Susan Weinstein v. Islamic Republic of Iran

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 21, 2016 Decided August 2, 2016
No. 14-7193
SUSAN WEINSTEIN, INDIVIDUALLY AS CO-ADMINISTRATOR OF
THE ESTATE OF IRA WILLIAM WEINSTEIN,
AND AS NATURAL GUARDIAN OF
PLAINTIFF DAVID WEINSTEIN (MINOR), ET AL.,
APPELLANTS
v.
ISLAMIC REPUBLIC OF IRAN, ET AL.,
APPELLEES
Consolidated with 14-7194, 14-7195, 14-7198,
14-7202, 14-7203, 14-7204
Appeals from the United States District Court
for the District of Columbia
(No. 1:00-cv-02601)
(No. 1:02-cv-01811)
(No. 1:08-cv-00520)
(No. 1:01-cv-01655)
(No. 1:08-cv-00502)
(No. 1:00-cv-02602)
(No. 1:14-mc-00648)
2
Meir Katz argued the cause for the appellants. Robert J.
Tolchin, Steven T. Gebelin and Scott M. Lesowitz were with
him on brief. Jeffrey A. Miller entered an appearance.
Noel J. Francisco argued the cause for the garnishee-
appellee Internet Corporation for Assigned Names and
Numbers. Tara Lynn R. Zurawski and Ryan J. Watson were
with him on brief.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, United States Department of Justice, Beth S.
Brinkmann, Deputy Assistant Attorney General, and Douglas
N. Letter, Mark R. Freeman and Sonia K. McNeil, Attorneys,
were on brief the for amicus curiae United States.
Before: GARLAND, ∗ Chief Judge, HENDERSON, Circuit
Judge, and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The
plaintiffs—victims of terrorist attacks and their family
members—hold substantial unsatisfied money judgments
against defendants Islamic Republic of Iran (Iran),
Democratic People’s Republic of Korea (North Korea) and
Syrian Arab Republic (Syria) arising out of claims brought
pursuant to the Foreign Sovereign Immunities Act (FSIA).
To satisfy the judgments, the plaintiffs sought to attach
Internet data managed by the Internet Corporation for
Assigned Names and Numbers (ICANN) and, accordingly,
served writs of attachment on ICANN. On ICANN’s motion,
the district court quashed the writs, finding the data
∗
Chief Judge Garland was a member of the panel at the time
the case was argued but did not participate in this opinion.
3
unattachable under District of Columbia (D.C.) law. We
affirm the district court but on alternative grounds.
I. Background
A. TECHNICAL
This case requires substantial explanation of the sought-
after data. 1 The plaintiffs initiated these proceedings by
serving multiple writs of attachment on ICANN seeking the
country-code top level domain names (ccTLD) and Internet
Protocol (IP) addresses of Iran, Syria and North Korea,
respectively. Neither the ccTLD nor the IP address lends
itself to easy description.
Both data are parts of the Internet, the “network of
networks,” Am. Civil Liberties Union v. Reno, 929 F. Supp.
824, 844 (E.D. Pa. 1996), which is “comprised of numerous
interconnected communications and computer networks
connecting a wide range of end-users to each other.”
Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 409 (2d Cir.
1
In district court, the parties apparently agreed that the motion
to quash should be decided under Federal Rule of Civil Procedure
12(b)(6). See Pls.’ Mot. for Six Month Discovery at 18 (describing
ICANN’s motion and its timing as “akin to a defendant filing a
Federal Rule 56 summary judgment motion at the very outset of a
case”); ICANN’s Opp. to Pls’. Mot. for Six Month Discovery at 13
n.3 (responding that “Motion to Quash is functionally identical to a
Rule 12(b)(6) motion to dismiss”). We resolve all factual disputes
accordingly, “accepting as true all of the factual allegations
contained in the [plaintiffs’ submissions] and drawing all inferences
in favor of” the plaintiffs. Autor v. Pritzker, 740 F.3d 176, 179
(D.C. Cir. 2014) (alterations omitted).
4
2004). 2 The IP address is the appropriate starting point.
Every device connected to the Internet and every web page on
the Internet is identified by an IP address. The IP address
appears as a string of numbers separated by periods, for
example, “100.200.123.234.” It identifies the location, “i.e., a
particular computer-to-network connection” of an end-user’s
computer and also “serves as the routing address
for . . . requests to view a web page.” Id. The IP address is
critical to the Internet’s functioning in the same way a
telephone number is essential to the functioning of the
telecommunications system. One may dial a set of numbers
to connect to other individuals through the
telecommunications system and the same is true vis-à-vis an
IP address and the Internet. Granted, an ordinary Internet
end-user does not operate this way. For example, Google has
the IP address “173.194.65.113” but few would maintain that
entering that address in an Internet browser is the most
practical way to access the Google web page. Instead, most
end-users simply type “google.com” to access the Google
web page.
Because the numeric IP address is difficult to remember,
the domain name system (DNS) was created to provide a
more user-friendly Internet. At bottom, a “domain name” is
the alphanumeric “Web page address[] that end users type
into their browsers” and the DNS matches that name (i.e.,
“google.com”) “with the [IP] addresses of the servers
containing the Web pages the users wish to access.” Nat’l
Cable & Telecommn’s Ass’n v. Brand X Internet Servs., 545
U.S. 967, 987 (2005). Thus, much of the DNS’s value lies in
its ability to enable an end-user, with a domain name in hand,
2
We hereinafter use “end-user” to refer to an individual
seeking to access a web page on the Internet through an Internet
browser.
5
to access a desired IP address and, more importantly, its
corresponding web page without in fact using the IP address.
But unlike an IP address, “a domain name does not signal
where a computer [or web page] is . . . located. . . . [A]
domain name is not an address as typically understood but
instead is a mark identifying a specific person’s or
organization’s site on the Internet.” Thomas v. Network
Solutions, Inc., 176 F.3d 500, 503 n.2 (D.C. Cir. 1999). In
order to reach the “site,” the user’s domain name input must
be “translate[d] . . . into [a] numerical IP address,” Register,
356 F.3d at 410–11 & n.14, i.e., the domain name must be
“resolved,” Name.Space, Inc. v. Network Solutions, Inc., 202
F.3d 573, 577 (2d Cir. 2000).
Understanding the “resolving” process begins with
breaking down an Internet web page name—i.e. a domain
name (“google.com”)—into two parts. The first part appears
after the last dot—the “top level domain” (TLD). As relevant
here, there are two types of TLDs: generic TLDs and country
code TLDs (ccTLDs). The former include “.com,” “.net” and
“.org” whereas the latter are distinguished by a national,
geographic or political association—for example, “.us” for the
United States and, here, “.ir” for Iran, “.sy” for Syria and
“.kp” for North Korea. 3 The second part precedes the last
dot—the second level domain (SLD); i.e., “google” in the
“google.com” example.
Broadly speaking, an Internet end-user searching for (the
technical term is “querying”) a domain name like
3
The plaintiffs also sought to attach the defendants’
internationalized TLDs—TLDs that appear in a country’s language-
specific font—i.e., “.‫ ”ناريا‬for Iran. For simplicity, and because
the parties do not treat them differently, we use the term “ccTLDs”
to refer to both the conventional and the internationalized ccTLDs.
