does not exist because paradoxically, if local rule of law were so weak, ICANN would also be weak. Alternative jurisdictions moreover do not support the same degree of free speech and association that is built into US constitutional jurisprudence and they would almost certainly be compelled by politics to influence ICANN to a greater degree. Changing jurisdictions, absent a well-reasoned alternative is a non-starter. Best regards, John Laprise, Ph.D. http://www.linkedin.com/in/jplaprise/ -----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Wednesday, August 30, 2017 3:24 PM To: 'Greg Shatan' <gregshatanipc@gmail.com>; Burr, Becky <Becky.Burr@team.neustar> Cc: ws2-jurisdiction@icann.org Subject: [Ws2-jurisdiction] RES: [EXTERNAL] Re: Issue: Domain seizures by US executive agencies like US customs Dear Greg, Dear All, It is very disturbing to anyone outside the United States that we should rely on US jurisprudence (and the advice you US lawyers are able to provide), however consistent it might be, to hope that the same United States, the only country with the necessary powers to interfere with ICANN's management of the DNS in a meaningful way, will not exercise such powers to the detriment of other countries or in ways that adversely affect the Internet in other countries. If this issue is not properly addressed, I'm afraid Brazil will have to dissociate itself from any recommendation this subgroup provides. Best, Thiago -----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] Em nome de Greg Shatan Enviada em: quarta-feira, 30 de agosto de 2017 13:27 Para: Burr, Becky Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] [EXTERNAL] Re: Issue: Domain seizures by US executive agencies like US customs A general note on "assuming without deciding": "Assuming without deciding" (or "assuming arguendo") is a common legal/judicial method of "leapfrogging" (i.e., bypassing) consideration of a particular issue in order to get to and decide another issue that is further down the road -- generally a more important and consequential issue. This is done when the court really wants to confront and decide the latter issue due to its importance, but sees that it will likely never get there if it decides the first issue. There is no decision, much less any precedential value, attached to the result that is being assumed in this way. If anything, it's an indication that the matter "assumed" would be decided in the opposite fashion, which is why the court made the assumption it did -- to get to the issue it really felt needed deciding. It's essential to understand this in order to properly interpret any opinion that uses the method of "assuming without deciding." In this particular case, it's instructive (and encouraging) that the appeals court decided to do this to get to the bigger policy issue -- as Becky put it, "a court-ordered seizure of a ccTLD would impair the interest of ICANN in a globally acceptable delegation process and possibly also impair the interest of its registrants." As a technical matter, I believe the lower court decision on the first point still stands, since their decision was affirmed on different grounds and the appeals court did not overrule the lower court on this point. I won't get into the nuances of how to use this as precedent and where it would be seen as precedent, but it should be understood that the appeals court did not simply wash away the lower court decision. Greg On Wed, Aug 30, 2017 at 9:30 AM, Burr, Becky via Ws2-jurisdiction <ws2-jurisdiction@icann.org> wrote: The precedent created by the decision is that a court-ordered seizure of a ccTLD would impair the interest of ICANN in a globally acceptable delegation process and possibly also impair the interest of its registrants. That supports and is consistent with the global multi stakeholder model. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 Office: +1.202.533.2932 <tel:%2B1.202.533.2932> Mobile: +1.202.352.6367 <tel:%2B1.202.352.6367> Follow Neustar: LinkedIn / Twitter Reduce your environmental footprint. Print only if necessary. ________________________________________ The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message. On 8/30/17, 9:00 AM, "ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> on behalf of Nigel Roberts" <ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> on behalf of nigel@channelisles.net> wrote: >No, it doesn't. > >The words "without deciding" are highly relevant, here, and you are >overlooking them. > >This is common practice in courts where a decision can be made without >deciding a matter that is alleged. > >The court, in this case, at first instance, DECIDED that the DC >attachment statute does not permit attachment of intangible property. > >Upon appeal, the court dismissed the Claimants' appeal on different >reasoning, without deciding whether domain names are attachable property. > >Thus there is simply no ratio to that effect that you claim that may be >relied upon even in DC, let alone act as persuasive in any other state >or common-law jurisdiction. > > > >On 30/08/17 13:47, parminder wrote: >> Nigel, I quote below Milton Mueller's email of the 24th in full, but >> putting in bold some relevant text, which negates your position below on >> tlds as property or not , parminder >> >> >> 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, ³without deciding,² that ³the ccTLDs the >>plaintiffs >> seek constitute Œproperty¹ under the Foreign Sovereigns >> Immunity Act*/ and, further, that the defendant sovereigns >> have some attachable ownership interest in them.