[At-Large] R: R: Is ICANN's oversight really moving away from the US government?

Pranesh Prakash pranesh at cis-india.org
Tue Apr 26 12:54:36 UTC 2016

Olivier MJ Crepin-Leblond <ocl at gih.com> [2016-04-08 01:24:44 +0200]:
> On 08/04/2016 00:57, Michele Neylon - Blacknight wrote:
>> The issue around domain seizures has nothing to do with ICANN. Any
>> domain seizure cases I’ve seen (including the examples cited by
>> Parminder) were all made either at the registrar or registry level.
>> I haven’t see any cases where ICANN has been involved directly (though
>> they often get named in cases)
> You're absolutely correct. And the only "seizures" that were requested,
> were those of Top Level Domains: http://www.bbc.com/news/technology-28582478
> There are many other sources that describe the case in detail. The judge
> sided with ICANN in saying that "they are not property subject to
> attachment under District of Columbia Law".

And dear Olivier, you are absolutely incorrect.

U.S. authorities have seized thousands of websites (once accidentally 
seizing 84,000!):

The majority of the world's registries and registrars are headquartered 
in the US:
* 3 in 5 registrars are from the United States of America (624 out of 
1010, as of March 2014, according to ICANN's accredited registrars 
list), with only 0.6% being from the 54 countries in Africa (7 out of 1010).
* 45% of all the registries are from the United States of America! (307 
out of 672 registries listed in ICANN’s registry directory in August 2015.)


So, yes, every country has the ability to exert power over registries 
and registrars, but some have more powers than others.

> In this case, it is actually a good thing that the case had to go in
> front of a US court since jurisprudence already existed.

That is incorrect, since many would see the jurisprudence on a domain 
name as inapplicable to a TLD.

And even if you don't, the reality is that the US is not one singular 
legal entity.  There is a wide divergence of opinions within US courts 
as to whether domain names are property or not, and very little as to 
whether TLDs are properties are not. A helpful footnote in one of A. 
Michael Froomkin's articles provides this bibliography:

Anupam Chander, The New, New Property, 81 TEX. L. REV. 715, 776-781 
(2003) (“Understanding domain names as property accords with how they 
are treated in practice.”); Juliet M. Moringiello, What Virtual Worlds 
Can Do for Property Law, 62 FLA. L. REV. 159, 179 (2010) (discussing the 
Virginia Supreme Court’s conclusion in Network Solutions, Inc. v. Umbro 
Int’l, Inc., 529 S.E.2d 80, 86 (Va. 2000) that a domain name represents 
a service contract, not property subject to garnishment); Xuan-Thao N. 
Nguyen, Commercial Law Collides with Cyberspace: The Trouble with 
Perfection – Insecurity Interests in the New Corporate Asset, 59 WASH. & 
LEE L. REV. 37, 65 (2002) (“The classification of domain names as either 
property or contracts is an issue of first impression with which courts 
have struggled.”); XuanThao N. Nguyen, Cyberproperty and Judicial 
Dissonance: The Trouble with Domain Name Classification, 10 GEO. MASON 
L. REV. 183, 186 (2001) (recognizing domain names as intangible property).

Pranesh Prakash
Policy Director, Centre for Internet and Society
http://cis-india.org | tel:+91 80 40926283
sip:pranesh at ostel.co | xmpp:pranesh at cis-india.org

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