6
“google.com” reaches the web page in one of two ways
depending on whether he already has visited that web page.
In either case, his device ordinarily first sends the query to a
nearby DNS “caching server” operated by the end-user’s
Internet service provider (ISP). 4 See Daniel Karrenberg, The
Internet Domain Name System Explained for Non-Experts, in
INTERNET GOVERNANCE: A GRAND COLLABORATION 23 (U.N.
ICT Task Force 2004). The caching server knows the
location of the web page if it has “cached” it, i.e.,
“remembered it . . . from a previous transaction.” Id. at 24.
In that case the query does not go beyond the caching server
because it directs the end-user to the desired location. Id.
Thus, once an end-user has visited “google.com,” his caching
server remembers the web page location for subsequent visits.
And if the end-user has never visited the requested SLD—i.e.,
never visited “google.com”—but has visited another “.com”
web page (e.g., “amazon.com”), the caching server recognizes
the location of the TLD (“.com”), asks it for the location of
the SLD (“google.com”) and then routes the end-user
accordingly. Id. at 26–27.
An end-user can also locate a web page if he has not yet
visited the web page or even its TLD. This way involves a
caching server that is empty—it does not know the location of
“.com,” and even less “google.com,” because it has not yet
cached them. But the caching server knows at least one thing:
Pursuant to widely adopted pre-programmed DNS protocols,
the server knows to query “a special set of authoritative
4
As its name suggests, an ISP is “an entity that provides
access to the Internet.” Register, 356 F.3d at 410 n.13. Every
individual “Web [page], company, university, and government
agency that utilizes Internet access . . . subscribes to an ISP or is
one.” Id. at 410 n.13. Commonly-used ISPs include Comcast and
Verizon.
7
servers” otherwise known as “the DNS root servers,” id. at
27—of which there are thirteen world-wide; namely, one
“master root zone server,” which contains “the authoritative
root zone file,” 5 and “12 duplicate root zone servers,”
Name.Space, 202 F.3d at 577. In short, the caching server
knows to go to the top of the DNS’s “hierarchical tree
structure.” Id. These thirteen servers—the top of the tree—
know the location of all authoritative TLD servers and thus
the caching server can locate “.com,” “.ir” or any other TLD
by querying the DNS root servers. Once one of the root
servers tells the caching server the “.com” location, the
caching server can query that TLD for all SLDs within it and
does not have to revisit the root servers for subsequent web
page searches within the “.com” TLD. 6 Thus the root servers
form “a critical Internet chokepoint.” A. Michael Froomkin,
Wrong Turn in Cyberspace, 50 DUKE L.J. 17, 50 (2000). To
use the entire DNS, a caching server need know nothing more
than the location of the DNS’s thirteen root servers; the root
servers, tied to the root zone file, permit any end-user to
access all downstream domains.
As relevant here, the DNS’s “hierarchical tree structure,”
Name.Space, 202 F.3d at 577, contains three levels—the
thirteen root zone servers at the top, TLDs one level below
and SLDs one level further below. Each level of the tree
“registers” entities one level below. See Harold Feld,
5
The root zone file is a file that “contains information on the
TLDs within the [DNS] and the location of . . . those TLDs.” Stern,
73 F. Supp. 3d 46, 49 (D.D.C. 2014). According to the DNS, the
thirteen root servers are “authoritative” because they reflect the
information contained in the root zone file.
6
Nevertheless, in reality, a caching server regularly discards
its cached information and revisits the root servers to ensure it has
current information.
8
Structured to Fail: ICANN and the ‘Privatization’
Experiment, in WHO RULES THE NET?: INTERNET
GOVERNANCE AND JURISDICTION 337–38 (Cato Inst. 2003).
Thus, a TLD must be registered in the root servers’ root zone
file in order to be accessible to an end-user. The relationship
between SLDs and TLDs is similar. An SLD registers within
a TLD; thus, one can access Google only by searching for it
in a TLD that it is registered within, i.e., the “.com” TLD.
And, just as a particular TLD ensures that no duplicate
domain name is registered within (i.e., the “.com” registry
allows only one “google.com”), the root zone file ensures that
there is only one of each TLD (i.e., only one “.com”). When
searched, that is the TLD to which the DNS root server directs
an end-user. Because “the vast majority of Internet users,”
via their ISP, query the root servers when searching for a
particular TLD, “[t]he root [zone file] determines which
TLDs are visible” to most Internet end-users world-wide.
Wrong Turn in Cyberspace, 50 DUKE L.J. at 46. Because an
end-user cannot use the DNS to locate a particular web page
without first accessing its TLD—i.e., an end-user cannot
locate “google.com” without first locating “.com”—the root
zone file effectively enables an end-user to access most
existing Internet web pages. Any TLD not “listed in the
root . . . become[s] effectively invisible,” id. at 47, keeping
both that TLD and its registered SLDs beyond the reach of a
typical end-user.
With the DNS background established, we turn to
ICANN. From shortly after its inception in 1983 until 1998,
the root zone file and the DNS were administered by “private
hands” under “loose federal supervision.” Harold Feld,
Structured to Fail: ICANN and the ‘Privatization’
Experiment, in WHO RULES THE NET?: INTERNET
GOVERNANCE AND JURISDICTION 335 (Cato Inst. 2003). In
1998 the United States government transferred much of its
9
oversight role to ICANN, a California non-profit corporation.
ICANN’s mission is to “protect the stability, integrity,
interoperability and utility of the DNS on behalf of the global
Internet community,” Decl. of John O. Jeffrey, App’x 24.2
¶ 5, and, pursuant to a contract with the United States
Department of Commerce (Commerce Department), the
organization now performs several functions essential to the
functioning of the Internet.
Each TLD requires management. ICANN’s first
responsibility relevant to this case is its selection and approval
of qualified entities to operate each of the Internet’s TLDs—
“registry operators” in ICANN parlance. Regarding the
ccTLDs, ICANN uses a comprehensive procedure for those
seeking delegation or re-delegation of registry responsibilities
(i.e., ccTLD management). Among other things, a proposed
ccTLD manager must (1) possess administrative and technical
competency, (2) ordinarily be located in the applicable
country or territory, (3) obtain consent from affected parties,
(4) manifest its commitment to serve the local Internet
community’s interest and (5) demonstrate that the appropriate
local government does not object to the delegation or re-
delegation. 7
Obtaining ICANN approval for ccTLD management,
however, does not automatically effect a registry change. The
delegation or re-delegation is effective only if recorded in the
root zone file. But ICANN cannot make changes to the root
7
Pursuant to ICANN publications, it is “expected that relevant
local governments are consulted” but it is “not a requirement that
they consent.” See Common Questions on Delegating and
Redelegating Country-Code Top-Level Domains (ccTLDs),
IANA.ORG, https://www.iana.org/help/cctld-delegation-answers
(last visited July 7, 2016).
