US Reviews of Legal Status of TLDs Unlikely To Fully Resolve Property Questions, Lawyers Say
Pending decisions in U.S. government examinations on the legal definition of top-level domains are unlikely to fully resolve the longstanding debate over whether TLDs are property, said domain names industry executives and lawyers in interviews. The U.S. Court of Appeals for the D.C. Circuit is considering the Weinstein v. Iran case. It centers on arguments for and against identifying country code top-level domains (ccTLDs) as attachable property for garnishment purposes (see 1601200063 and 1601210058). GAO is reviewing whether NTIA’s transfer of oversight of the Internet Assigned Numbers Authority (IANA) functions, including the Department of Defense-created root zone file, constitutes a transfer of government property that would require congressional approval of the transition (see 1509280056).
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The legal status of ccTLDs and other TLDs has become further entangled in the larger political debate over the IANA transition on Capitol Hill in recent weeks. That is misguided because the IANA transition itself would affect only operations above the TLD registration level, said internet lawyer Greg Shatan of McCarter & English. Sen. Kelly Ayotte, R-N.H., and other Senate Commerce Committee members raised concerns during a committee hearing last week about how the transition will affect U.S. government control of the .gov and .mil TLDs (see 1605240067). Rep. Mike Kelly, R-Pa., subsequently bowed the Securing America’s Internet Domains Act (HR-5329), which would require NTIA to extend its existing contract with ICANN to administer the IANA functions through Sept. 30, 2019, unless the agency can certify it secured the U.S. government's “sole ownership” of .gov and .mil (see 1605260036).
It’s interesting but “not surprising” that the legal status of TLDs has become politicized given the recent tenor of the IANA transition debate, said Rightside Vice President-Business and Legal Affairs Statton Hammock. Courts over time have assigned some property traits to TLDs and SLDs but operation of domain names is inherently “more like a contractual license or franchise” than property in the absolute sense, Shatan told us. “There’s certainly a right and ability to control” operation of the domain involved in such agreements, but in the context of the concerns raised on the Hill, the property issue “is a massive red herring,” he said.
“I can’t think of a worse place to resolve” lingering questions about the legal status of TLDs “than in the politicized context" of the IANA transition, said Phil Corwin, principal of e-commerce and IP law consultancy Virtualaw. Federal courts have been split on the status of SLDs and there’s little likelihood that the Supreme Court will provide a precedential decision on that issue in the near future, he said. The D.C. Circuit’s eventual ruling on Weinstein is also unlikely to be definitive, Corwin said. Although IANA transition skeptics initiated the GAO’s most recent examination of whether the U.S. can claim ownership of the root zone file and other aspects of IANA, there’s little to suggest the eventual GAO report will resolve questions about domain ownership, Hammock said. A 2000 GAO report said it was “uncertain” whether an IANA transition “would involve the transfer of government property.”
Existing case law, and particularly the 2000 Network Solutions v. Umbro case, remains “good law to this day” in determining that courts should treat cases involving TLDs or second-level domains as contract disputes rather than as property disputes, Hammock said. Domain name registries “don’t actually own” their assigned TLDs “even if they use the term colloquially,” just as registrants have only operational control of their domain name rather than ownership of it, he said. A registrant who fails to pay to operate the domain annually will lose control of that domain name, and a registry will lose control of an assigned TLD if it violates its agreement with ICANN, Hammock said.
“There’s no one-size-fits-all answer” to resolving disputes about control of all ccTLDs or TLDs in general, Shatan said: “It’s tempting to wrap up the Weinstein case with the questions about .gov and .mil, but each case is different. You can’t take a solution for ccTLDs and apply them to gTLDs” or legacy TLDs. A stronger agreement between NTIA and ICANN that would guarantee U.S. government control of .gov and .mil after the IANA transition would “clarify the state of play” but settling that issue wouldn’t provide a template for other ccTLDs because IANA assigns operational control of those domains directly to national registries, Shatan said.
Any attempt to wrest control of either .gov or .mil would be exceedingly difficult because the process would “almost certainly” involve those TLDs’ designed registries -- the General Services Administration and the Department of Defense, Shatan said: “What’s needed are appropriate assurances” that the U.S. government will maintain control of .gov and .mil “rather than trying to resolve the issue of whether a TLD is a piece of property or a contractual right.”