Domain names 'located' within the US
Dear Greg, dear all, In our last call, you asked me to provide citations for cases where US courts assumed jurisdiction over domain names because, as I said then, of ICANN's location in California. I believe I suggested that there are court decisions which concluded that "domain names" are "property" located within the US precisely because of ICANN's location. I agree with you that we'll have to come back to this in more detail, so let me just drop in here one case reference that, to my knowledge, does not appear in the list of litigation under review by our subgroup. Perhaps we should include it there. It's the NBC Universal, INC. et al., v. NBCUNIVERSAL.com (378 F.Supp.2d 715), from 2005. It's an interesting case and I think you are already familiar with it, since you pretty much described parts of it when you commented upon the point I was raising. As you hinted yourself, the case was based on an in rem action, i.e. an action over a 'thing', and the 'thing' was the domain name. And as you also said, the decision by the court to assume jurisdiction in that case was prompted not so much by the location of ICANN in the US, but rather by the registry's location in the US. The dispute was over a .COM domain, for which the registry is VeriSign. So it was on the basis of VeriSign's location in the US that the court assumed jurisdiction over an internet domain name as a 'thing'. Again, this was in rem jurisdiction, jurisdiction over a 'thing' if you will, and this type of jurisdiction is exercised over 'things' located in the territory of the forum, so that the domain name was considered to be within the US because the registry was a US company. Now, unless one denounces dominance by US companies as registries of gTLDs (which, to be fair, I'm not sure is the case, even though it might be), the fact that US courts can assume jurisdiction over a domain name because of the registry's location should not bother many. But, really, should it not? In this NBCUNIVERSAL.com case, not only the individual registrant was from Korea, but also the registrar was from Korea. Yet because the dispute was about a .COM domain name, for which Verisign is the registry, US courts assumed that the 'thing' (i.e. the domain name) was within and subject to US jurisdiction. A last point I want to make is this, and I think it is more disconcerting than the previous one. The basis on which US courts assumed jurisdiction in this NBCUNIVERSAL.com case was the Anticybersquatting Consumer Protection Act ("ACPA"), 15 U.S.C. § 1125(d). In there, 15 U.S.C. § 1125(d)(2)(A) reads as follows: "The owner of a mark may file an in rem civil action against a domain name in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located...". In the NBCUNIVERSAL.com case, it was the location of the registry that gave jurisdiction to US courts under that provision. But the provision in question also grants jurisdiction to US courts on the basis of the location of any "other domain name authority that registered or assigned the domain name". As I understand it (and I may be able to point to a case that supports that), ICANN qualifies as such a domain name authority because assigning names and numbers is what it does. So according to US laws, and we are here only discussing this one particular piece of legislation, there is a real possibility that US courts assume and exercise jurisdiction over domain names, and over any domain name, TLDs and ccTLDs, because ICANN is located within US territory, as far as claims under the ACPA are concerned. I'm sure there are plenty more cases like this, and many others that deserve our attention, and we will not have discharged our mandate unless we examine and assess them all. Best, Thiago Jardim Thiago Braz Jardim Oliveira Divisão da Sociedade da Informação Ministério das Relações Exteriores +55 61 2030 6389
Thiago, Just to clarify, the Subgroup task is the review of ICANN's litigation cases. I'm not familiar with the case you cite. I am familiar with ACPA, since that's been around since 1999 and in rem jurisdiction is a basic feature of the law. In rem jurisdiction dictates that the domain name is located in the United States; the Court had no power to assume anything. In any event, while there are many fascinating topics under the general heading "domain names and jurisdiction," they don't all fall within our mandate. Even the broadest attempt to define our mandate has not embraced this topic. This is appropriate since ICANN does not register or assign second level domain names. As such, I don't believe there is any real possibility that US courts would find in rem jurisdiction over a second level domain name issued by a registry located outside the US. I'm not aware of any case where plaintiffs have asserted that the courts have in rem jurisdiction over a TLD and since ICANN does not, in fact, register or assign TLDs, this seems perfectly appropriate. As the *Weinstein* case shows, an attempt under other laws to assert jurisdiction over a TLD based on ICANN's location failed. Plaintiffs are always entitled to come up with novel legal theories, but there, as here, the mere existence of a theory does not give it credibility. There are certainly other ACPA cases (as noted, the law has been around since 1999). Thankfully, this has not been defined as part of our mandate even in the most far-reaching interpretation offered in the Subgroup. Greg On Fri, May 26, 2017 at 5:25 PM, Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> wrote:
Dear Greg, dear all,
In our last call, you asked me to provide citations for cases where US courts assumed jurisdiction over domain names because, as I said then, of ICANN's location in California. I believe I suggested that there are court decisions which concluded that "domain names" are "property" located within the US precisely because of ICANN's location.