10
zone file. Rather, Verisign, another American company,
performs the recording function under contract with the
Commerce Department. The Commerce Department
approves all ICANN ccTLD management delegations and re-
delegations and instructs Verisign to implement the
corresponding root zone file change. Thus, ICANN screens
and recommends, the Commerce Department authorizes and
Verisign implements all changes to ccTLD management. 8
ICANN’s second relevant function is the distribution of
IP addresses. First, ICANN generates and distributes IP
addresses to regional Internet registries (RIRs). There are five
RIRS world-wide, each responsible for its own multi-country
geographic zone. The RIRs then distribute the IP addresses
further downstream; ultimately to end-users and web page
operators. Once a website operator obtains an IP address, its
web page becomes Internet-accessible. In the usual course,
the operator then acquires and links a domain name to the
web page in order to use the DNS.
B. PROCEDURAL
The plaintiffs, victims of terrorist attacks as well as
surviving family members of those killed in the attacks, have
obtained judgments amounting to hundreds of millions of
dollars against the defendant governments for their respective
roles in those attacks. See Weinstein v. Islamic Republic of
Iran, 184 F. Supp. 2d 13 (D.D.C. 2002) ($ 183,248,164 in
compensatory and punitive damages); Haim v. Islamic
8
But see Br. for United States as Amicus Curiae at 6
(describing government role as “largely symbolic” in that it is
“limited to ensuring that ICANN has followed appropriate
processes and avoided technical errors”); see also id. (“The policy
of the United States is that the Internet’s [DNS] should be free from
the control of any government, including our own.”).
11
Republic of Iran, 425 F. Supp. 2d 56 (D.D.C. 2006) (Haim I)
($ 16,000,000 in compensatory damages); Haim v. Islamic
Republic of Iran, 784 F. Supp. 2d 1 (D.D.C. 2011) (Haim II)
($ 300,000,000 in punitive damages); Campuzano v. Islamic
Republic of Iran, 281 F. Supp. 2d 258 (D.D.C. 2003)
($ 259,000,000 in compensatory and punitive damages to
Rubin plaintiffs); Wyatt v. Syrian Arab Republic, 908 F. Supp.
2d 216 (D.D.C. 2012) ($ 338,000,000 in compensatory and
punitive damages); Stern v. Islamic Republic of Iran, 271 F.
Supp. 2d 286 (D.D.C. 2003) ($ 313,000,000 in compensatory
and punitive damages); Calderon-Cardona v. Democratic
People’s Republic of Korea, 723 F. Supp. 2d 441 (D.P.R.
2010) ($ 378,000,000 in compensatory and punitive
damages). For example, in Weinstein the plaintiffs,
proceeding under the FSIA’s “state sponsor of terrorism”
exception to immunity from suit, see 28 U.S.C. § 1605(a)(7), 9
alleged that Iran sponsored the organization—HAMAS—
which detonated a bomb that killed the plaintiffs’ kin. A
default judgment was awarded pursuant to the state-sponsored
terrorism exception and 28 U.S.C. § 1608 (“No judgment by
default shall be entered . . . unless the claimant establishes his
claim or right to relief by evidence satisfactory to the
court.”). This suit is the latest—although not the only10—
attempt to recover on the various judgments.
On June 24, 2014 the plaintiffs served writs of
attachment on ICANN seeking the defendants’ ccTLDs and
9
This provision has been updated and re-codified at 28 U.S.C.
§ 1605A, see infra nn.21, 22.
10
See, e.g., Calderon-Cardona v. Bank of New York Mellon,
770 F.3d 993 (2d Cir. 2014) (failed attempt to attach North Korean
electronic funds transfers in American banks); Rubin v. Islamic
Republic of Iran, 709 F.3d 49 (1st Cir. 2013) (failed attempt to
attach alleged Iranian antiquities in American museums).
12
“supporting IP addresses” and subpoenas duces tecum seeking
information regarding those data. Decl. of Eric P. Enson,
Supp. App’x 45–46. ICANN then moved to quash the writs,
arguing that (1) the data are not “property” subject to
attachment; (2) the defendants do not own the data; (3) the
data are not located within D.C. or even the United States; (4)
ICANN lacks unilateral authority to transfer/re-delegate the
data and (5) the court lacked jurisdiction to issue the writs. 11
After two months of discovery, the plaintiffs sought a six-
month extension arguing that ICANN had produced limited
information and that further discovery was needed regarding,
as relevant here, ICANN’s contention that ccTLDs and IP
addresses are not “property.” In support thereof, the plaintiffs
submitted the declaration of one of their counsel who
memorialized a discussion he had conducted with an expert
on Internet infrastructure and DNS operators. According to
the declarant, ICANN “ha[s] a monopoly or complete control
over the ‘root zone’ such that ICANN is wholly and solely
responsible for the mapping of [ccTLDs] to their respective
registries/name servers.” Decl. of Steven T. Gebelin at 3,
App’x 51 (Gebelin Decl.). Also according to the declarant,
the alleged expert explained that ICANN had in the past
“changed and redirected who runs certain ccTLDs . . . in
11
ICANN initially argued that the writs themselves were
invalid because they were not court-issued. See ICANN’s
Objections and Verified Answers to Writ of Attachment
Interrogatories at 3, Dkt. No. 88 (“ICANN objects to the Writ of
Attachment and each and every Interrogatory on the grounds, and
in that, they were not properly executed by the Court, as is required
by the Foreign Sovereign Immunities Act.”). See 28 U.S.C.
§ 1610(c) (“no attachment or execution . . . shall be permitted until
the court has ordered such attachment and execution after having
determined that a reasonable period of time has elapsed following
the entry of judgment”). The district court did not address the
argument and ICANN has not pursued it on appeal.
13
conjunction with the ‘monetization’ of the ccTLDs by their
respective governments, including instances where the
governments transferred control away from academic
communities to government approved third parties that
acquired contractual property rights to exploit the ccTLD and
generate revenue.” Id. In short, the alleged expert opined that
ccTLDs are property that a sovereign can own and monetize
and that ICANN has unbridled authority to redelegate them.
The district court granted ICANN’s motion to quash on
November 10, 2014. Applying local law pursuant to FED. R.
CIV. P. 69(a)(1) (“[P]rocedure on execution—and in
proceedings supplementary to and in aid of judgment or
execution—must accord with the procedure of the state where
the court is located, but a federal statute governs to the extent
it applies.”), the court held that ccTLDs are not “goods,
chattels [or] credits” within the meaning of D.C. Code § 16-
544, 12 Stern, 73 F. Supp. 3d at 50–51; accordingly, the court
concluded that “there [we]re no factual disputes that require
further consideration” and denied as moot the plaintiffs’
motion for extended discovery. Id. at 51 n.3. On appeal the
plaintiffs challenge the district court’s interpretation of D.C.
law and suggest certification to the D.C. Court of Appeals
pursuant to D.C. Code § 11–723(a) (“The District of
Columbia Court of Appeals may answer questions of law
certified to it by . . . a Court of Appeals of the United
States.”). They also claim that the district court abused its
discretion in denying further discovery. Our jurisdiction is
based on 28 U.S.C. § 1291.
