ICANN’s .IR Response to writs of attachment issued by U.S. Courts opens legal can of worms

By Philip S. Corwin as published on CircleID ICANN has filed its initial response to writs of attachment issued by U.S. Courts that seek to have ICANN transfer control of the country code top level domains (ccTLDs) of Iran, Syria and North Korea to plaintiffs in various legal actions. The lawsuits were brought under a U.S. law that permits victims of terrorism and their family survivors to seek the assets of governments that provided support or direction of the terrorist acts.

As expected, ICANN vigorously opposed the court orders and sought to quash them. In an “everything and the kitchen sink” defense, ICANN argues that ccTLDs are not “property”; are not ‘owned” by the nations to which they are assigned; are not within US jurisdiction; are not subject to court jurisdiction under the Foreign Sovereign Immunities Act (FSIA) even if they are “property”; are not subject to ICANN’s unilateral power under its existing contractual agreements; and that forced re-delegation of the ccTLDs would destroy their value and thus be futile. All these arguments raise subsidiary questions of law and policy.

Anything less than full court opposition by ICANN to the writs of attachment would be politically explosive — especially at a time when the IANA functions contract and its remaining official relationship with the US government is in transition.

I have just completed a quick scan of the ICANN filing in the case of Ben Haim vs. Islamic Republic of Iran (although all of ICANN’s responses in the separate cases appear identical) and have a few preliminary observations — all of which relate to the central observation that this case has opened up a can of worms of legal issues:

• The filing does its best to distinguish ccTLDs from gTLDs. However, because all the relevant US case law involves gTLDs it is forced to cite it and that inevitably muddies the distinction to some extent. For example, at p. 11 of the Motion to Quash (p.21 of the PDF) it cites the 1999 decision of the 9th Circuit in Lockheed Martin vs. Network Solutions which held that the then-manager of the .com registry fell “squarely on the ‘service’ side of the product/service distinction”. Extending this analogy to the present would imply that all incumbent and new gTLD registry operators, including those of .brand registries, have no property rights in those registries, notwithstanding the fact that all the relevant contracts with ICANN provide for a strong presumptive right of renewal.
• At the top of page 18 (28), the memo makes the argument that, under the Foreign Sovereign Immunities Act (FSIA), Plaintiffs must show that the “property in the United States of a foreign state” is “used for a commercial activity in the United States”. While .IR and the other ccTLDs at issue have no commercial contacts in the U.S., this is not true for .CO and other ccTLDs that have been repurposed as quasi-gTLDs and are being administered by entities located within the U.S. — noting, of course, that this consideration would only be of consequence if a ccTLD with US commercial contacts was determined to constitute “property” under US law.
• At p.20 (30) of the memo, it is noted that ICANN’s authority is limited to recommending a transfer of the ccTLD to the Department of Commerce (DOC) under the current IANA contract; that under that contract ICANN may only recommend re-delegation for narrow technical and ministerial reasons; and that DOC retains the ultimate authority on the matter (in essence, this position tosses this “hot potato” case into DOC’s lap).

However, this argument immediately raises the question of what the situation will be for ccTLDs will be after the IANA transition, when DOC no longer possesses final authority on TLD re-delegations and when there may be no contract at all in place governing the conduct of the IANA functions. Ironically, terminating the IANA contract between DOC and ICANN may place ccTLDs at greater risk of being re-delegated pursuant to the judicial orders of U.S. courts because this fallback contractual argument will no longer be available!

For now at least the DOC does not have to take any position on these disputes, as ICANN has not recommended that any of the ccTLDs be re-delegated pursuant to the Writs. It is probably accurate to speculate that the DOC would prefer to never be asked to make the decision of whether such actions should be taken to compensate US terror victims under applicable US law, as all the answers available would have significant domestic and international political and legal repercussions.

Again, these are just preliminary views based on a quick initial review of the filing. But, while ICANN has done its best to quash the writs of attachment for the ccTLDs in question, its arguments raise multiple other questions and issues.

Now we must await the response of plaintiffs to these motions, assuming that they will make their best efforts to blow holes in them.

But, however these cases proceed, they cannot answer the question of what the judicial exposure of ccTLDs will be when and if the IANA contract is transferred or extinguished, presuming that ICANN remains a non-profit corporation organized under California law — much less what the answer would be if ICANN ever made the IANA functions subject to another nation’s jurisdiction.

ICANN’s press release regarding its response is at:
https://www.icann.org/resources/press-material/release-2014-07-30-en
Its legal filings are at:
https://www.icann.org/resources/pages/icann-various-2014-07-30-en
The original Writs of Attachment are at:
https://docs.google.com/file/d/0B_dOI5puxRA9M3hweE9Eel9mVTQ/edit?pli=1.

By Philip S. Corwin, Founding Principal of Virtualaw LLC, a Washington, DC Law and Public Policy Firm. He also serves as Of Counsel to the IP-centric law firm of Greenberg & Lieberman, and as Strategic Advisor to the ICANN Sherpa DNS-focused consultancy. The views expressed in this article are solely his own.