farhad emam Farhad Emam
Publish Date : 02/16/2016

Domain Name Law in Iran Ben Haim v Iran

EXECUTIVE SUMMARY

Key terms

Domain name, ICANN, Ben Haim v. Iran

Summary

According to the Tower Magazine on June 29, 2014:

On Tuesday the United States District Court for the District of Columbia issued an order for the Internet Corporation for Assigned Names and Numbers (ICANN) to seize Iran’s internet domain (.ir) and IP addresses in order to recover more than $1 billion in damages that the Islamic Republic owes for its sponsorship of global terror.

ICANN did not comply with the order as reported by phys.org/news on July 30, 2014:

ICANN general counsel John Jeffrey said in a statement that these domains are not assets which can be seized but "part of a single, global interoperable Internet which ICANN serves to help maintain." He added that these domains "are not property, and are not 'owned' or 'possessed' by anyone including ICANN, and therefore cannot be seized in a lawsuit." ICANN filed its response Tuesday in federal court after being served with orders to recover assets from those three countries from plaintiffs who won lawsuits against Iran, Syria and North Korea.

This Legal Report explains the facts and the legal basis of the claim, as well as the latest development in this field of law.

II. Facts of the matter

The Writ of Attachment on Judgment other than Wages, Salary and Commissions issued by the United States District Court for the District of Columbia in the civil action No. 01-1655 (RMU) reads as follows:

“You are hereby notified that any money, property or credits other than wages, salary and commissions of the above named defendant(s) are seized by the Writ of Attachment, and you are required to hold it and not to pay or surrender it to the defendant(s) or to anyone else without an order from this court.

The judgment against the defendant was entered on September 10, 2003 in the amount of one hundred and nine million Dollars ($ 109,000,000) and the costs amounting to $.... with interest at an annual rate of 1.33% from September 10, 2003 less credit of $500,000.

Within 10 days after this writ is served upon you, you are required to answer the interrogatories, UNDER PENALTY OF PERJURY, and to file in this court the original and one copy of the answers, and to serve a copy, by mail or other means upon the plaintiff(s) and upon the defendant(s). If you fail to do so, judgment may be entered against you for the entire amount of the plaintiff’s claims with interests and costs.

Witness this Honorable Chief Judge of Said Court, this 24th day of June 2014.”

In the above civil action, the plaintiff(s) are Jenny Rubin, et al. In four similar civil actions the plaintiffs are: a) Susan Weinstein, et al; b) Shaul Stern, et al; c) Seth Charles Ben Haim, et al, and; d) Mary Nell Wyatt, et al. The defendant is the Islamic Republic of Iran and the garnishee is the Internet Corporation for Assigned Names and Numbers (ICANN). The total amount of the judgments in the above cases is $921,248,164.

The Interrogatories in Attachment include two questions as follows:

1) Were you at the time of service of the writ of attachment, or have you been between the time of such service and the filing of your answers to this interrogatory indebted to the defendant(s), and, if so, how, and in what amount?

2) Had you at the time of the service of the writ of attachment, or have you been between the time of such service and the filing of your answers to this interrogatory, any goods, chattels, or credits of the defendant(s) in your possession or charge, and, if so, what?

III. Legal basis of the claim

The writ of attachment and the judgment issued against the government of Iran are based on the following premises:

1) ICANN is responsible for regulating and managing domain names under a contract with the Department of Commerce (DoC) of the USA.

2) ICANN is formally a private non-profit California corporation created that is subject to the US laws.

3) The Foreign Sovereign Immunities Act (28 U.S.C. § 1610(g)) that intends to assist terror victims to collect judgments against foreign states enables the claimants to attach property of the Iranian government in aid of execution or in execution of the judgment issues in the year 2003:

“(g) Property in Certain Actions —

(1) In general — Subject to paragraph (3), the property of a foreign state against which a judgment is entered under section 1605A, and the property of an agency or instrumentality of such a state, including property that is a separate juridical entity or is an interest held directly or indirectly in a separate juridical entity, is subject to attachment in aid of execution, and execution, upon that judgment as provided in this section, regardless of—

(A) the level of economic control over the property by the government of the foreign state;

(B) whether the profits of the property go to that government;

(C) the degree to which officials of that government manage the property or otherwise control its daily affairs;

(D) whether that government is the sole beneficiary in interest of the property; or

(E) whether establishing the property as a separate entity would entitle the foreign state to benefits in United States courts while avoiding its obligations.