12
D.C. Code § 16–544 provides that “[a]n attachment may be
levied upon the judgment debtor’s goods, chattels, and credits.”
14
II. Analysis
A. ATTACHMENT IMMUNITY UNDER FSIA § 1609
The FSIA provides “a comprehensive set of legal
standards governing claims of immunity in every civil action
against a foreign state,” Verlinden B.V. v. Cent. Bank of
Nigeria, 461 U.S. 480, 488 (1983), as well as the “sole basis
for obtaining jurisdiction over a foreign state in our courts,”
Argentine Republic v. Amerada Hess Shipping Corp., 488
U.S. 428, 434 (1989). The statute establishes “two kinds of
immunity” for a foreign sovereign. Republic of Argentina v.
NML Capital, Ltd., 134 S. Ct. 2250, 2256 (2014). First, as a
matter of “subject matter jurisdiction,” Verlinden, 461 U.S. at
489, the FSIA establishes immunity from suit in “the courts of
the United States and of the States,” 28 U.S.C. § 1604. The
seven judgments obtained were awarded pursuant to the state-
sponsored terrorism exception to the defendant sovereigns’
immunity from suit, 28 U.S.C. § 1605A. See supra at 10–
11. 13 Second, it establishes immunity from “attachment[,]
13
The judgments in Haim I, Weinstein and Stern were entered
under the former state-sponsored terrorism exception, 28 U.S.C.
§ 1605(a)(7), but those plaintiffs did not convert their judgments to
the exception’s current version, 28 U.S.C. § 1605A. The plaintiffs
concede this point and do not argue for its application to their
respective judgments. See Appellants’ Reply Br. at 23–24
(asserting only Haim II, Rubin, Wyatt and Calderon-Cardona
judgments were entered or converted under section 1605A); see
also Appellee’s Br. at 50 (Haim I, Weinstein and Stern “were
neither entered nor converted to a judgment under § 1605A.”). A
judgment entered under former 1605(a)(7) does not—without
conversion—trigger section 1610(g). See infra at 21–24.
15
arrest and execution,” 28 U.S.C. § 1609. 14
ICANN contends that, because the plaintiffs did not
adequately establish an exception to attachment immunity
under the FSIA, 28 U.S.C. §§ 1609–1611, the district court
lacked subject matter jurisdiction to “execute against” the
defendant sovereigns’ property. Appellee’s Br. at 39–40.
ICANN is mistaken, however, about the jurisdictional nature
of attachment immunity. Although the Supreme Court has
never expressly addressed whether attachment immunity is
jurisdictional, it has in dicta suggested otherwise. See Akins
v. FEC, 66 F.3d 348, 354 (D.C. Cir. 1995) (“Supreme Court[]
dicta . . . not bind[ing]” but “reliance on dicta may
nonetheless be reasonable”); see also ACLU of Ky. v.
McCreary Cnty., Ky., 607 F.3d 439, 447 (6th Cir. 2010)
(inferior court generally “obligated to follow Supreme Court
dicta” absent “substantial reason for disregarding it”). In
NML Capital, the Court referred to the first “kind of
immunity” as “jurisdictional immunity” and the latter as both
the “immunity defense” and “execution immunity.” 134 S.
Ct. at 2256. We are without “substantial reason for
disregarding” this distinction, see ACLU of Ky., 607 F.3d at
447, and the majority of our sister circuits that have
considered the issue are in accord, see Peterson v. Islamic
Republic of Iran, 627 F.3d 1117, 1125 (9th Cir. 2010)
(“[S]overeign immunity from execution does not defeat a
court’s jurisdiction”); Rubin v. Islamic Republic of Iran, 637
F.3d 783, 800 (7th Cir. 2011) (same). 15 We follow suit and
14
28 U.S.C. § 1609 provides in relevant part that “the property
in the United States of a foreign state shall be immune from
attachment arrest and execution except as provided in sections 1610
and 1611 . . . .”
15
One circuit has reached a contrary result, see FG
Hemisphere Assocs. v. Republique du Congo, 455 F.3d 575, 590–
16
reject ICANN’s challenge to the district court’s subject matter
jurisdiction.
B. FEDERAL RULE OF CIVIL PROCEDURE 69(a) AND D.C.
CODE § 16–544
Applying the reasoning of the Virginia Supreme Court in
Network Solutions, Inc. v. Umbro Int’l, Inc., 259 Va. 759
(2000), the district court observed;
[t]he ccTLDs exist only as they are made
operational by the ccTLD managers that
administer the registries of second level
domain names within them and by the parties
that cause the ccTLDs to be listed on the root
zone file. A ccTLD, like a domain name,
91 (5th Cir. 2006), but did so relying, in our view, on inapposite
precedent. The FG Hemisphere court cited a trio of Supreme Court
FSIA cases to inform its analysis of section 1609 but they
addressed only the Act’s immunity from suit provision, 28 U.S.C.
§ 1604. Granted the Fifth Circuit also cited Schooner Exchange v.
McFaddon, 11 U.S. 116 (1812), for the proposition that “American
courts ha[ve] no jurisdiction over” a foreign sovereign’s property,
FG Hemisphere, 455 F.3d at 590 (emphasis added). In Schooner
Exchange the Court held that certain property of France was
“exempt from the jurisdiction of” our courts, Schooner Exch., 11
U.S. at 147, and the case is “generally viewed as the source of our
foreign sovereign immunity jurisprudence,” Republic of Austria v.
Altmann, 541 U.S. 677, 688 (2004). It is inapposite here, however,
because it involved an attempt to exercise in rem jurisdiction
despite the plaintiff’s not having obtained a valid judgment against
France. Schooner Exch., 11 U.S. at 117. FSIA sections 1609–
1611—those governing attachment—operate only after the award
of a valid judgment. See H.R. Rep. 94-1487 at 26 (1976), reprinted
in 1976 U.S.C.C.A.N. 6604, 6625 (“[S]ection 1609 has the effect of
precluding attachment as a means for commencing a lawsuit.”).
17
cannot be conceptualized apart from the
services provided by these parties. The Court
cannot order plaintiffs’ insertion into this
arrangement.
Stern, 73 F. Supp. 3d at 50 (internal quotations omitted). It
then relied on the D.C. Court of Appeals’ holding in
Cummings General Tire Co v. Volpe Construction Co., 230
A.2d 712, D.C. 1967), to conclude that the ccTLDs “may not
be attached in satisfaction of the plaintiffs’ judgments because
they are not properly subject to attachment under District of
Columbia law.” Stern, 73 F. Supp. 3d at 51. 16 Accordingly,
the district court quashed the writs of attachment under local
law, interpreting FED. R. CIV. P. 69(a) to require its
application. See Stern, 73 F. Supp. 3d at 49–50. 17
Similarly, ICANN uses the Rule 69(a) portal to argue,
inter alia, that ccTLDs are not “goods, chattels, [or] credits”
within the meaning of D.C. Code § 16–544 (permitting
attachment “upon the judgment debtor’s goods, chattels, and
credits”) and that local law prohibits attachment both because
the data are “inextricably bound up with the provision of
services” and because ICANN “cannot transfer them
unilaterally or even at Defendants’ behest.” Appellee’s Br. at
14–32. We assume without deciding that local law applies to
the determination of the “attachability” of the defendant
sovereigns’ ccTLDs. 18 In addition, we assume without so
16
As explained infra at 26–27, the district court did not
address the IP addresses.