I agree with you that we'll have to come back to this in more detail, so let me just drop in here one case reference that, to my knowledge, does not appear in the list of litigation under review by our subgroup. Perhaps we should include it there. It's the NBC Universal, INC. et al., v. NBCUNIVERSAL.com (378 F.Supp.2d 715), from 2005. It's an interesting case and I think you are already familiar with it, since you pretty much described parts of it when you commented upon the point I was raising.
As you hinted yourself, the case was based on an in rem action, i.e. an action over a 'thing', and the 'thing' was the domain name. And as you also said, the decision by the court to assume jurisdiction in that case was prompted not so much by the location of ICANN in the US, but rather by the registry's location in the US. The dispute was over a .COM domain, for which the registry is VeriSign. So it was on the basis of VeriSign's location in the US that the court assumed jurisdiction over an internet domain name as a 'thing'. Again, this was in rem jurisdiction, jurisdiction over a 'thing' if you will, and this type of jurisdiction is exercised over 'things' located in the territory of the forum, so that the domain name was considered to be within the US because the registry was a US company.
Now, unless one denounces dominance by US companies as registries of gTLDs (which, to be fair, I'm not sure is the case, even though it might be), the fact that US courts can assume jurisdiction over a domain name because of the registry's location should not bother many. But, really, should it not? In this NBCUNIVERSAL.com case, not only the individual registrant was from Korea, but also the registrar was from Korea. Yet because the dispute was about a .COM domain name, for which Verisign is the registry, US courts assumed that the 'thing' (i.e. the domain name) was within and subject to US jurisdiction.
A last point I want to make is this, and I think it is more disconcerting than the previous one. The basis on which US courts assumed jurisdiction in this NBCUNIVERSAL.com case was the Anticybersquatting Consumer Protection Act ("ACPA"), 15 U.S.C. § 1125(d). In there, 15 U.S.C. § 1125(d)(2)(A) reads as follows: "The owner of a mark may file an in rem civil action against a domain name in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located...". In the NBCUNIVERSAL.com case, it was the location of the registry that gave jurisdiction to US courts under that provision. But the provision in question also grants jurisdiction to US courts on the basis of the location of any "other domain name authority that registered or assigned the domain name". As I understand it (and I may be able to point to a case that supports that), ICANN qualifies as such a domain name authority because assigning names and numbers is what it does. So according to US laws, and we are here only discussing this one particular piece of legislation, there is a real possibility that US courts assume and exercise jurisdiction over domain names, and over any domain name, TLDs and ccTLDs, because ICANN is located within US territory, as far as claims under the ACPA are concerned.
I'm sure there are plenty more cases like this, and many others that deserve our attention, and we will not have discharged our mandate unless we examine and assess them all.
