DOJ To Side With ICANN, Iran in DC Circuit Review of Weinstein ccTLDs Case
The U.S. Department of Justice is set to join ICANN and the government of Iran Thursday in arguing before the U.S. Court of Appeals for the D.C. Circuit that country code top-level domains (ccTLDs) aren’t the property of national governments and therefore can’t be garnished as assets in a lawsuit judgment. Judge Royce Lamberth ruled in a consolidated 2014 district court opinion on Weinstein v. Iran and six similar cases that “a ccTLD, like a domain name, cannot be conceptualized apart" from registry managers and was therefore not eligible for garnishment under the Foreign Sovereign Immunities Act and the Terrorism Risk Insurance Act (see 1411130055).
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The case draws interest in the domain names community because of its political implications for the planned spinoff of NTIA’s oversight of the Internet Assigned Numbers Authority (IANA) functions to ICANN, stakeholders said. D.C. Circuit Judges Merrick Garland, Karen LeCraft Henderson and Raymond Randolph are to hear oral argument in Weinstein and two unrelated cases at 9:30 a.m.
D.C. Circuit review of Weinstein is unlikely to result in a reversal of Lamberth’s ruling that the ccTLDs of Iran, North Korea and Syria aren’t transferrable property, domain name lawyers and other stakeholders told us. “I would be quite surprised” if the D.C. Circuit panel overturns Lamberth’s ruling on Weinstein, though “the wild card will be whether the court gets that ccTLDs aren’t a garnishable asset,” said Internet lawyer Greg Shatan of Abelman Frayne. “I’m fairly confident they will. ICANN has argued this pretty clearly.” Lamberth’s ruling “seems sound, and we’ll just see how the D.C. Circuit rules,” said Phil Corwin, principal of e-commerce and IP law consultancy Virtualaw.
Lawyers representing the family of Ira Weinstein, who died from injuries sustained in a 1996 terrorist attack attributed to Iran, still believe they have a solid case to argue for garnishing the Iran ccTLD as part of the compensation the family won in a 2003 default judgment, said Berkman Law Office attorney Robert Tolchin, representing the family. However, the addition of Justice’s amicus brief in support of ICANN’s position against garnishment adds a new wrinkle to the case, Tolchin said. Justice argued that ccTLDs designate only “the national affiliation of a subset of the global Internet community,” including “millions of private businesses and individuals.” Iran’s government may see value in designating its territory as “Iran,” but “no one would suggest that the name ‘Iran’ in an atlas or a newspaper -- or even official publications -- is itself the ‘property’ of the Iranian government subject to attachment by creditors,” Justice said in its brief. Justice does view second-level domain names as property because they're bought from TLD managers. Justice also said it wouldn’t be able to enforce garnishment of a ccTLD because ICANN’s authority comes from global stakeholders who have mutually agreed to treat the U.S.-created root zone file (RZF) that ICANN manages as the sole legitimate RZF.
Justice’s position is “purely political,” given the U.S. government’s interest in moving forward with the IANA transition, and political considerations “shouldn’t sway” the D.C. Circuit, Tolchin said. Justice’s argument also doesn’t appear to be fully supported by the entire federal government, since the leaders of the House and Senate Judiciary committees ordered a GAO review of whether the RZF or other information could be transferred in the IANA transition (see 1509280056), Tolchin said. The timing of oral argument “is auspicious or at least awkward” since ICANN stakeholders are in the final stages of planning the IANA transition and presenting that plan to NTIA for final approval, Shatan said. “There’s obviously a political aspect to this, but I think the U.S. government also felt it was time to put its foot down and clarify its view of how the Domain Name System space works given that a reversal of this case could set a precedent” that would affect ccTLDs and generic TLDs, he said.
A decision overturning Lamberth’s ruling on Weinstein “would inject a very big and volatile political issue into the middle of ICANN and the IANA transition” because it would stoke concerns about the role of U.S. courts in making judicial rulings about ICANN matters, Corwin said. Both the federal government and ICANN would “prefer no surprises, no sticking points” that could further complicate the IANA transition given that “there are enough problems as it is,” said Internet governance scholar and consultant John Laprise. The U.S. government may have also felt the need to oppose garnishment of the .ir ccTLD because of the “political détente between the U.S. and Iran, with this being one of the issues that needs to be solved as relations improve,” Laprise said.