17
The district court denied the plaintiffs’ discovery motion as
moot. See id. at 51 n.3. We affirm for the same reason.
18
Although we assume the applicability of D.C. Code § 16–
544, we nonetheless have reservations about its applicability.
Federal Rule of Civil Procedure 69(a)(1) (“The procedure on
18
execution—and in proceedings supplementary to and in aid of
judgment or execution—must accord with the procedure of the state
where the court is located, but a federal statute governs to the extent
it applies.”) contains significant limiting language. It incorporates
only local procedure. There are precious few federal rules of
procedure for execution of judgments; the draftsmen evidently
“decided . . . to borrow the format employed in the courts of the
forum state,” Resolution Trust Corp. v. Ruggiero, 994 F.2d 1221,
1226 (7th Cir. 1993), at least in part to enable a plaintiff to execute
on a federal judgment, see, e.g., United States v. Harkins Builders,
Inc., 45 F.3d 830, 833 (4th Cir. 1995) (“Even though we look to
state law to determine the . . . procedure to be followed . . . we do
so in furtherance of federal law, giving effect to rules entitling
parties to enforce federal judgments in federal courts.”); cf.
Peacock v. Thomas, 516 U.S. 349, 359 (1996) (“[T]he Federal
Rules of Civil Procedure provide fast and effective mechanisms for
execution” in order “[t]o protect and aid the collection of a federal
judgment.” (emphases added)).
In our view, application of Rule 69(a)(1) requires a
preliminary determination, i.e., whether D.C. Code § 16–544 is in
fact procedural. The answer may depend on an inquiry materially
identical to the Supreme Court’s so-called reverse-Erie precedent
holding that the “general and unassailable proposition” that local
“rules of procedure govern[] litigation” can be overcome if their
application is “outcome-determinative.” Felder v. Casey, 487 U.S.
131, 138, 141 (1988). The “reverse-Erie” title is plainly a nod to
the inquiry undertaken when a federal court hearing a state law
claim must decide whether an issue is “substantive”—and thus
determined by state law—or “procedural” and thus subject to the
federal rules. See Hanna v. Plumer, 380 U.S. 460, 465 (1965); see
also Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 428
(1996) (applying Erie’s “outcome-determinati[ve] test” with
reference to “the twin aims of the Erie rule: discouragement of
forum-shopping and avoidance of inequitable administration of the
laws” (internal quotation marks omitted)). Here the proceedings
involve a federal, not state, claim. This difference has little
significance given Rule 69’s broad directive to apply the procedure
19
holding that local law does not operate to bar attachment of
the defendant sovereigns’ ccTLDs. 19
“of the state where the court is located.” FED. R. CIV. P. 69(a)(1).
But if, per reverse-Erie, a procedure is inapplicable in state court, it
would not “accord with the procedure of the state” for the federal
court to use that procedure. Id.
Granted, in dated cases regarding the scope of “Revised
Statutes § 916” (RS 916)—a Rule 69 predecessor, see United States
v. Yazell, 382 U.S. 341, 355 (1966), the Supreme Court in effect
held that the Congress “adopted” all state laws bearing on
execution, Fink v. Oneil, 106 U.S. 272, 277 (1882). But RS 916
and Rule 69 contain materially different language, making Fink
inapposite. In addition, modern cases confirm that the Fink Court’s
wholesale adoption of state execution law is, like RS 916, a relic.
In Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825
(1988), faced with the assertion that a Georgia “state procedural
device for collecting judgments”—garnishment—was in fact
“substantive,” the Court examined its features before confirming its
procedural nature and resulting applicability via Rule 69. Id. at 834
n.10 (“under Georgia law, postjudgment garnishment is nothing
more than a method to collect judgments otherwise obtained”
(second emphasis in original)).
19
Assuming, again without deciding, that Rule 69(a)(1) can
be interpreted to incorporate a local law attachment bar, execution
on a FSIA judgment requires caution for another reason. “[A]ctions
against foreign sovereigns in our courts raise sensitive issues
concerning the foreign relations of the United States.” Verlinden,
461 U.S. at 493. Moreover, the conduct of our nation’s foreign
affairs, if not “vested in the national government exclusively,”
United States v Pink, 315 U.S. 203, 233 (1942), nonetheless
restricts “[a]ny concurrent state power . . . to the narrowest of
limits,” Hines v. Davidowitz, 312 U.S. 52, 68 (1941). If a state
court’s application of a bar on property alienation vis-à-vis a
foreign sovereign represents an unconstitutional “intrusion by the
State into the field of foreign affairs,” Zschernig v. Miller, 389 U.S.
20
C. FSIA’S EXEMPTIONS TO EXECUTION IMMUNITY
Although attachment immunity is not “jurisdictional,” it
is nonetheless a “default presumption” that the judgment
429, 430, 432 (1968) (concluding Oregon law providing property
of deceased resident escheats if government of nonresident alien
heirs prohibited inheritance without interference unconstitutionally
intruded on foreign affairs), it can be argued that a federal court’s
similar application via Rule 69(a) would not “accord with the
procedure of the state,” FED. R. CIV. P. 69(a), at least, not with a
procedure that is—in this arena—constitutional.
The Supreme Court has consistently set aside state laws that
materially impede the national government’s conduct of foreign
affairs, including disposition of foreign assets. In United States v.
Belmont, the federal government sought to recover property in
federal district court from a banker with whom a Russian
corporation had deposited funds before the U.S.S.R.’s
nationalization of all “property and assets of every kind and
wherever situated, including the deposit account” in dispute. 301
U.S. 324, 326 (1937). The United States rested its claim on an
“international compact” with the Soviet government wherein the
latter “released and assigned to [the United States] . . . the deposit
account.” Id. at 326, 327. The district court held that, because the
“bank deposit was within the state of New York . . . in no sense
could it be regarded as an intangible property right within the
Soviet territory” and thus a “judgment for the United
States . . . would be contrary to the controlling public policy of the
state of New York.” Id. at 327. The Supreme Court did not “pause
to inquire whether in fact there was any policy of the state of New
York to be infringed” because, in foreign affairs, “state lines
disappear. . . . [and] the state of New York does not exist.” Id. at
327, 331 (emphasis added). Calling it “inconceivable” for any
“[s]tate Constitutions, state laws, and state policies” to “be
interposed as an obstacle to the effective operation of” the federal
power, the Court reversed. Id. at 332; see also Pink, 315 U.S. at
231–33.
