ccTLDs' Property Status at Issue in D.C. Circuit's 'Weinstein v. Iran' Oral Argument
A three-judge U.S. Court of Appeals for the D.C. Circuit panel focused on whether to rule on whether country code top-level domains (ccTLDs) can be considered attachable property for garnishment purposes or on the bigger issue of whether ccTLDs can be considered the property of national governments at all in claims brought under the Foreign Sovereign Immunities Act (FSIA), during oral argument Thursday in Weinstein v. Islamic Republic of Iran. The D.C. Circuit is reviewing Judge Royce Lamberth’s 2014 district court decision on Weinstein and six similar cases involving attempts to garnish ownership of the ccTLDs for Iran, North Korea and Syria as partial damages compensation following successful lawsuits against those nations’ governments (see 1601200063 and 1411130055). Lamberth didn’t rule in 2014 on whether a ccTLD could be considered government property. D.C. Circuit Judges Merrick Garland and Raymond Randolph actively questioned the merits of Weinstein while Judge Karen LeCraft Henderson observed.
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It’s crucial that the D.C. Circuit rule on the overall issue of ccTLDs’ status as government property given the issue’s importance under both FSIA and the Terrorism Risk Insurance Act, said Berkman Law Office attorney Meir Katz, representing the family of Ira Weinstein and other plaintiffs before the D.C. Circuit. Katz also said Lamberth abused the district court’s discretion by denying attempts to seek discovery on additional issues in Weinstein. The Weinstein family and others are seeking garnishment of the ccTLDs via ICANN in their bid to get some partial compensation from the governments of Iran, North Korea and Syria after failing to “collect materially anything” by other means, Katz said. The three nations’ governments “have made very clear” that they won’t pay out awarded damages, Katz said. Weinstein died from injuries sustained in a 1996 terrorist attack in Israel that was attributed to Iran.
It would be easier for the D.C. Circuit to decide the Weinstein appeal based solely on whether ccTLDs constitute attachable property under D.C. law rather than get into the “more difficult question” of whether such TLDs constitute national government property, said ICANN counsel Noel Francisco of Jones Day. D.C. law recognizes property as being attachable for garnishment purposes when a creditor can claim more right to the property than the debtor and when the garnishee has demonstrable possession of the property. ICANN believes it doesn’t have the power to unilaterally hand over control of ccTLDs and associated IP addresses as part of garnishment proceedings because such transfers can be authorized only through a multistakeholder process involving the larger ICANN community, Francisco said. Weinstein’s family is “effectively trying to step into Iran’s shoes” as administrator of the .ir ccTLD without following the multistakeholder process, he said.
Garland returned repeatedly during oral arguments to the issue of whether ICANN possessed ccTLDs in a way that gives the nonprofit corporation the power to transfer control under D.C. law, at one point saying he was “having trouble figuring out what to do” about the issue. He questioned Katz about why the Weinstein family took the case to the D.C. Circuit since Verisign, which operates the authorized root zone file for ICANN, is based in Virginia. ICANN “calls the shots” on Verisign’s operation of the root zone and is the arbiter for transferring control of any ccTLD, Katz said. Iran has the power only to ask ICANN to transfer administrative control of the .ir ccTLD and related IP addresses, and ICANN itself has to seek approval for transfers from community stakeholders, Francisco said.
Garland also raised concerns about Lamberth’s reliance on the 2000 Network Solutions v. Umbro case as the precedent for rendering his district court decision. Umbro dealt specifically with second-level generic TLDs, which calls into question its applicability in a case involving ccTLDs, Garland said. Fernando contended that Umbro in combination with other cases provides a legal basis for upholding Lamberth’s ruling.
Randolph questioned what the Weinstein family would do with the .ir ccTLD if it were garnished, saying the .ir ccTLD doesn’t have the same general commercial value as Tuvalu’s .tv ccTLD. The South Pacific island nation of Tuvalu is leasing the .tv ccTLD as part of a 12-year $50 million deal. The Weinstein family plans to either license the .ir ccTLD or sell it outright, though much would depend on its marketability, Katz said. “If the asset isn’t worth very much, so be it,” he said. Francisco said garnishment of the .ir ccTLD would result in all second-level domains using the ccTLD being “forced to purchase a bundle of services” from the Weinstein family. Katz denied a transfer of control of the ccTLD would force existing domain owners to continue using the ccTLD, saying users are always free to move to a generic TLD.