² Thus >> ICANN¹s 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: >> >> >> >> ³the court has the ³authority² to ³prevent >>appropriately the >> impairment of an interest held by a person who is not liable >> in the action giving rise to a judgment² ‹ 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 plaintiffs¹ judgments without impairing those >> interests‹we cannot permit attachment.² >> >> >> >> By ³requiring ICANN to delegate Œ.ir¹ to the >>plaintiffs,² >> the court opined, the plaintiffs ³would bypass ICANN¹s >> process for ccTLD delegation² 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 >> >> >> >> >> >> On Wednesday 30 August 2017 06:03 PM, Nigel Roberts wrote: >>> >>> >>> On 30/08/17 12:44, parminder wrote: >>> >>>> The court took up jurisdiction, and also accepted to treat gtld as >>>> sieze-able property, these are the two most important facts of the >>>>case. >>> >>> >>> The first contention is correct. The second is demonstrably incorrect. >>> >>> This case did not involve either gTLDs or domains registered under >>>them. >>> It involved the ccTLDs of three countries. .IR, .SY and .KP. >>> >>> And the court explicitly stated that domain names (of any kind) were >>> NOT seizable (attachable). >>> >>> A different answer might be given under the law of a different >>> jurisdiction, of course. >>> >>> But those are facts in that case. >>> _______________________________________________ >>> Ws2-jurisdiction mailing list >>> Ws2-jurisdiction@icann.org >>> >>>MailScanner has detected definite fraud in the website at "urldefense.proofpoint.com". Do not trust this website: https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailma <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailma> >>>n_listinfo_ws2-2Djurisdiction&d=DwIF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFO >>>ifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=6eXlg-a2FUnHwDLROR3Pw6_6o6am46qa >>>Q3G8F5cfOXc&s=fXGqZaisry0UForgNEPK0lJ0ZGx1x9aq9H-fRQsI7yg&e= >>> >> >> >> >> _______________________________________________ >> Ws2-jurisdiction mailing list >> Ws2-jurisdiction@icann.org >> >>MailScanner has detected definite fraud in the website at "urldefense.proofpoint.com". Do not trust this website: https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman> >>_listinfo_ws2-2Djurisdiction&d=DwIF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOif >>zm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=6eXlg-a2FUnHwDLROR3Pw6_6o6am46qaQ3G >>8F5cfOXc&s=fXGqZaisry0UForgNEPK0lJ0ZGx1x9aq9H-fRQsI7yg&e= >> >_______________________________________________ >Ws2-jurisdiction mailing list >Ws2-jurisdiction@icann.org >MailScanner has detected definite fraud in the website at "urldefense.proofpoint.com". Do not trust this website: https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_ <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_> >listinfo_ws2-2Djurisdiction&d=DwIF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm >6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=6eXlg-a2FUnHwDLROR3Pw6_6o6am46qaQ3G8F5 >cfOXc&s=fXGqZaisry0UForgNEPK0lJ0ZGx1x9aq9H-fRQsI7yg&e= _______________________________________________ Ws2-jurisdiction mailing list 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 All, We are not expected to defend or offend any specific jurisdiction mechanism nor we are mandated to talk about the degree of free speech and association that is built into US constitutional jurisprudence .We should just limit ourselves to address the difficulties reported. Comments and or/ comparions of constitutions in terms of the degree of free speech and association that is built into that constituions is totally outside of our mandate Cheers Kavouss On Thu, Aug 31, 2017 at 3:57 AM, John Laprise <jlaprise@gmail.com> wrote:
ICANN is a legal creation. It doesn't exist outside the law. Objections to US jurisprudence seem to all accept that there is another jurisdiction where this reality does not apply. Such a jurisdiction does not exist because paradoxically, if local rule of law were so weak, ICANN would also be weak.
Alternative jurisdictions moreover do not support the same degree of free speech and association that is built into US constitutional jurisprudence and they would almost certainly be compelled by politics to influence ICANN to a greater degree. Changing jurisdictions, absent a well-reasoned alternative is a non-starter.
