In an interesting twist, the appeal in the victims of terrorism case (now known as Weinstein & others -v- Iran & others) appears to be on the point taking a detour, leaving Federal jurisdiction, and being heard at the Appeal Court level in D.C. (i.e. the DC equivalent of the state appeals court).

You will recall that at first instance, it was decided that it was not necessary for the Federal court to decide whether TLDs and IP address blocks were property, because, even if they were — and the Court seemed to give a strong hint that they might be — they wouldn’t be the sort of property that could be garnished/attached.

The Plaintiffs appealed this. And in an interesting, although not unusual, development, they have petitioned the court to have part of the case decided not by the United States’ Court of Appeals but by the District of Columbia appeals court.

The way this seems to work, is a bit like when an English court, upon realising that its decision in a case before it depends on the interpretation of EU law, decides to refer the question to the ECJ in Luxembourg.

So here, the appellants have asked the Courts to answer the following question: ‘Whether D.C. CODE § 16-544, which provides that a judgment creditor may attach the “goods, chattels, and credits” of the judgment debtor, permits or might permit (dependent on what is revealed in discovery) ajudgment creditor to attach top level domain names and IP addresses of its judgment debtor?’

ICANN opposed this, but apparently lost the most recent skirmish: on 6th August, the Federal court stated: ‘Upon consideration of the motion to certify a question of law to the District of Columbia Court of Appeals, the opposition thereto, and the reply, it is ORDERED that the motion be referred to the merits panel to which this appeal is assigned.’

What this appears to mean is that the three judges of the Appeal Court that are assigned will now consider the application that ICANN wanted dismissed, namely whether the DC courts should be asked for a definitive interpretation of the statute (16-544).

It seems very likely that they will agree; and then at that point (some time in October) the case will head off to the DC Appeals Court.

The appellants have now filed a full brief, and it’s extremely interesting. There are a number of arguments in it which I will look at more closely in the coming days.

But the most powerful argument is simply this:

“Might the DC statute mean that TLDs and IP addresses could be attached?” That is a low hurdle to jump over, and it seems that the appellants ought to be able to leap it with ease.

It seems that the Federal Court doesn’t have to decide whether even whether it’s more likely than not. It has to decide simply whether there is a possibility.

And if there is a possibility the statute means what the Appellants say it does, then the obvious and necessary course of action is to obtain a definitive ruling on that.

And the correct way to get a ruling on D.C law is to ask a D.C. court.

As ICANN attempts to persuade the world that it deserves to be cut loose  from the apron-strings of the United States’ government, it is perhaps appropriate to review whether it is fulfilling the requirements of its founding community, never mind going forward.

The ICANN by-laws state, in Section 1 of Bylaw 3 that:

The Corporation and its subordinate entities shall operate to t’he maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness.

Now this is pretty unambiguous.  In the first few ICANN meetings this meant that anyone could participate in the work of ICANN. You just turned up, registered (at no cost), attend and speak the sessions that interested you.

The Government Advisory Committee was a special case — it was formed specifically outside of ICANN, so it is not bound by the bylaws, and membership is restricted to accredited representatives of governments and multi-national organisations.

GAC meetings were originally held entirely behind closed doors, leading to all kinds of speculations. But over the years, the GAC began to feel more and more comfortable — holding joint meetings with other constutiencies and become more transparent. And we learned that, far from devil-worship, the GAC were doing extremely useful work that quite often had a lot in common with the ccTLD community.

Unfortunately, ICANN itself seemed to be going the other way.

In recent years, the perception is that more and more meetings were being held behind closed doors. You only have to look at the proliferation of the ‘CLOSED’ tags on the schedule.

And many of these ‘closed meetings’ are unnecessarily so.

I’ve been in a number of meetings when literally none of the participant knew why it had been scheduled behind closed doors.

It’s fairly self-eviden that if there’s a meeting of the members of a particular Council, or Working Group, that the participants in that group are the only people you’d expect to be debating, but there’s no reason why the general public can’t attend, and follow the discussions.

Transparency demands it, in fact.

The only time a meeting needs to resolve to close its doors, is if, for example it is discussing staff salaries, appointments, or reviewing privileged legal advice.

It was that dangerous radical, Margaret Thatcher, who in 1962, in a Private Members Bill, brought transparency to English local government.

Given the binding nature of the by-law that requires the ‘maximum feasible’ transparency, ICANN should not be doing worse.

In an earlier article I wrote about the court case of Ben Haim (& others) -v- Iran (& others) where the successful Claimants (Plaintiffs) were attempting to attach the Iranian, Syrian and (just for good measure) North Korean country code domain names (.IR, .SY and .KP) and wanted ICANN to hand them over, and took it to court to force it.

A DC court rebuffed the attempt stating that while top-level domains might be property (like any other domain name) they weren’t the sort of property that could be garnished.

Well, as I write this in the aftermath of the Sony hack, and what seem to be countermeasures taking North Korean off the Internet entirely, details are slowly emerging that (not entirely unexpectedly, given their historic persistence) the Claimants, or at least one of them, has launched an appeal.