Best,
Thiago Jardim
Thiago Braz Jardim Oliveira
Divisão da Sociedade da Informação
Ministério das Relações Exteriores
+55 61 2030 6389 <+55%2061%202030-6389>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Gregory, Just to clarify, one task of the Subgroup was chosen to be to review ICANN's litigation cases. But the Subgroup mandate is to assess the impact of "jurisdiction-related questions" on the operation of ICANN policies and functions. To the extent the location of ICANN has an impact upon the ability of domestic courts to exercise jurisdiction over domain names and other features of the Domain Name System, whose management is one of ICANN's functions, it is up for the Subgroup to make one of its tasks to examine those cases (and any other evidence) that shed light on what that impact is. The ACPA litigation I referred to is relevant as evidence that the location of ICANN has the potential of leading US courts to exercise jurisdiction over domain names as property located in the US. It is not just a coincidence that in one litigation directly involving ICANN as a defendant party (ITOH v ICANN), the parties discussed and the court examined what lessons could be drawn from ACPA litigation. Indeed ICANN pointed to this very NBCUniversal case, hoping to support the argument that the location of a country code top level domain (ccTLD) was at the registry. But the Superior Court of California noted that, according to the ACPA, location can be at where any domain name authority is located, which includes ICANN. You say that "in rem jurisdiction dictates that the domain name is located in the United States". But in rem jurisdiction (as a basic feature of the law, as you say) can only be exercised over property located in the territory of the forum. It's because the property in question is situated within the territory of one State, and is subject to the territorial sovereignty of that State, that local courts exercise in rem jurisdiction over that property, and not the other way around. And in Weinstein, an attempt to attach Iran's ccTLD failed because the court exercised a discretion, i.e. to use its authority to protect third-party interests, and not because ccTLDs were not property in the US. In fact, not only the Appeals Court did not deny that ccTLD was property, or property susceptible of attachment, or property located in the US. But also it affirmed that there would be no execution immunity in respect of Iran's ccTLD, because the Foreign State Immunity Act (FSIA) permitted attachment of property in that particular case. Now, property to which the FSIA is applicable is property situated in US territory, so that Weinstein may even support the argument that ccTLDs are actually treated as property located in the US because of ICANN's location. Again, in Weinstein, the US Court of Appeals denied a request to force re-delegation of Iran's ccTLD not because it though it couldn't do so, but because it thought it shouldn't. For that particular case, and that particular case only, US courts thought it wise not to interfere with ICANN's functions. Thiago -----Mensagem original----- De: Greg Shatan [mailto:gregshatanipc@gmail.com] Enviada em: segunda-feira, 29 de maio de 2017 20:25 Para: Thiago Braz Jardim Oliveira Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] Domain names 'located' within the US Thiago, Just to clarify, the Subgroup task is the review of ICANN's litigation cases. I'm not familiar with the case you cite. I am familiar with ACPA, since that's been around since 1999 and in rem jurisdiction is a basic feature of the law. In rem jurisdiction dictates that the domain name is located in the United States; the Court had no power to assume anything. In any event, while there are many fascinating topics under the general heading "domain names and jurisdiction," they don't all fall within our mandate. Even the broadest attempt to define our mandate has not embraced this topic. This is appropriate since ICANN does not register or assign second level domain names. As such, I don't believe there is any real possibility that US courts would find in rem jurisdiction over a second level domain name issued by a registry located outside the US. I'm not aware of any case where plaintiffs have asserted that the courts have in rem jurisdiction over a TLD and since ICANN does not, in fact, register or assign TLDs, this seems perfectly appropriate. As the Weinstein case shows, an attempt under other laws to assert jurisdiction over a TLD based on ICANN's location failed. Plaintiffs are always entitled to come up with novel legal theories, but there, as here, the mere existence of a theory does not give it credibility. There are certainly other ACPA cases (as noted, the law has been around since 1999). Thankfully, this has not been defined as part of our mandate even in the most far-reaching interpretation offered in the Subgroup. Greg On Fri, May 26, 2017 at 5:25 PM, Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>> wrote: Dear Greg, dear all, In our last call, you asked me to provide citations for cases where US courts assumed jurisdiction over domain names because, as I said then, of ICANN's location in California. I believe I suggested that there are court decisions which concluded that "domain names" are "property" located within the US precisely because of ICANN's location. I agree with you that we'll have to come back to this in more detail, so let me just drop in here one case reference that, to my knowledge, does not appear in the list of litigation under review by our subgroup. Perhaps we should include it there. It's the NBC Universal, INC. et al., v. NBCUNIVERSAL.com (378 F.Supp.2d 715), from 2005. It's an interesting case and I think you are already familiar with it, since you pretty much described parts of it when you commented upon the point I was raising. As you hinted yourself, the case was based on an in rem action, i.e. an action over a 'thing', and the 'thing' was the domain name. And as you also