Best regards,
John Laprise, Ph.D.
http://www.linkedin.com/in/jplaprise/
-----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Wednesday, August 30, 2017 3:24 PM To: 'Greg Shatan' <gregshatanipc@gmail.com>; Burr, Becky <Becky.Burr@team.neustar> Cc: ws2-jurisdiction@icann.org Subject: [Ws2-jurisdiction] RES: [EXTERNAL] Re: Issue: Domain seizures by US executive agencies like US customs
Dear Greg, Dear All,
It is very disturbing to anyone outside the United States that we should rely on US jurisprudence (and the advice you US lawyers are able to provide), however consistent it might be, to hope that the same United States, the only country with the necessary powers to interfere with ICANN's management of the DNS in a meaningful way, will not exercise such powers to the detriment of other countries or in ways that adversely affect the Internet in other countries.
If this issue is not properly addressed, I'm afraid Brazil will have to dissociate itself from any recommendation this subgroup provides.
Best,
Thiago
-----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] Em nome de Greg Shatan Enviada em: quarta-feira, 30 de agosto de 2017 13:27 Para: Burr, Becky Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] [EXTERNAL] Re: Issue: Domain seizures by US executive agencies like US customs
A general note on "assuming without deciding":
"Assuming without deciding" (or "assuming arguendo") is a common legal/judicial method of "leapfrogging" (i.e., bypassing) consideration of a particular issue in order to get to and decide another issue that is further down the road -- generally a more important and consequential issue. This is done when the court really wants to confront and decide the latter issue due to its importance, but sees that it will likely never get there if it decides the first issue.
There is no decision, much less any precedential value, attached to the result that is being assumed in this way. If anything, it's an indication that the matter "assumed" would be decided in the opposite fashion, which is why the court made the assumption it did -- to get to the issue it really felt needed deciding. It's essential to understand this in order to properly interpret any opinion that uses the method of "assuming without deciding."
In this particular case, it's instructive (and encouraging) that the appeals court decided to do this to get to the bigger policy issue -- as Becky put it, "a court-ordered seizure of a ccTLD would impair the interest of ICANN in a globally acceptable delegation process and possibly also impair the interest of its registrants."
As a technical matter, I believe the lower court decision on the first point still stands, since their decision was affirmed on different grounds and the appeals court did not overrule the lower court on this point. I won't get into the nuances of how to use this as precedent and where it would be seen as precedent, but it should be understood that the appeals court did not simply wash away the lower court decision.
Greg
On Wed, Aug 30, 2017 at 9:30 AM, Burr, Becky via Ws2-jurisdiction < ws2-jurisdiction@icann.org> wrote:
The precedent created by the decision is that a court-ordered seizure of a ccTLD would impair the interest of ICANN in a globally acceptable delegation process and possibly also impair the interest of its registrants. That supports and is consistent with the global multi stakeholder model.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 Office: +1.202.533.2932 <tel:%2B1.202.533.2932> Mobile: +1.202.352.6367 <tel:%2B1.202.352.6367>
Follow Neustar: LinkedIn / Twitter Reduce your environmental footprint. Print only if necessary.
________________________________________
The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message.