21
creditor must defeat at the outset. See Rubin, 637 F.3d at 800;
see also Peterson, 627 F.3d at 1125 (execution immunity
begins with “presumption that a foreign state is immune and
then the plaintiff must prove that an exception to immunity
applies”); see also 28 U.S.C. § 1609 (defendant sovereign’s
property “shall be immune . . . except as provided in sections
1610 and 1611” (emphases added)). In particular, the
plaintiffs now 20 rely on one or more of three exceptions. The
first is the terrorist activity exception, which provides in
relevant part that
[T]he property of a foreign state against which
a judgment is entered under section 1605A, 21
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—
20
ICANN contends that the plaintiffs forfeited or waived
reliance on any exception to attachment immunity by failing either
to raise the issue adequately in district court or to brief it on appeal.
See infra at 25–26.
21
Section 1605A is the state-sponsored terrorism exception to
a foreign sovereign’s general jurisdictional immunity. It abrogates
suit immunity if “money damages are sought against a foreign state
for personal injury or death that was caused by an act of torture,
extrajudicial killing, aircraft sabotage, hostage taking, or the
provision of material support or resources for such act.” 28 U.S.C.
§ 1605A(a)(1). Courts “shall” hear claims brought under this
section if “the foreign state was designated as a state sponsor of
terrorism at the time the [aforementioned terrorist act] occurred, or
was so designated as a result of such act.” Id. § 1605A(a)(2)(A).
 22
(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.
28 U.S.C. § 1610(g). The second is the commercial activity
exception, which provides in relevant part that
The property in the United States of a foreign
state . . . used for a commercial activity in the
United States, shall not be immune from
attachment in aid of execution, or from
execution, upon a judgment entered by a court
of the United States or of a State . . . if the
judgment relates to a claim for which the
foreign state is not immune under section
1605A or section 1605(a)(7) (as such section
was in effect on January 27, 2008), 22
regardless of whether the property is or was
22
Section 1605(a)(7), as it read on January 27, 2008, is
materially identical to current section 1605A.
23
involved with the act upon which the claim is
based.
28 U.S.C. § 1610(a)(7). And the third exception the plaintiffs
press to us is section § 201 of the Terrorism Risk Insurance
Act (TRIA), which provides in relevant part that
[I]n every case in which a person has obtained
a judgment against a terrorist party on a claim
based upon an act of terrorism, or for which a
terrorist party is not immune under section
1605A of [the FSIA] . . . , the blocked assets of
that terrorist party . . . shall be subject to
execution or attachment in aid of execution in
order to satisfy such judgment to the extent of
any compensatory damages for which such
terrorist party has been adjudged liable.
28 U.S.C. § 1610 note.
To preserve an argument on appeal a party must raise it
both in district court and before us. Odhiambo v. Republic of
Kenya, 764 F.3d 31, 35 (D.C. Cir. 2014) (“[Plaintiff] does not
renew [his FSIA exception] argument on appeal, so we do not
consider it.”). The party must brief the issue with specificity.
See Railway Labor Executives’ Ass’n v. U.S. R.R. Retirement
Bd., 749 F.2d 856, 859 n.6 (D.C. Cir. 1984).
Regarding the terrorist activity exception, the plaintiffs
made minimal reference thereto both in district court and in
their opening appellate brief. In its motion opposing extended
discovery, ICANN argued that “the FSIA divests this Court of
subject matter jurisdiction,” ICANN’s Opp. to Pls.’ Mot. for
Six-Month Discovery at 8, to which the plaintiffs responded,
inter alia, that “Section 1610(g) [removes immunity from]
property of a foreign state against which judgment is entered
24
under 1605A,” and that “ICANN completely ignores Section
1610(g).” Reply in Supp. of Pls.’ Mot. for Discovery 19 &
n.13. On appeal the plaintiffs noted that we have “federal
question jurisdiction” under “28 U.S.C. § 1610” and included
as an addendum the text of section 1610(g). Appellants’ Br.
at 1, a3.
Ordinarily we might find these “fleeting statement[s]”
insufficiently developed to preserve the argument, see Am.
Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir.
2008), but the terrorist activity exception is, simply put,
different. Once a section 1605A judgment is obtained,
section 1610(g) strips execution immunity from all property
of a defendant sovereign. There is no genuine dispute that
four of the plaintiffs’ judgments were entered or converted
under 1605A. 23 Granted, the plaintiffs must show that the
assets in question are “property of” the foreign sovereign, 28
U.S.C. § 1610(g), whether Iran, North Korea or Syria. In our
view, there is no additional “argument” that must be
preserved. See Odhiambo, 764 F.3d at 35. To the extent the
plaintiffs must establish that the data at issue are “property”
that each defendant has at least some ownership interest in,
those matters were the subject of additional discovery
requests (ultimately deemed moot by the district court) and so
it would be premature for us to decide that their attachability
is forfeited on that basis. On appeal the plaintiffs included the
exception in their opening brief addendum and this was
sufficient to put both us and ICANN on notice that they
continued to rely on that exception.
23
See, e.g., Rubin v. Islamic Republic of Iran, 563 F. Supp. 2d
38, 39 n.3 (D.D.C. 2008) (giving effect to plaintiff’s judgment “as
if the action had originally been filed under section 1605A(c).”).
Cf. supra n.13. Accord Heiser, 735 F.3d at 937 n.4.
25
Four of the seven underlying judgments, Haim II, 784 F.
Supp. 2d 1 (D.D.C. 2011); Campuzano v. Islamic Republic of
Iran, 281 F. Supp. 2d 258 (D.D.C. 2003) (Rubin); Wyatt v.
Syrian Arab Republic, 908 F. Supp. 2d 216 (D.D.C. 2012);
Calderon-Cardona v. Democratic People’s Republic of
Korea, 723 F. Supp. 2d 441 (D.P.R. 2010), were entered
under section 1605A. ICANN, however, argues that “the
plaintiffs presented no explanation or evidence” regarding
these judgments. Appellee Br. at 49 (quotation marks
omitted). We are at a loss to discern what “evidence” the
plaintiffs would be required to show under ICANN’s
approach, particularly given that ICANN does not appear to
dispute that four judgments were entered under section
1605A. Id. at 50 (“[The terrorist activity exception] is clearly
inapplicable to three of the seven underlying judgments at
issue here.”). Therefore, the plaintiffs have not forfeited
reliance on the terrorist activity exception to attachment
immunity regarding the Haim II, Wyatt, Rubin and Calderon-
Cardona judgments.
The two remaining exceptions are easily disposed of. 24
There is no reference to the commercial activity exception in
the plaintiffs’ opening brief notwithstanding ICANN
vigorously contested in district court whether the three
ccTLDs were “used for a commercial activity in the United
States.” 28 U.S.C. § 1610(a); see ICANN’s Mot. to Quash at
18 (“ICANN is aware of no evidence that the [ ] ccTLDs are
used for commercial activity of the defendants in the United
States.”). The plaintiffs rebutted this assertion in district
court, see Reply in Supp. of Pls.’ Mot. for Discovery at 19
(“[T]he Internet Assets at issue are used for commercial
24
The commercial activity exception covers all seven
judgments and the TRIA exception applies only to the judgments
obtained in Weinstein, Haim I and Stern.
26
activity in the United States and the United States is the situs.