said, the decision by the court to assume jurisdiction in that case was prompted not so much by the location of ICANN in the US, but rather by the registry's location in the US. The dispute was over a .COM domain, for which the registry is VeriSign. So it was on the basis of VeriSign's location in the US that the court assumed jurisdiction over an internet domain name as a 'thing'. Again, this was in rem jurisdiction, jurisdiction over a 'thing' if you will, and this type of jurisdiction is exercised over 'things' located in the territory of the forum, so that the domain name was considered to be within the US because the registry was a US company. Now, unless one denounces dominance by US companies as registries of gTLDs (which, to be fair, I'm not sure is the case, even though it might be), the fact that US courts can assume jurisdiction over a domain name because of the registry's location should not bother many. But, really, should it not? In this NBCUNIVERSAL.com case, not only the individual registrant was from Korea, but also the registrar was from Korea. Yet because the dispute was about a .COM domain name, for which Verisign is the registry, US courts assumed that the 'thing' (i.e. the domain name) was within and subject to US jurisdiction. A last point I want to make is this, and I think it is more disconcerting than the previous one. The basis on which US courts assumed jurisdiction in this NBCUNIVERSAL.com case was the Anticybersquatting Consumer Protection Act ("ACPA"), 15 U.S.C. § 1125(d). In there, 15 U.S.C. § 1125(d)(2)(A) reads as follows: "The owner of a mark may file an in rem civil action against a domain name in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located...". In the NBCUNIVERSAL.com case, it was the location of the registry that gave jurisdiction to US courts under that provision. But the provision in question also grants jurisdiction to US courts on the basis of the location of any "other domain name authority that registered or assigned the domain name". As I understand it (and I may be able to point to a case that supports that), ICANN qualifies as such a domain name authority because assigning names and numbers is what it does. So according to US laws, and we are here only discussing this one particular piece of legislation, there is a real possibility that US courts assume and exercise jurisdiction over domain names, and over any domain name, TLDs and ccTLDs, because ICANN is located within US territory, as far as claims under the ACPA are concerned. I'm sure there are plenty more cases like this, and many others that deserve our attention, and we will not have discharged our mandate unless we examine and assess them all. Best, Thiago Jardim Thiago Braz Jardim Oliveira Divisão da Sociedade da Informação Ministério das Relações Exteriores +55 61 2030 6389 <tel:+55%2061%202030-6389> _______________________________________________ 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>
Dear Greg Pl see some comments below. On Tuesday 30 May 2017 04:54 AM, Greg Shatan wrote:
Thiago,
Just to clarify, the Subgroup task is the review of ICANN's litigation cases.
I'm not familiar with the case you cite. I am familiar with ACPA, since that's been around since 1999 and in rem jurisdiction is a basic feature of the law. In rem jurisdiction dictates that the domain name is located in the United States; the Court had no power to assume anything.
In any event, while there are many fascinating topics under the general heading "domain names and jurisdiction," they don't all fall within our mandate. Even the broadest attempt to define our mandate has not embraced this topic.
I did not follow, what topic exactly you mean does not fall in the groups mandate. Request a clarification. Thiago's email describes cases which clearly show that US public policies, law and courts have a superior and somewhat exclusive right to direct ICANN's actions, over that or any other jurisdiction (representing the corresponding country's sovereign will). This goes to the heart of the jurisdiction question that is the mandate of this group. This is unjust, and not acceptable, and therefore this group must look at options that are more just to everyone.
This is appropriate since ICANN does not register or assign second level domain names.
The quote from the ACPA in Thiago's email is clear that courts can leverage a higher level "owner" being a higher level domain name body, from a registrar to a registry to ICANN itself, at the apex of the domain name system. It is like a court may direct an occupier of a rented property with regard to some action, but may as well choose to direct the higher level "owner'', the property owner who rented it. (There could be other ownership links, a resident owners group and so on). The point is, ICANN at the apex of the DNS, or the ownership chain for domain names, can be forced through in rem jurisdiction by a US court bec ICANN is in the US, wherever the registry or the registrar may be.
As such, I don't believe there is any real possibility that US courts would find in rem jurisdiction over a second level domain name issued by a registry located outside the US.
As above, I do not accept this assertion.
I'm not aware of any case where plaintiffs have asserted that the courts have in rem jurisdiction over a TLD and since ICANN does not, in fact, register or assign TLDs,
Not sure what you mean? Who else assigns TLDs if not the ICANN? I am missing something here I think.
this seems perfectly appropriate. As the _Weinstein_ case shows, an attempt under other laws to assert jurisdiction over a TLD based on ICANN's location failed. Plaintiffs are always entitled to come up with novel legal theories, but there, as here, the mere existence of a theory does not give it credibility.
There are certainly other ACPA cases (as noted, the law has been around since 1999). Thankfully, this has not been defined as part of our mandate even in the most far-reaching interpretation offered in the Subgroup.