On 8/30/17, 9:00 AM, "ws2-jurisdiction-bounces@icann.org <mailto: ws2-jurisdiction-bounces@icann.org> on behalf of Nigel Roberts" <ws2-jurisdiction-bounces@icann.org <mailto: ws2-jurisdiction-bounces@icann.org> on behalf of nigel@channelisles.net> wrote:
>No, it doesn't. > >The words "without deciding" are highly relevant, here, and you are >overlooking them. > >This is common practice in courts where a decision can be made without >deciding a matter that is alleged. > >The court, in this case, at first instance, DECIDED that the DC >attachment statute does not permit attachment of intangible property. > >Upon appeal, the court dismissed the Claimants' appeal on different >reasoning, without deciding whether domain names are attachable property. > >Thus there is simply no ratio to that effect that you claim that may be >relied upon even in DC, let alone act as persuasive in any other state >or common-law jurisdiction. > > > >On 30/08/17 13:47, parminder wrote: >> Nigel, I quote below Milton Mueller's email of the 24th in full, but >> putting in bold some relevant text, which negates your position below on >> tlds as property or not , parminder >> >> >> 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, ³without deciding,² that ³the ccTLDs the >>plaintiffs >> seek constitute Œproperty¹ under the Foreign Sovereigns >> Immunity Act*/ and, further, that the defendant sovereigns >> have some attachable ownership interest in them.² Thus >> ICANN¹s 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: >> >> >> >> ³the court has the ³authority² to ³prevent >>appropriately the >> impairment of an interest held by a person who is not liable >> in the action giving rise to a judgment² ‹ 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 plaintiffs¹ judgments without impairing those >> interests‹we cannot permit attachment.² >> >> >> >> By ³requiring ICANN to delegate Œ.ir¹ to the >>plaintiffs,² >> the court opined, the plaintiffs ³would bypass ICANN¹s >> process for ccTLD delegation² 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 >> >> >> >> >> >> On Wednesday 30 August 2017 06:03 PM, Nigel Roberts wrote: >>> >>> >>> On 30/08/17 12:44, parminder wrote: >>> >>>> The court took up jurisdiction, and also accepted to treat gtld as >>>> sieze-able property, these are the two most important facts of the >>>>case. >>> >>> >>> The first contention is correct. The second is demonstrably incorrect. >>> >>> This case did not involve either gTLDs or domains registered under >>>them. >>> It involved the ccTLDs of three countries. .IR, .SY and .KP. >>> >>> And the court explicitly stated that domain names (of any kind) were >>> NOT seizable (attachable). >>> >>> A different answer might be given under the law of a different >>> jurisdiction, of course. >>> >>> But those are facts in that case. >>> _______________________________________________ >>> Ws2-jurisdiction mailing list >>> Ws2-jurisdiction@icann.org >>>
>>>MailScanner has detected definite fraud in the website at " urldefense.proofpoint.com". Do not trust this website: https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailma < https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailma> >>>n_listinfo_ws2-2Djurisdiction&d=DwIF-g&c= MOptNlVtIETeDALC_lULrw&r=62cJFO >>>ifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=6eXlg-a2FUnHwDLROR3Pw6_ 6o6am46qa >>>Q3G8F5cfOXc&s=fXGqZaisry0UForgNEPK0lJ0ZGx1x9aq9H-fRQsI7yg&e= >>> >> >> >> >> _______________________________________________ >> Ws2-jurisdiction mailing list >> Ws2-jurisdiction@icann.org >> >>MailScanner has detected definite fraud in the website at " urldefense.proofpoint.com". Do not trust this website: https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman
>>_listinfo_ws2-2Djurisdiction&d=DwIF-g&c= MOptNlVtIETeDALC_lULrw&r=62cJFOif >>zm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=6eXlg-a2FUnHwDLROR3Pw6_ 6o6am46qaQ3G >>8F5cfOXc&s=fXGqZaisry0UForgNEPK0lJ0ZGx1x9aq9H-fRQsI7yg&e= >> >_______________________________________________ >Ws2-jurisdiction mailing list >Ws2-jurisdiction@icann.org >MailScanner has detected definite fraud in the website at " urldefense.proofpoint.com". Do not trust this website: https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_ <https://urldefense.proofpoint.com/v2/url?u=https- 3A__mm.icann.org_mailman_> >listinfo_ws2-2Djurisdiction&d=DwIF-g&c=MOptNlVtIETeDALC_ lULrw&r=62cJFOifzm >6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=6eXlg-a2FUnHwDLROR3Pw6_ 6o6am46qaQ3G8F5 >cfOXc&s=fXGqZaisry0UForgNEPK0lJ0ZGx1x9aq9H-fRQsI7yg&e=