For example, a .ir second level domain can be purchased in
the United States for approximately $100.”), but on appeal
they failed even to reference their objection in their opening
brief. See Appellants’ Br. at 1–2 (“[I]ssues presented”
includes only whether the assets are attachable property under
D.C. law, whether the district court erroneously failed to
allow additional discovery and whether we should pursue
certification to the D.C. Court of Appeals). Their failure to
brief the issues in their opening brief amounts to forfeiture.
Odhiambo, 764 F.3d at 35. Their reliance on the TRIA
exception likewise merits no close analysis. Notwithstanding
the section 1605A plaintiffs need only to identify “the
blocked assets” of the defendant sovereigns under this
exception, 28 U.S.C. § 1610 note, they failed to raise the issue
in district court.
Finally, we consider the plaintiffs’ claim to the IP
addresses under all of the three exceptions. The district court
did not reach the IP addresses. The plaintiffs contend that its
silence amounts to an abuse of discretion but the district
court’s failure to discuss the IP addresses is easily explained.
In their self-styled “preliminary response” to ICANN’s
motion to quash and their accompanying motion for extended
discovery, the plaintiffs only twice referenced the IP
addresses—once to claim “ICANN has presented virtually no
facts concerning its role in the distribution of IP addresses or
the ownership and value of IP addresses” and once to claim
that “ICANN’s Motion to Quash does not address the
economic value of IP addresses.” Pls.’ Response to ICANN’s
Mot. to Quash at 7, 9. By contrast, the plaintiffs’ same
submissions (their preliminary response and their discovery
motion) referenced the ccTLDs 78 times, replete with
allegations regarding ownership, monetary value and
ICANN’s administrative role. In light of the plaintiffs’
27
omission of any argument touching on the IP addresses, the
district court did not abuse its discretion in omitting to discuss
them. On appeal, Amicus United States expressly doubted
whether the plaintiffs had “preserved . . . arguments about IP
addresses,” Br. for United States as Amicus Curiae at 19,
which assertion the plaintiffs left unrebutted, see Br. for
Appellants in Response to the United States as Amicus
Curiae. We consider it waived on appeal. See United States
v. Olano, 507 U.S. 725, 733 (1993) (“Whereas forfeiture is
the failure to make the timely assertion of a right, waiver is
the intentional relinquishment or abandonment of a known
right.”) (emphasis added and internal quotations omitted).
To sum up, those plaintiffs seeking to attach the
underlying judgments in Haim I, Weinstein and Stern have
forfeited their claims in toto. Those plaintiffs seeking to
attach the underlying judgments in Haim II, Rubin, Wyatt and
Calderon-Cardona have forfeited all but their claim grounded
in the terrorist activity exception to attachment immunity.
D. PROTECTION OF THIRD PARTY INTERESTS UNDER SECTION
1610(G)(3)
To this point we have assumed arguendo that D.C. law
does not impede the plaintiffs’ pursuit of the defendant
sovereigns’ ccTLDs. Moreover, the Haim II, Rubin, Wyatt
and Calderon-Cardona plaintiffs have not forfeited reliance
on the terrorist activity exception to attachment immunity vis-
à-vis the ccTLDs. See 28 U.S.C. § 1610(g). Ordinarily,
remand would be in order to allow the plaintiffs to continue
discovery in an effort to establish whether the ccTLDs can
properly be considered “property of” the defendants under the
FSIA. See 28 U.S.C. § 1610(g)(1); Heiser v. Islamic Republic
28
of Iran, 735 F.3d 934 (D.C. Cir. 2013). Many critical issues
remain disputed. 25
We assume without deciding that the ccTLDs the
plaintiffs seek constitute “property” under the FSIA and,
further, that the defendant sovereigns have some attachable
ownership interest in them. Nonetheless, pursuant to the
terrorist activity exception, the court has the “authority” to
“prevent appropriately the impairment of an interest held by a
25
For example, ICANN contends that the defendants do not
own the .ir, .kp and .sy ccTLDs and that ICANN is therefore
powerless to effect an attachment thereof. As discussed supra at.
12–13, the plaintiffs submitted a declaration regarding their
counsel’s discussion with an “internet infrastructure management
and domain name systems operations and development expert”
suggesting that ICANN had in the past “changed and redirected
who runs certain ccTLDs . . . in conjunction with the ‘monetization’
of the ccTLDs by their respective governments, including instances
where the governments transferred control away from academic
communities to government approved third parties that acquired
contractual property rights to exploit the ccTLD and generate
revenue.” Gebelin Decl. at 2–3. There is also record evidence
regarding the nation of Tuvalu’s monetization of its .TV ccTLD by
sale or lease of its ccTLD management rights to a private company
for millions of dollars. On the other hand, ICANN contends that
ccTLDs are not property at all because they are “not an interest
capable of precise definition, because [they are] always in flux,”
Appellee’s Br. at 12, and that “there is, in fact, no established
market within which ccTLDs are purchased and sold,” id. at 13–14.
They also argue that no one has the requisite control over ccTLDs
in order to establish ownership and that, in any event,
“[a]uthoritative Internet protocol standards declare that concerns
about rights and ownership of domains are inappropriate.” Id. at
12. Finally, the United States as amicus argues that the internet
governance community “explicitly rejects efforts to assert property
rights in [ccTLDs].” Br. for United States as Amicus Curiae at 11.
29
person who is not liable in the action giving rise to a
judgment”—i.e., we are expressly authorized to protect the
interests of ICANN and other entities. 28 U.S.C.
§ 1610(g)(3). 26 Because of the enormous third-party interests
at stake—and because there is no way to execute on the
plaintiffs’ judgments without impairing those interests—we
cannot permit attachment. 27
The plaintiffs demand, in effect, that ICANN delegate
management of the “.ir” ccTLD 28 so that they can “sell or
license the operation of the ccTLD[] to a third party.”
Appellants’ Reply Br. at 26. As explained, the power to
operate a ccTLD includes the power to register (or remove)
domain names from that registry. Thus, an entity seeking a
26
Although the two FSIA exceptions to attachment immunity
the plaintiffs have either forfeited or waived do not include a
similar provision, this case does not turn on forfeiture/waiver. Only
the terrorist activity exception permits attachment “regardless of,”
inter alia, “whether th[e] [defendant] government is the sole
beneficiary in interest of the property,” 28 U.S.C. § 1610(g)(1)(D).
And according to the expressio unius est exclusio alterius canon of
statutory construction, that the terrorist activity exception expressly
provides for attachment of such property suggests that the other
exceptions require that the defendant sovereign have a more
complete ownership interest. Although we express no view on
whether and to what extent the defendant sovereigns, ICANN or
any other party can “own” the ccTLDs, it seems plain that
satisfying the other exceptions requires a more substantial
ownership interest than does this exception.
27
Moreover, although we do not find it necessary to reach the
issue, the United States may be a necessary party hereto and, if so,
this fact would provide another reason for quashing the writs of
attachment. Arizona v. California, 298 U.S. 558, 571–72 (1936).
28
We use “.ir” (Iran) as an example to illustrate the interests at
stake.
30
“.ir” domain name will have to register through the plaintiffs
or their designee—a process in which the ccTLD manager can
extract a fee. The plaintiffs’ plan plainly impairs the interests
of “person[s] who [are] not liable in the action giving rise to
[the] judgment” in myriad ways. 18 U.S.C. § 1610(g).