Again, not sure what is that you are saying is not in the mandate of this group. Will be glad for a clarification. Thanks, parminder
Greg
On Fri, May 26, 2017 at 5:25 PM, Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br>> wrote:
Dear Greg, dear all,
In our last call, you asked me to provide citations for cases where US courts assumed jurisdiction over domain names because, as I said then, of ICANN's location in California. I believe I suggested that there are court decisions which concluded that "domain names" are "property" located within the US precisely because of ICANN's location.
I agree with you that we'll have to come back to this in more detail, so let me just drop in here one case reference that, to my knowledge, does not appear in the list of litigation under review by our subgroup. Perhaps we should include it there. It's the NBC Universal, INC. et al., v. NBCUNIVERSAL.com (378 F.Supp.2d 715), from 2005. It's an interesting case and I think you are already familiar with it, since you pretty much described parts of it when you commented upon the point I was raising.
As you hinted yourself, the case was based on an in rem action, i.e. an action over a 'thing', and the 'thing' was the domain name. And as you also said, the decision by the court to assume jurisdiction in that case was prompted not so much by the location of ICANN in the US, but rather by the registry's location in the US. The dispute was over a .COM domain, for which the registry is VeriSign. So it was on the basis of VeriSign's location in the US that the court assumed jurisdiction over an internet domain name as a 'thing'. Again, this was in rem jurisdiction, jurisdiction over a 'thing' if you will, and this type of jurisdiction is exercised over 'things' located in the territory of the forum, so that the domain name was considered to be within the US because the registry was a US company.
Now, unless one denounces dominance by US companies as registries of gTLDs (which, to be fair, I'm not sure is the case, even though it might be), the fact that US courts can assume jurisdiction over a domain name because of the registry's location should not bother many. But, really, should it not? In this NBCUNIVERSAL.com case, not only the individual registrant was from Korea, but also the registrar was from Korea. Yet because the dispute was about a .COM domain name, for which Verisign is the registry, US courts assumed that the 'thing' (i.e. the domain name) was within and subject to US jurisdiction.
A last point I want to make is this, and I think it is more disconcerting than the previous one. The basis on which US courts assumed jurisdiction in this NBCUNIVERSAL.com case was the Anticybersquatting Consumer Protection Act ("ACPA"), 15 U.S.C. § 1125(d). In there, 15 U.S.C. § 1125(d)(2)(A) reads as follows: "The owner of a mark may file an in rem civil action against a domain name in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located...". In the NBCUNIVERSAL.com case, it was the location of the registry that gave jurisdiction to US courts under that provision. But the provision in question also grants jurisdiction to US courts on the basis of the location of any "other domain name authority that registered or assigned the domain name". As I understand it (and I may be able to point to a case that supports that), ICANN qualifies as such a domain name authority because assigning names and numbers is what it does. So according to US laws, and we are here only discussing this one particular piece of legislation, there is a real possibility that US courts assume and exercise jurisdiction over domain names, and over any domain name, TLDs and ccTLDs, because ICANN is located within US territory, as far as claims under the ACPA are concerned.
I'm sure there are plenty more cases like this, and many others that deserve our attention, and we will not have discharged our mandate unless we examine and assess them all.
Best,
Thiago Jardim
Thiago Braz Jardim Oliveira
Divisão da Sociedade da Informação
Ministério das Relações Exteriores
+55 61 2030 6389 <tel:+55%2061%202030-6389>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Parminder I feel this continued flagellation of deceased members of the genus Equus is getting somewhat repetitive. But I'll give this another shot, for the sheer fun of it. The courts of ANY other country in which ICANN would or should be iincorporated would have exactly the same superior and exclusive rights in theory. It may be so (that just as an example) Swiss law, and jurisdiction might have been more acceptable as ICANN's seat to many countries which are antipathetic to the United States. I fact I argued for Switzerland during the IFWP, so you can be assured I have been conscious of this issue for over 20 years. But complaining that ICANN is subject to US courts is just a "two legs bad, four legs good" comparison. The essential factors are a mature jurisdiction in a country that runs on the Rule of Law. As you know, we are where we are because of a number of historical factors, including where Saint Jon lived and worked, and (in my mildly cynical view) clever manoeuvres by certain key players back in 1998. (Hi Becky!). But ICANN would have to have been incorporated SOMEWHERE. There is no way round this, unless you set your face (as I get the impression you may have done) against the whole concept of multistakeholder management of internet names and numbers, and propose that ICANN should exist as a multilateral organisation, such as the United Nations. Those of use who have spent several decades advocating for multistakeholderism would, respectfully, hold a different view. Nigel
Thiago's email describes cases which clearly show that US public policies, law and courts have a superior and somewhat exclusive right to direct ICANN's actions, over that or any other jurisdiction (representing the corresponding country's sovereign will). This goes to the heart of the jurisdiction question that is the mandate of this group. This is unjust, and not acceptable, and therefore this group must look at options that are more just to everyone.
