Judge: Terror bomb victims CAN'T seize Iran's domain name as compensation
ccTLDs aren't like cars or houses
A judge in Washington DC has ruled that a country's entire internet registry cannot be seized, averting a global diplomatic crisis.
In a ruling [PDF] made earlier this week but released late last night, Judge Royce Lamberth focused in on a single argument presented by DNS overseer ICANN that country code top-level domains (ccTLDs) are not "attachable property" because they "exist only as they are made operational by the ccTLD managers".
Lawyers for nine US citizens injured in an Iran-financed bombing in Jerusalem back in 1997 turned to the internet in an effort to recoup millions of dollars awarded to them against the government of Iran more than a decade ago. They wanted Iran's dot-ir top-level domain handed over as part payment of that debt.
The judgment went against the effort however, stating:
"A ccTLD, like a domain name, cannot be conceptualized apart from the services provided by these parties."
In other words, because an internet registry does not exist as its own separate entity, like a car or a house, it cannot be assumed to be an asset that can be seized.
Since these are ongoing services, the judge then argues that because a ccTLD is being constantly changed and updated it can be viewed as an "ongoing contractual arrangement that necessarily requires continued work or services to have value". Because of this it cannot be "attached" to a lawsuit under Washington DC law.
Not exactly a legal bedrock
While the decision is a good one for the Internet - all hell would have broken loose if a US court decided it could hand over control of another country's internet - the judge himself admits that he's on shaky ground.
"There is little authority on the question of whether internet domains may be attached in satisfaction of a judgment," he leads off his rationale. "Indeed no reported decision of any American court appears to have decided the specific issue of whether a ccTLD may be attached."
He then takes a case decided in 2000 of individual domain names and extrapolates the ruling to cover an internet registry (under which millions of domains can exist) as being intrinsically bound to the provision of services.
Even in doing so, the judge recognizes in a footnote that the law - specifically the Sex.com case - has identified domain names as "intangible property" but says that his conclusion that the ccTLD cannot be attached does not mean it can't also be seen as property. In other words, he's made a very narrow finding, and he's not even 100 percent about that.
"While interpretations of the D.C. code are sparse, they tend to support this understanding of ccTLDs," the judge wrote. Hardly a legal bedrock. And the case of a tire company's lawsuit dating from 1967 is used to argue why an ongoing service contract cannot be attached to a lawsuit under DC law.
The judge again acknowledges that this is a bit of a push.
"While this suit does not squarely fit within the rule articulated by the court in Cummings General Tire, that rules does illuminate the fact that court may not … insert a judgment creditor into an ongoing contractual arrangement."
Dodged the bullet
The decision will cause a huge sigh of relief at ICANN's offices. The company has already provided 1,660 pages of documentation, but the lawsuit was about to force further disclosure with respect to ICANN's relationship to the US government and how it runs the critical IANA function, as well as depositions from a number of key ICANN staff. All this would have happened while the internet community is deciding whether and how the IANA contract will be granted to ICANN.
It is also worth noting that while ICANN did make the case that the ccTLDs were not attachable property, its main case was that ccTLDs were not property at all and no one owned them. Its five remaining legal arguments - which we questioned heavily at the time - did not make it into the judge's decision.
It remains to be seen whether the plaintiffs in the case will appeal the decision. They have proved to be very aggressive in their efforts to extract money from the government of Iran, and they may decide that the ruling is sufficiently weak that it is worth pursuing their arguments further. ®
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