Are Internet domain names “property”?

August 1, 2014

An interesting lawsuit – Ben Haim et al. v Islamic Republic of Iran et al. – has been percolating through the federal system for the last few years, involving a group of plaintiffs who have received money judgments against the governments of Iran, Syria, and North Korea for injuries suffered in state-sponsored terror episodes.  To satisfy the judgments, the plaintiffs have been on a campaign to seize assets — bank accounts, real property, etc. — located in the US belonging to those governments (with, apparently, some limited success).

In the latest round, they requested, and the DC District Court issued, a series of “writs of attachment” against ICANN, the US-based manager of the global domain name system, ordering it to “hold” property in its control belonging to the defendant governments — specifically, the “country-code top-level domains” (ccTLDs) .IR (Iran), . SY (Syria), and .KP (North Korea) — pending final adjudication of plaintiffs’ claims (so that the property would be available to satisfy the plaintiffs’ previous judgments, should the court order its seizure and liquidation or transfer for that purpose).

I tend not to be a big fan, generally, of resolving through private litigation matters that are more properly viewed as substantial international disputes between nation-states.  And I’m much, much less of a fan of any strategy that embroils ICANN in either (a) complicated questions of international politics or (b) the resolution of private disputes.  It’s a dreadful idea, for many reasons, not least of which is that the domain name system, like other parts of the critical Internet infrastructure, is and should be treated as a public trust, held and managed for the benefit of the global Internet community.  The idea that “ownership” of some small piece of that infrastructure can be made to serve private, rather than public, needs is a bad one indeed. Furthermore, the notion that the decisions of US courts can interfere in ICANN’s management of the domain name system in a way that courts elsewhere cannot (because ICANN is itself a US-based entity and subject to the jurisdiction of the US courts and contempt proceedings and seizure of its assets if it fails to comply with a US court order but not, say, a Brazilian court order) will not go over very well in an international community that already thinks the US government exercises too much control over ICANN, and over Internet infrastructure in general.

And even putting aside those (rather strong) policy arguments, I also agree with the somewhat narrower legal arguments that ICANN makes in its (very well-written) Motion to Quash the Writs of Attachment.  A ccTLD is not “property”; even if you think its property, it’s not property “belonging to” the defendant governments; even if you think it’s property belonging to the defendant governments, it’s not within ICANN’s control; and even if you think it’s property belonging to the defendant governments that is within ICANN’s control, it’s not “located in the United States” and therefore not subject to seizure by a US federal court.

The “domain names are not property” argument is a particularly interesting one.  A ccTLD, like other top-level domains, is a very strange beast; it consists of a name, a line in the Root Zone database associating that name with a specific server which offers registration services for the TLD, and all the associated services.  It’s not a thing – it’s a label we give to a series of interlocking relationships and contractual and other understandings that enable the global resolution and the proper direction of messages to and from particular named entities (XYZ.IR, ABC.SY, etc.).  Nor is it located “in” the United States; it is located on the global network, in the thousands of interlocking databases that allow the domain name system to function.

It’s a very sensible argument, and I’ve made it myself many times.  The problem, though, is that US law already – very unfortunately, in my view, but there you are – treats domain names as if they were “property”.  The Anti-Cybersquatting Protection Act permits aggrieved trademark owners to institute in rem  actions against domain names whose owners are located abroad (and not subject to the jurisdiction of the US courts) – to seize the domain names and then to adjudicate the rights associated with them, on the fiction that the names are indeed property located in the judicial district where the particular domain name registry is located.  On very much the same theory – that domain names are seizeable “property” – the Dept. of Homeland Security has issued several thousand seizure orders over the past few years against domain names allegedly involved in large-scale copyright infringement.  

I would expect the plaintiffs here to press this argument in opposition to ICANN’s motions to quash.  Fortunately, I think ICANN’s other arguments are strong enough that the judge can (and hopefully will) grant its motion without having to delve into this rather tricky nomenclatural minefield about what is, and what isn’t, property.

David G. Post is a Sr. Fellow at the New America Foundation's Open Technology Institute. He taught intellectual property and Internet law at Georgetown and Temple Universities until his recent retirement. He is the author of In Search of Jeffersons Moose: Notes on the State of Cyberspace (Oxford, 2009) and an Adjunct Scholar at the Cato Institute.
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