What is mildly interesting is that it’s just one of the Claimants (lead Plaintiff Seth Ben Haim, and just one of the Defendants (Iran). All the Court filing says is, in essence “I appeal”.

You don’t have to be legally qualified to work out that this is a placeholder, designed to ‘stop the clock’. It also allows the Plaintiffs a breathing space so they can work out whether Washington, DC is the best forum to haul ICANN into court.

Even if, as Judge Landreth clearly foreshadows, (cc)TLDs are property, if .COM names can’t be attached in DC, then the Claimant’s may still have some difficulty with attaching TLDs (which after all, are just dotless domain names).

It always puzzled me anyway that this lawsuit was in DC. After all, ICANN is a California corporation, and the California district courts saw the first lawsuit over TLDs back in November of 1999.

Still, no doubt the Federal Appeal Court in DC is as good a place as any.

At the beginning of August I wrote about the long-running saga of terrorists’ victims who are pursuing ‘state sponsors of terrorism’ (specifically, Iran, Syria, and North Korea) through the US courts for damages for the injuries they have suffered.

Several years along that path they managed to obtain Writs of Attachment in the Federal court district in Washington (D.C.) courts ordering that the ccTLDs of those respective countries be seized in part-payment of the damages they are owed.

ICANN, fairly predictably, became involved at this point. It went to Court in DC asking that the Writs be quashed. It appeared to based its argument on a number of points, starting with the theory that TLDs are different from other domain names, and are not property. See my earlier article..

Federal courts apply the law of the State in which they sit, on matters such as asset seizure.

The Court ruled on the 10th November and the full judgment has just become available.

ICANN has been successful in quashing the Writs attaching the TLDs.

However, as any legal observer will tell you, the actual outcome of a case is not that important (except to the winners and losers!). What is important is the legal reasoning; the rationale and the dicta.

In other words, on what legal principles is a judgment made. Does it create new law, for example, which can bind the decisions of future courts (‘binding precedent’). And are there any other legal principles discussed: these can form what are called ‘persuasive precedent’ and/or obiter dicta).

Well, in this case, the outcome seems to turn on fact, rather than any estoteric legal principle.

The Court appears to have found as fact that the domain names that had prospectively been seized by the Plaintiffs (Claimants) had the nature of a contractual right.

What this means for the Plaintiffs is that under the statute law of DC, rights arising under a contract cannot be seized as part of a judgment. This technicality means that the Court did not have to rule whether ccTLDs are property or not: it just had to be satisfied that, if it were property, it was not the sort of property that the relevant law (statute) allows to be seized by a creditor (in D.C.) , which ICANN has fairly easily been able to show.

Other commentators (e.g. the DomainPulse people) have written the court has ruled that ccTLDs are not property. This turns out to be incorrect.

[DomainPulse updated and revised their coverage since this was written and they have now corrected this.]

Interestingly, the Court chose explicitly to say in the judgment that it has not decided that ccTLDs were not property.

On page 8 of the judgment, in footnote 2, the Court says: “The Court notes that judicial decisions have found domain names to be a form of intangible property. See e.g. Kremen v Cohen 337 F.3d 102,1030 (9th Cir 2002). But the conclusion that ccTLDs may not be attached in satisfaction of a judgement under DC law does not mean that they cannot be property.”

This appears to give us a clue that the Court might have considered that ccTLDs are no different to gTLDs and no different to domain names such as SEX.COM (which was the property at issue in Kremen v Cohen).

It simply found that ccTLDs were, like other domain names, in the nature of a contractual right, which under DC law cannot be seized by creditors.

As this was sufficient to dispose of the current application, no binding ruling has been issued, so another court could decide either way. But from the above quote, it’s fairly clear that the court clearly seems to think that Kremen v Cohen would have been relevant if it had had to decide whether TLDs are property.

ICANN is embroiled in an ongoing civil court case between victims of terrorism and the government’s of three countries, in the case of Rubin & ors v Iran and other actionswhich are in federal court in the District of Columbia. (Michele Neylon reporting).

Essentially the form of the current Claim is that ICANN are seeking to quash a court order that requires them to transfer the management of three Top Level Domain names to the successful Claimants in a number of separate actions against the Governments of Iran, Syria and North Korea.

ICANN’s full Application to Quash has been published here.

When analysis ICANN’s argument it appears to be that

(a) domain names, at the top level which consist of two letters only (i.e country-code domain names, or “ccTLDs) cannot be regarded as property;

(b) that even they are property they aren’t the sort of property that can be seized in law;

(c) that even if they are seizable property, they aren’t owned by the countries concerned;

(d) even if they are owned by the countries concerned, they aren’t inside the court’s jurisdiction;

(e) even if they are in the jurisdiction, a US Federal law giving immunity to foreign governments prohibits the seizure;

(f) even if that law doesn’t prohibit seizure, ICANN acting along cannot transfer ownership

(g) forced transfer would destroy the inherent value in the property.

The property question is particularly interesting and relevant, since many ccTLDs have invested major resources in developing their registries, and at least at first blush, ICANN appears to be saying they have no rights whatsoever to the delegation.

Even to raise such an argument appears that it might destabilise the smooth functioning of the Internet’s unique naming system . . .