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I partially agree Kavouss. The security and stability of the Internet is something we need to keep in the back of our minds and consider that to the degree that an existing legal environment (or a new one) (jurisdiction) impacts the Internet’s security and stability, it absolutely must be taken into consideration. Best regards, John Laprise, Ph.D. <http://www.linkedin.com/in/jplaprise/> http://www.linkedin.com/in/jplaprise/ From: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] Sent: Thursday, August 31, 2017 1:00 AM To: John Laprise <jlaprise@gmail.com> Cc: Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br>; Greg Shatan <gregshatanipc@gmail.com>; Burr, Becky <Becky.Burr@team.neustar>; ws2-jurisdiction <ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] RES: [EXTERNAL] Re: Issue: Domain seizures by US executive agencies like US customs Dear All, We are not expected to defend or offend any specific jurisdiction mechanism nor we are mandated to talk about the degree of free speech and association that is built into US constitutional jurisprudence .We should just limit ourselves to address the difficulties reported. Comments and or/ comparions of constitutions in terms of the degree of free speech and association that is built into that constituions is totally outside of our mandate Cheers Kavouss On Thu, Aug 31, 2017 at 3:57 AM, John Laprise <jlaprise@gmail.com <mailto:jlaprise@gmail.com> > wrote: ICANN is a legal creation. It doesn't exist outside the law. Objections to US jurisprudence seem to all accept that there is another jurisdiction where this reality does not apply. Such a jurisdiction does not exist because paradoxically, if local rule of law were so weak, ICANN would also be weak. Alternative jurisdictions moreover do not support the same degree of free speech and association that is built into US constitutional jurisprudence and they would almost certainly be compelled by politics to influence ICANN to a greater degree. Changing jurisdictions, absent a well-reasoned alternative is a non-starter. Best regards, John Laprise, Ph.D. http://www.linkedin.com/in/jplaprise/ -----Original Message----- From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> ] On Behalf Of Thiago Braz Jardim Oliveira Sent: Wednesday, August 30, 2017 3:24 PM To: 'Greg Shatan' <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> >; Burr, Becky <Becky.Burr@team.neustar <mailto:Becky.Burr@team.neustar> > Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] RES: [EXTERNAL] Re: Issue: Domain seizures by US executive agencies like US customs Dear Greg, Dear All, It is very disturbing to anyone outside the United States that we should rely on US jurisprudence (and the advice you US lawyers are able to provide), however consistent it might be, to hope that the same United States, the only country with the necessary powers to interfere with ICANN's management of the DNS in a meaningful way, will not exercise such powers to the detriment of other countries or in ways that adversely affect the Internet in other countries. If this issue is not properly addressed, I'm afraid Brazil will have to dissociate itself from any recommendation this subgroup provides. Best, Thiago -----Mensagem original----- De: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> ] Em nome de Greg Shatan Enviada em: quarta-feira, 30 de agosto de 2017 13:27 Para: Burr, Becky Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] [EXTERNAL] Re: Issue: Domain seizures by US executive agencies like US customs A general note on "assuming without deciding": "Assuming without deciding" (or "assuming arguendo") is a common legal/judicial method of "leapfrogging" (i.e., bypassing) consideration of a particular issue in order to get to and decide another issue that is further down the road -- generally a more important and consequential issue. This is done when the court really wants to confront and decide the latter issue due to its importance, but sees that it will likely never get there if it decides the first issue. There is no decision, much less any precedential value, attached to the result that is being assumed in this way. If anything, it's an indication that the matter "assumed" would be decided in the opposite fashion, which is why the court made the assumption it did -- to get to the issue it really felt needed deciding. It's essential to understand this in order to properly interpret any opinion that uses the method of "assuming without deciding." In this particular case, it's instructive (and encouraging) that the appeals court decided to do this to get to the bigger policy issue -- as Becky put it, "a court-ordered seizure of a ccTLD would impair the interest of ICANN in a globally acceptable delegation process and possibly also impair the interest of its registrants." As a technical matter, I believe the lower court decision on the first point still stands, since their decision was affirmed on different grounds and the appeals court did not overrule the lower court on this point. I won't get into the nuances of how to use this as precedent and where it would be seen as precedent, but it should be understood that the appeals court did not simply wash away the lower court decision. Greg On Wed, Aug 30, 2017 at 9:30 AM, Burr, Becky via Ws2-jurisdiction <ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> > wrote: The precedent created by the decision is that a court-ordered seizure of a ccTLD would impair the interest of ICANN in a globally acceptable delegation process and possibly also impair the interest of its registrants. That supports and is consistent with the global multi stakeholder model. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW DC 20006 Office: +1.202.533.2932 <tel:%2B1.202.533.2932> <tel:%2B1.202.533.2932> Mobile: +1.202.352.6367 <tel:%2B1.202.352.6367> <tel:%2B1.202.352.6367> Follow Neustar: LinkedIn / Twitter Reduce your environmental footprint. Print only if necessary. ________________________________________ The information contained in this email message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this email message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message. On 8/30/17, 9:00 AM, "ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> <mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> > on behalf of Nigel Roberts" <ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> <mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> > on behalf of nigel@channelisles.net <mailto:nigel@channelisles.net> > wrote: >No, it doesn't. > >The words "without deciding" are highly relevant, here, and you are >overlooking them. > >This is common practice in courts where a decision can be made without >deciding a matter that is alleged. > >The court, in this case, at first instance, DECIDED that the DC >attachment statute does not permit attachment of intangible property. > >Upon appeal, the court dismissed the Claimants' appeal on different >reasoning, without deciding whether domain names are attachable property. > >Thus there is simply no ratio to that effect that you claim that may be >relied upon even in DC, let alone act as persuasive in any other state >or common-law jurisdiction. > > > >On 30/08/17 13:47, parminder wrote: >> Nigel, I quote below Milton Mueller's email of the 24th in full, but >> putting in bold some relevant text, which negates your position below on >> tlds as property or not , parminder >> >> >> 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, ³without deciding,² that ³the ccTLDs the >>plaintiffs >> seek constitute ÂŒproperty¹ under the Foreign Sovereigns >> Immunity Act*/ and, further, that the defendant sovereigns >> have some attachable ownership interest in them.² Thus >> ICANN¹s 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: >> >> >> >> ³the court has the ³authority² to ³prevent >>appropriately the >> impairment of an interest held by a person who is not liable >> in the action giving rise to a judgment² ‹ 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 plaintiffs¹ judgments without impairing those >> interests‹we cannot permit attachment.² >> >> >> >> By ³requiring ICANN to delegate ÂŒ.ir¹ to the >>plaintiffs,² >> the court opined, the plaintiffs ³would bypass ICANN¹s >> process for ccTLD delegation² 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 >> >> >> >> >> >> On Wednesday 30 August 2017 06:03 PM, Nigel Roberts wrote: >>> >>> >>> On 30/08/17 12:44, parminder wrote: >>> >>>> The court took up jurisdiction, and also accepted to treat gtld as >>>> sieze-able property, these are the two most important facts of the >>>>case. >>> >>> >>> The first contention is correct. The second is demonstrably incorrect. >>> >>> This case did not involve either gTLDs or domains registered under >>>them. >>> It involved the ccTLDs of three countries. .IR, .SY and .KP. >>> >>> And the court explicitly stated that domain names (of any kind) were >>> NOT seizable (attachable). >>> >>> A different answer might be given under the law of a different >>> jurisdiction, of course. >>> >>> But those are facts in that case. >>> _______________________________________________ >>> Ws2-jurisdiction mailing list >>> Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> >>> >>>MailScanner has detected definite fraud in the website at "urldefense.proofpoint.com <http://urldefense.proofpoint.com> ". Do not trust this website: https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailma <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailma> >>>n_listinfo_ws2-2Djurisdiction&d=DwIF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFO >>>ifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=6eXlg-a2FUnHwDLROR3Pw6_6o6am46qa >>>Q3G8F5cfOXc&s=fXGqZaisry0UForgNEPK0lJ0ZGx1x9aq9H-fRQsI7yg&e= >>> >> >> >> >> _______________________________________________ >> Ws2-jurisdiction mailing list >> Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> >> >>MailScanner has detected definite fraud in the website at "urldefense.proofpoint.com <http://urldefense.proofpoint.com> ". Do not trust this website: https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman> >>_listinfo_ws2-2Djurisdiction&d=DwIF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOif >>zm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=6eXlg-a2FUnHwDLROR3Pw6_6o6am46qaQ3G >>8F5cfOXc&s=fXGqZaisry0UForgNEPK0lJ0ZGx1x9aq9H-fRQsI7yg&e= >> >_______________________________________________ >Ws2-jurisdiction mailing list >Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> >MailScanner has detected definite fraud in the website at "urldefense.proofpoint.com <http://urldefense.proofpoint.com> ". Do not trust this website: https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_ <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_> >listinfo_ws2-2Djurisdiction&d=DwIF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm >6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=6eXlg-a2FUnHwDLROR3Pw6_6o6am46qaQ3G8F5 >cfOXc&s=fXGqZaisry0UForgNEPK0lJ0ZGx1x9aq9H-fRQsI7yg&e= _______________________________________________ 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
participants (9)
-
Burr, Becky -
Greg Shatan -
John Laprise -
Kavouss Arasteh -
Nigel Roberts -
parminder -
Paul Rosenzweig -
Tarek Kamel -
Thiago Braz Jardim Oliveira