(2) United states sovereign immunity inapplicable— Any property of a foreign state, or agency or instrumentality of a foreign state, to which paragraph (1) applies shall not be immune from attachment in aid of execution, or execution, upon a judgment entered under section 1605A because the property is regulated by the United States Government by reason of action taken against that foreign state under the Trading With the Enemy Act or the International Emergency Economic Powers Act.

(3) Third-party joint property holders— Nothing in this subsection shall be construed to supersede the authority of a court to prevent appropriately the impairment of an interest held by a person who is not liable in the action giving rise to a judgment in property subject to attachment in aid of execution, or execution, upon such judgment” (emphasis added).

A. Michael Froomkin in his article titled ‘Wrong Turn in Cyberspace: Using ICANN to route around the APA and the Constitution’ challenges these premises:

1) ICANN has been making domain name policy under contract with the Department of Commerce (DoC) of the USA.

2) ICANN is formally a private non-profit California corporation created, in response to a summoning by U.S. government officials, to take regulatory actions that the DoC was unable or unwilling to take directly.

3) Despite being famously decentralized and un-hierarchical, the Internet relies on an underlying centralized hierarchy built into the domain name system (DNS).

4) ICANN has chosen to keep in place and step up enforcement of some policies that it inherited, notably NSI's anti-privacy rule requiring that every registrant of a domain name agree to have his name, address, e-mail, and telephone number placed in a database readable by any Internet user in the world.

5) DoC's reliance on ICANN is different from the classic model of privatization, because rather than privatizing a revenue-generating function, the government is "privatizing" a policy-generating function. Furthermore, the "privatization" is subject to sufficient strings to make ICANN's actions fairly chargeable to the government. Although the ICANN-DoC contracts speak of cooperation and research, some of the most significant outputs from ICANN are government regulation in all but name.

6) There is substantial evidence, discussed below, that DoC has directly instructed ICANN on policy matters. Furthermore, as ICANN is utterly dependent on DoC for ICANN's continuing authority, funding, and, indeed, its reason for being, it would be reasonable to conclude that the corporation is currently so captive that all of ICANN's decisions can fairly be charged to the government.

7) DoC's relationship with ICANN is defined by two sets of opposite claims that are hard, perhaps legally impossible, to reconcile. On the one hand, DoC retains ultimate control over the root, and enjoys very substantial sources of leverage over ICANN, so much so that it almost amounts to de facto control. On the other hand, DoC committed itself to "privatizing" the governance of the DNS, and its statements and actions since are consistent with a desire to avoid being seen to control the DNS and with allowing ICANN maximum freedom of action.

Briefly put, it would be difficult to establish that ICANN is just a private entity that holds or is entitled to hold the money that it receives from the government of Iran. Therefore, execution of the writ of attachment may be interpreted as seizing property or credit of the government of Iran that is at the disposal of an entity controlled by the US government through a writ of attachment issued by an American court.

VI. Latest development

It is reported on Yahoo.com on February 8, 2016 that:

Sweden's Goran Marby was Monday named head of the body that manages Internet addresses, pledging to uphold checks and balances as it steps out from under US government oversight…

In an exclusive interview with AFP, Marby described ICANN as evolving and vowed to keep it on course under what is known as "multistakeholder" governance, bringing in business and academia as well as government users of the Internet…

The main issue in the above news is that if the US government approves the plan, the contract between ICANN and the US government will expire on September 30. Does it mean that ICANN will become a more independent entity? ICANN has announced on its website that:

The Affirmation of Commitments (AoC) is the 2009 Agreement (translations available) between ICANN and the United States Department of Commerce.  This Agreement reaffirmed ICANN's independence, its commitment to making decisions in the public interest that are accountable and transparent, and its commitment to undergoing four regular reviews performed by the community.

If the AOC has already “reaffirmed ICANN’s independence”, what is the role of the new plan that is to be applied after expiry of the contract between ICAN and the US government? This issue will be discussed in another Legal Report.

 

 

GOOD TO KNOW

To learn more about the issues mentioned in this Legal Report, you may read the following texts. If after reading this Legal Report and the following texts, you still have questions that call for detailed responses, you may send them to us by clicking on “Our Services” button and following the procedure explained there.

RELEVANT LEGAL NEWS:

Law in Iran Legal News: Case Study on ICANN and .IR Domain, Tuesday, August 18, 2015.

RELEVANT LEGAL REPORT:

Law in Iran Legal Report No. 3: Registration of Domain Names in Iran, Tuesday, August 18, 2015.

RELEVANT BOOKLET:

Law in Iran Booklet No. 3: Domain Names Law of Iran, Tuesday, August 18, 2015.

 

 

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