I agree with Nigel. I have no particular desire to see a move of ICANN outside of the US speed ICANN's demise. Best, Paul -----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Sunday, June 04, 2017 1:57 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Domain names 'located' within the US Parminder I feel this continued flagellation of deceased members of the genus Equus is getting somewhat repetitive. But I'll give this another shot, for the sheer fun of it. The courts of ANY other country in which ICANN would or should be iincorporated would have exactly the same superior and exclusive rights in theory. It may be so (that just as an example) Swiss law, and jurisdiction might have been more acceptable as ICANN's seat to many countries which are antipathetic to the United States. I fact I argued for Switzerland during the IFWP, so you can be assured I have been conscious of this issue for over 20 years. But complaining that ICANN is subject to US courts is just a "two legs bad, four legs good" comparison. The essential factors are a mature jurisdiction in a country that runs on the Rule of Law. As you know, we are where we are because of a number of historical factors, including where Saint Jon lived and worked, and (in my mildly cynical view) clever manoeuvres by certain key players back in 1998. (Hi Becky!). But ICANN would have to have been incorporated SOMEWHERE. There is no way round this, unless you set your face (as I get the impression you may have done) against the whole concept of multistakeholder management of internet names and numbers, and propose that ICANN should exist as a multilateral organisation, such as the United Nations. Those of use who have spent several decades advocating for multistakeholderism would, respectfully, hold a different view. Nigel
Thiago's email describes cases which clearly show that US public policies, law and courts have a superior and somewhat exclusive right to direct ICANN's actions, over that or any other jurisdiction (representing the corresponding country's sovereign will). This goes to the heart of the jurisdiction question that is the mandate of this group. This is unjust, and not acceptable, and therefore this group must look at options that are more just to everyone.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction ________________________________ The contents of this message may be privileged and confidential. If this message has been received in error, please delete it without reading it. Your receipt of this message is not intended to waive any applicable privilege. Please do not disseminate this message without the permission of the author. Any tax advice contained in this email was not intended to be used, and cannot be used, by you (or any other taxpayer) to avoid penalties under applicable tax laws and regulations.
Chiming in to agree, ICANN will always be subject in some degree to the laws of its nation of incorporation more than others, but that is irrelevant unless those laws interfere with its technical and policymaking functions in a way that is consistently prejudicial to other nations and the community members who reside in them. The GAC is well equipped to speak out for those nations should such a situation ever arise. As Nigel noted, the only way to avoid that would be to convert ICANN from a multistakeholder organization led by the private sector, civil society and academia to a multilateral one controlled by governments. That "solution" is anathema to the overwhelming majority of the ICANN community. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of icannlists Sent: Wednesday, June 07, 2017 4:13 PM To: Nigel Roberts; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Domain names 'located' within the US I agree with Nigel. I have no particular desire to see a move of ICANN outside of the US speed ICANN's demise. Best, Paul -----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Sunday, June 04, 2017 1:57 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Domain names 'located' within the US Parminder I feel this continued flagellation of deceased members of the genus Equus is getting somewhat repetitive. But I'll give this another shot, for the sheer fun of it. The courts of ANY other country in which ICANN would or should be iincorporated would have exactly the same superior and exclusive rights in theory. It may be so (that just as an example) Swiss law, and jurisdiction might have been more acceptable as ICANN's seat to many countries which are antipathetic to the United States. I fact I argued for Switzerland during the IFWP, so you can be assured I have been conscious of this issue for over 20 years. But complaining that ICANN is subject to US courts is just a "two legs bad, four legs good" comparison. The essential factors are a mature jurisdiction in a country that runs on the Rule of Law. As you know, we are where we are because of a number of historical factors, including where Saint Jon lived and worked, and (in my mildly cynical view) clever manoeuvres by certain key players back in 1998. (Hi Becky!). But ICANN would have to have been incorporated SOMEWHERE. There is no way round this, unless you set your face (as I get the impression you may have done) against the whole concept of multistakeholder management of internet names and numbers, and propose that ICANN should exist as a multilateral organisation, such as the United Nations. Those of use who have spent several decades advocating for multistakeholderism would, respectfully, hold a different view. Nigel
