Wednesday, September 24, 2014

Internet Governance and Whether Terror Victims Can (or Should) Be Able to Seize Domain Names...

In June, a U.S. District Court issued a judgment in the case of Ben Haim et al. v Islamic Republic of Iran et al. ruling that victims of terrorist attacks could, in fact, seize the assets of the governments which sponsored them - specifically, Iran, Syria, and North Korea.  On its own, this may not seem very noteworthy.  Such money judgments are actually made quite often.  However, what sets this case apart is that the assets in question are the Internet domain name suffixes (what are officially called the ccTLDs) of those countries.

Specifically, the U.S. District Court issued "writs of attachment" against ICANN - the single institution responsible for managing the Internet's domain name system - ordering it to "hold" as property the .IR (Iran), .SY (Syria), and .KP (North Korea) ccTLDs until the final terms of compensating the plaintiffs were adjudicated.

This case raises a few interesting questions.  First of all, is a country's domain name suffix "property"?  As David Post has written, it is actually a public trust.  But even if it is to be considered property, is it really an asset controlled by national governments?  Post answers in the negative here as well:
A ccTLD, like other top-level domains, is a very strange beast; it consists of a name, a line in the Root Zone database associating that name with a specific server which offers registration services for the TLD, and all the associated services. It’s not a thing – it’s a label we give to a series of interlocking relationships and contractual and other understandings that enable the global resolution and the proper direction of messages to and from particular named entities (XYZ.IR, ABC.SY, etc.). Nor is it located “in” the United States; it is located on the global network, in the thousands of interlocking databases that allow the domain name system to function.
Second, is it desirable that one district court located within one country (in this case, the U.S.) should have the authority to seize and redistribute parts of the Internet's global domain name system?  Clearly, this is a pandora's box of problems waiting to open.  Wouldn't that grant other national governments' courts at least a similar legal ability?  Some would certainly try to claim that authority, thus leading to an unmanageable system that granted conflicting ownership rights between territorial jurisdictions - on an Internet that, in terms of technical functionality, does not recognize territorial borders.

Third, as pointed out by Farzaneh Badii, most owners of .IR domain names are actually in the private sector and have no ties to the government at all.  Badii makes the additional argument that if the Court hands over the .IR domain name to the plaintiffs, "it would be likely that neither the Iranian community nor the government would buy domain names from this non-Iranian entity which may lead to the collapse of .IR.  Consequently, the Court’s action might very well destroy the value of .IR, the capture of which was the purpose of the suit in the first place".

Badii addresses the question of whether this issue would even be raised if ICANN were an intergovernmental organization (IGO) or if "private ordering" - allowing for a consensus-based, multistakeholder approach - might be a better fit.  Good theoretical questions, both.  However, from a practical perspective, it would be a whole lot easier to simply argue that the U.S. District Court probably overstepped its bounds in asserting its jurisdiction over the entire Internet domain name space which, whether lawyers and judges believe there is a legal justification for doing so or not, is probably not the wisest or smartest political move.



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