Blocking the attempt to seize international-top level domain names
Published on November 28, 2015 by Patricia Monemvasitis and Kim Leontiev
Not your Domain! DC Court sides with ICANN blocking the attempt to seize international-top level domain names via the US Federal Court
Earlier this year we reported via this Blog about the attempt by a group of judgment creditors of a successful civil claim against the government of Iran to satisfy part of their award by obtaining the issue of writs of attachment – seizure orders for a number of country-code top level domain (ccTLDs) such as .ir (Iran), .sy (Syria) and .kp (North Korea) [see link to article Whose Domain is it anyway? The startling attempt to seize international top-level domain names via the US Federal Court]. The US District of Columbia Court (DC Court) has now issued its ruling – upholding ICANN’s application and ordering that the writs of attachment should be quashed.
The writs of attachment for the ccTLDs were issued against ICANN (Internet Corporation for Assigned Names and Numbers) the US-based international manager of internet addresses or domain names, which proceeded to challenge the validity of and quash the writs in the DC Court before Justice Lamberth.
In moving that the writs of attachment be quashed, ICANN presented several key submissions to the court, central to which was a legal proposition that had not previously been judicially tested or considered, namely whether domain names, when properly understood, could actually constitute property.
ICANN’s case was that domains cannot be subject to seizure orders because they are not actually “property,” and even if they were “property,” they are in any case not the property of ICANN, the United States government or any of the defendant governments, and even if they were the domains are not located in the US or anywhere else to as to be within the jurisdiction of the court for valid seizure.
Lamberth J began his reasons with a brief discussion of the Internet and Domain Name system, citing ICANN’s publications such as a Beginner’s Guide to Domain Names 3 (2010) and the statement of the court in Thomas v Network Solutions Inc., 176 F3d 503-04 (D.C. Cir 1999) to explain that the domain names ultimately arise from associations between a name programmed into a “root server” (or “root zone file”) which (in some ways analogously to a telephone directory) directs a user’s search query to the proper server(s) on which the domain name is registered.
Whilst this to a large degree corresponds to ICANN’s submissions as to the intangibility of domain names stripping them of any property status, His Honour did not rely on this as the basis of his decision.
Instead Lamberth J took a more narrow approach relying on garnishee case law in relation to garnishee orders upon contractual rights to find that the ccTLDs could not be validly seized. His Honour cited the decision of the Virginia Supreme Court in Network Solutions Inc v Umbro Int’l Inc., 529 S.E.2d 80 (Va. 2000) which held that a domain name could not be garnished by a judgment creditor under the relevant legislative provisions of Virginia because the domain name is “inextricably bound” to the domain name services provided by the Registry operator. In other words, because the existence or operational availability of a domain name on the Internet depends upon the service of a Registry, it is inseparable from the ongoing contractual rights and arrangements by which it is serviced. This is no different in the case of country-code top level domain (ccTLDs) which are constituent parts of a domain name.
Having established the contractual element integral to domain names, Lamberth J referred the established principles of garnishee cases- namely that sums payable upon the satisfaction of a condition or contingency cannot be subject to garnishment until such time as those conditions or contingencies are fulfilled.
Whilst conceding that this principle did not squarely fit to the current issues, Lamberth J nonetheless pointed out that because ccTLDs are operated by ccTLD mangers (national Registars) and connected to computers around the world through the root zone, they cannot be subject to seizure as this would in effect place the judgment creditor into the shoes of the judgment debtor in the ongoing contractual arrangement with a third party, offending the rule of the privity of contract.
Thus, ICANN has managed to successfully quash the writs of attachment and establish that domain names (including ccTLDs) are not property that can be seized. The Court’s narrow reasoning by adoption of garnishee case law and concluding that domain names being inextricable from contractual rights and services made them incapable of being seized under Columbian District law does leave many other questions raised in ICANN’s submissions still wanting answers. What, after all, is the property status of a domain name? Can it be owned? And can it be located within a particular jurisdiction? It seems that these questions will have to await another rare legal opportunity for their consideration. For now it seems, it is not a matter of whose (if anyone’s) domain it is, but rather whose domain it is presently not!