D.C. Circuit Sidesteps TLD Property Status Issue in Weinstein v. Iran
The U.S. Court of Appeals for the D.C. Circuit affirmed a 2014 consolidated U.S. District Court ruling in Washington, D.C., on Weinstein v. Iran and six other cases (see 1411130055). The D.C. Circuit ruled Tuesday that District Judge Royce Lamberth was correct in saying country code top-level domains (ccTLDs) can’t be garnished as assets in a lawsuit judgment. The family of Ira Weinstein, who died from injuries sustained in a 1996 terrorist attack attributed to Iran, sought a transfer of Iran’s .ir ccTLD as part of the compensation the family won in a 2003 default judgment. Other cases consolidated in the 2014 district court ruling involved the ccTLDs for North Korea and Syria. D.C. Circuit Judges Karen LeCraft Henderson and Raymond Randolph affirmed Lamberth’s ruling. Supreme Court nominee Merrick Garland heard oral argument in Weinstein as the D.C. Circuit’s chief judge but didn’t participate in the opinion.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The D.C. Circuit sidestepped ruling on the larger issue of whether TLDs can be considered property, which the three-judge panel wrestled with during oral argument in January amid the politically charged debate over the Internet Assigned Numbers Authority transition (see 1601210058). The ruling should provide reassurances for both supporters and critics of the IANA transition because it indicates U.S. courts are reluctant to make decisions that could endanger the integrity of the root zone file, domain names lawyers told us. ICANN and lawyers for Weinstein didn’t comment.
The D.C. Circuit decided against ruling that ICANN must delegate the .ir ccTLD to the Weinstein family because such a decision “would bypass ICANN’s process for ccTLD delegation, which includes ensuring that the incoming manager has technical competence and a commitment to serving the Iranian Internet community’s interests. It said the plaintiffs and, more importantly, their prospective designee may not possess that technical competence or commitment.” ICANN would be able to transfer the routing of a ccTLD in the root zone file but wouldn't be able to transfer the files stored on the ccTLD manager’s server, Henderson said in the panel’s opinion. The managers of the .ir, .nk and .sy ccTLDs “will not voluntarily transfer information regarding their registrants and, because the relevant servers are located abroad, we are powerless to so require them,” Henderson said in the panel’s opinion (in Pacer). “If ICANN is required to direct an end-user looking for '.ir' web pages to the plaintiffs’ server but the plaintiffs are unable to direct them to the requested SLD, the Internet’s stability and interoperability are undermined.”
A ruling in favor of Weinstein would endanger ICANN’s position as administrator of the Domain Name System, because ICANN indicated it “occupies its position only because ‘the global community allows it to play that role,’” the D.C. Circuit said. TLD operators could form a competitor to ICANN, the DOJ argued in an amicus brief. It's technologically possible because “nothing prevents” another entity from publishing its own root zone file and convincing TLD operators to treat that version of the file as authoritative, the D.C. Circuit said. “This result, known as ‘splitting the root,’ is widely viewed as a potentially disastrous development; indeed, some regard it as the beginning of ‘ultimate collapse of Internet stability’ -- a ‘doomsday scenario for the globally accessible’ network and, thus, for ICANN.” Since forcing delegation of .ir, .nk and .sy would “likely antagonize the global community,” the D.C. Circuit panel concluded “we believe the doomsday scenario is not beyond imagining.”
Judges reached their decision on the assumption that D.C. law “does not operate to bar attachment” of .ir, .nk and .sy as garnished assets but declined to specifically rule on the issue, effectively avoiding weighing in on the larger debate over whether TLDs are property at all. That issue has become embroiled in the politics of the IANA transition debate because of questions regarding whether a transfer of oversight of the root zone file and other IANA aspects constitutes a transfer of government property that requires a vote by Congress. The D.C. Circuit’s Weinstein review and a pending GAO review of the IANA transition were considered unlikely to fully resolve that debate (see 1605310064). The D.C. Circuit’s decision to “sidestep” the TLDs-as-property debate likely prevented Weinstein from becoming a “political football” and sticking to the fundamental issues of the case, said internet lawyer Greg Shatan of McCarter & English.
It's a positive development for supporters of the IANA transition because it reinforces ICANN’s argument in favor of “keeping the root zone unified and avoiding situations that could result in fragmentation,” Shatan said. “ICANN stepped up to the plate in this litigation, which it really needed to” given the case’s potential stakes for the IANA transition. A D.C. Circuit ruling in favor of Weinstein would have “created problems” for the transition because it would have showed that U.S. courts wouldn’t protect sovereign control of ccTLDs, said Phil Corwin, principal of e-commerce and IP law consultancy Virtualaw. The D.C. Circuit’s ruling likely aids supporters of maintaining ICANN’s headquarters in Los Angeles -- and therefore under U.S. courts’ jurisdiction -- because the ruling indicates U.S. courts’ respect for ccTLD sovereignty, Corwin said. The ruling likely reduces the likelihood that the IANA functions, which would be under the control of an ICANN subsidiary post-transition, will be spun off to a fully independent firm at a later date, Shatan said.