Thiago's email describes cases which clearly show that US public policies, law and courts have a superior and somewhat exclusive right to direct ICANN's actions, over that or any other jurisdiction (representing the corresponding country's sovereign will). This goes to the heart of the jurisdiction question that is the mandate of this group. This is unjust, and not acceptable, and therefore this group must look at options that are more just to everyone.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction ________________________________ The contents of this message may be privileged and confidential. If this message has been received in error, please delete it without reading it. Your receipt of this message is not intended to waive any applicable privilege. Please do not disseminate this message without the permission of the author. Any tax advice contained in this email was not intended to be used, and cannot be used, by you (or any other taxpayer) to avoid penalties under applicable tax laws and regulations. _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Agreed. As a legal entity, ICANN requires a binding set of laws to exist within. Fish can argue about the quality of the water, but they need it all the same. Best regards, John Laprise, Ph.D. Principal Consultant http://www.linkedin.com/in/jplaprise/ -----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Phil Corwin Sent: Wednesday, June 7, 2017 4:36 PM To: icannlists <icannlists@winston.com>; Nigel Roberts <nigel@channelisles.net>; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Domain names 'located' within the US Chiming in to agree, ICANN will always be subject in some degree to the laws of its nation of incorporation more than others, but that is irrelevant unless those laws interfere with its technical and policymaking functions in a way that is consistently prejudicial to other nations and the community members who reside in them. The GAC is well equipped to speak out for those nations should such a situation ever arise. As Nigel noted, the only way to avoid that would be to convert ICANN from a multistakeholder organization led by the private sector, civil society and academia to a multilateral one controlled by governments. That "solution" is anathema to the overwhelming majority of the ICANN community. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of icannlists Sent: Wednesday, June 07, 2017 4:13 PM To: Nigel Roberts; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Domain names 'located' within the US I agree with Nigel. I have no particular desire to see a move of ICANN outside of the US speed ICANN's demise. Best, Paul -----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Sunday, June 04, 2017 1:57 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] Domain names 'located' within the US Parminder I feel this continued flagellation of deceased members of the genus Equus is getting somewhat repetitive. But I'll give this another shot, for the sheer fun of it. The courts of ANY other country in which ICANN would or should be iincorporated would have exactly the same superior and exclusive rights in theory. It may be so (that just as an example) Swiss law, and jurisdiction might have been more acceptable as ICANN's seat to many countries which are antipathetic to the United States. I fact I argued for Switzerland during the IFWP, so you can be assured I have been conscious of this issue for over 20 years. But complaining that ICANN is subject to US courts is just a "two legs bad, four legs good" comparison. The essential factors are a mature jurisdiction in a country that runs on the Rule of Law. As you know, we are where we are because of a number of historical factors, including where Saint Jon lived and worked, and (in my mildly cynical view) clever manoeuvres by certain key players back in 1998. (Hi Becky!). But ICANN would have to have been incorporated SOMEWHERE. There is no way round this, unless you set your face (as I get the impression you may have done) against the whole concept of multistakeholder management of internet names and numbers, and propose that ICANN should exist as a multilateral organisation, such as the United Nations. Those of use who have spent several decades advocating for multistakeholderism would, respectfully, hold a different view. Nigel
Thiago's email describes cases which clearly show that US public policies, law and courts have a superior and somewhat exclusive right to direct ICANN's actions, over that or any other jurisdiction (representing the corresponding country's sovereign will). This goes to the heart of the jurisdiction question that is the mandate of this group. This is unjust, and not acceptable, and therefore this group must look at options that are more just to everyone.
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction ________________________________ The contents of this message may be privileged and confidential. If this message has been received in error, please delete it without reading it. Your receipt of this message is not intended to waive any applicable privilege. Please do not disseminate this message without the permission of the author. Any tax advice contained in this email was not intended to be used, and cannot be used, by you (or any other taxpayer) to avoid penalties under applicable tax laws and regulations. _______________________________________________ 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
participants (7)
-
Greg Shatan -
icannlists -
John Laprise -
Nigel Roberts -
parminder -
Phil Corwin -
Thiago Braz Jardim Oliveira