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

[Olivier MJ Crepin-Leblond]

Dear Pranesh,

thanks for your kind reply. My comments are inline:

On 26/04/2016 14:54, Pranesh Prakash wrote:
> 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!):
> https://torrentfreak.com/feds-seize-130-domain-names-in-mass-crackdown-111125/
>
> https://torrentfreak.com/u-s-government-seizes-bittorrent-search-engine-domain-and-more-101126/
>
> http://www.theregister.co.uk/2011/02/18/fed_domain_seizure_slammed/
> https://www.europol.europa.eu/content/690-internet-domain-names-seized-because-fraudulent-practices
>
> http://www.wired.com/2012/03/feds-seize-foreign-sites/

When it comes to domain seizures that directly involve ICANN, I am
absolutely correct that these have been about Top Level Domains only and
the rest of my paragraph is a quote from the BBC relaying what the judge
said.

>
> 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.)
>
> http://cis-india.org/internet-governance/blog/global-multistakeholder-community-neither-global-nor-multistakeholder
>

I am not disputing this, Pranesh. But this widens the debate. What is
the reason that the majority of the world's registries and registrars
are headquartered in the US? Is this caused by ICANN being headquartered
in the US?

>
> 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).
>

I am not going to defend the US justice system and its potential
randomness in case resolution depending on the persons sitting in court.
As a European, of course I'd favour predictable legislation instead of
relying on expensive court cases that might swing either way. But
blaming ICANN for the fact that the majority of the Domain Name industry
is located in the US is unfair. This is a free market world and the new
gTLD process could have brought a myriad of applications from outside
the US. But it did not. Is this really ICANN's fault?

Kindest regards,

Olivier

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