First, requiring ICANN to delegate “.ir” to the plaintiffs
would bypass ICANN’s process for ccTLD delegation, which
includes ensuring that the incoming manager has technical
competence and a commitment to serving the Iranian Internet
community’s interests. The plaintiffs and, more importantly,
their prospective designee may not possess that technical
competence or commitment. Granted, the plaintiffs are
“aware that the . . . court can—and should—protect the
interests of third parties” and they “welcome the opportunity
to work together with the district court and ICANN to ensure
a smooth transition.” Appellants’ Reply Br. at 26. But even
if the plaintiffs are able to show adequate competence and
commitment, the act of forced delegation itself impairs
ICANN’s interest in “protect[ing] the stability . . . [and]
interoperability . . . of the DNS.” Decl. of John O. Jeffrey,
App’x 24.2 ¶ 5.
Recall that a change in the root zone file will only affect
the routing of a search for “.ir.” But a change in the root zone
file does not also transfer the information stored on the
ccTLD server. 29 To ensure that any delegation occurs
29
For example, assume there is now a web page with the
domain name “example.ir,” meaning that the SLD “example” is
registered within the “.ir” ccTLD. An end-user searching for
“example.ir” reaches the web page by first querying the root servers
for “.ir” and then the “.ir” server for the “example.ir” domain. The
“.ir” server directs the end-user to “example.ir” because it knows
the location of “example.ir,” that is, “example.ir” is registered
within it. But, we may also assume, this web page is not currently
31
seamlessly, ICANN requires that the incoming manager
provide a plan to preserve the stability of the ccTLD, which
plan explains how existing registrants will be affected.
According to ICANN, the current ccTLD managers in the
defendant countries will not voluntarily transfer information
regarding their registrants and, because the relevant servers
are located abroad, we are powerless to so require them. If
ICANN is required to direct an end-user looking for “.ir” web
pages to the plaintiffs’ server but the plaintiffs are unable to
direct them to the requested SLD, the Internet’s stability and
interoperability are undermined. 30
The impairment does not end there. As the plaintiffs
recognize, ICANN occupies its position only because “the
global community allows it to play that role.” Appellants’ Br.
at 34 (emphasis added). “[T]he operators of . . . top level
domains” can “form a competitor to ICANN and agree to
refer all DNS traffic to a new root zone directory.” Id.; see
also Br. for United States as Amicus Curiae at 13 (“As a
technological matter, nothing prevents an entity outside the
United States from publishing its own root zone file and
persuading the operators of the Internet’s name servers to
treat that version as authoritative instead.”). This result,
registered within the plaintiffs’ server which, post-delegation,
would “host” the “.ir” ccTLD. Before the SLD is so registered, an
end-user searching for “example.ir” is not able to reach the web
page. Although it would remain accessible through the old “.ir”
server (i.e., Iran’s server), the root servers, as a result of the
delegation, would no longer direct queries there.
30
The plaintiffs do not allege that a particular ccTLD
management has ever been transferred without the cooperation of
the outgoing manager. Cf. Gebelin Decl. at 6, App’x at 54 (alleging
Tuvalu transferred management of its ccTLD to monetize its
interest).
32
known as “splitting the root,” is widely viewed as a
potentially disastrous development; indeed, some regard it as
the beginning of “ultimate collapse of Internet stability”—a
“doomsday scenario for the globally accessible” network and,
thus, for ICANN. Harold Feld, Structured to Fail: ICANN
and the ‘Privatization’ Experiment, in WHO RULES THE NET?:
INTERNET GOVERNANCE AND JURISDICTION 351 (Cato Inst.
2003). Whether that description of a split root is accurate
need not concern us; ICANN’s interests, as a third party “not
liable in the action giving rise to [the] judgment,” 18 U.S.C.
§ 1610(g)(3), are sufficient for us to protect them pursuant to
section 1610(g)(3) of the FSIA. See Appellee’s Br. at 34
(“[F]orced re-delegation of the Subject ccTLDs would . . .
wreak havoc on the domain name system.”); see also Br. for
United States as Amicus Curiae at 13 (“[T]he result would be
devastating for ICANN, for the [current] model of Internet
governance, and for the freedom and stability of the Internet
as a whole.”).
But given that the ICANN-administered DNS is the
beneficiary of substantial network effects, 31 how could such a
doomsday scenario arise? And why would forced delegation
31
“In markets characterized by network effects, one product or
standard tends towards dominance, because the utility that an end-
user derives from consumption of the good increases with the
number of other agents consuming the good.” United States v.
Microsoft Corp, 253 F.3d 34, 49 (D.C. Cir. 2001) (internal
quotations omitted). Here, the ICANN-administered DNS and the
authoritative root zone file “tend towards dominance” because
domain name registries “and end-users have powerful economic
incentives to remain compatible and connected with each other.”
Milton J. Mueller, Competing DNS Roots: Creative Destruction or
Just Plain Destruction, 3 J. NETWORK IND. 313, 315 (2002).
33
hasten its arrival? 32 In light of the plaintiffs’ recognition that
ICANN’s control “stems only from the fact that the global
community allows it to play that role,” Appellants’ Br. at 34,
and considering that the delegation of the three defendant
sovereigns’ ccTLDs could likely antagonize the global
community, see Br. for United States as Amicus Curiae at 13
(“It is not difficult to imagine that a court-ordered change to
the authoritative root zone file at the behest of private
plaintiffs would prompt members of the global Internet
community to turn their backs on ICANN for good.”), we
believe the doomsday scenario is not beyond imagining. 33
32
As others have explained, “the deck is stacked so heavily in
favor of an established root” that splitting is likely to occur only if
“the existing root is doing something seriously wrong.” Competing
DNS Roots, supra n.31, at 315.
33
As noted earlier, an end-user ISP ordinarily uses DNS
protocols to ask the root servers for the location of one of the
DNS’s TLDs. But there is no technological barrier binding ISPs to
the DNS. A sovereign has authority over ISPs operating in its
country and can “act[] unilaterally to redirect Internet traffic” for
end-users within its borders “by requiring Internet service
providers . . . to use what amounts to [that] government’s own
DNS.” Harold Feld, Structured to Fail: ICANN and the
‘Privatization’ Experiment, in WHO RULES THE NET?: INTERNET
GOVERNANCE AND JURISDICTION 354 (Cato Inst. 2003). For
example, a foreign government can require that, when receiving a
query for a particular TLD, an ISP operating within its borders not
direct that query to a root server but rather to a different location
altogether. If ICANN delegates management of “.ir” to the
plaintiffs and the plaintiffs control where a query for “.ir” SLDs is
directed, Iran has a powerful incentive to require its ISPs to bypass
the root servers altogether and instead require ISPs to direct queries
to the server that formerly hosted the “.ir” ccTLD. Under that
circumstance, end-users in Iran and other parts of the world might
access different web pages by querying identical domain names.
34
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.
And there is no reason to suppose that “members of the global
Internet community [would not] turn their backs on ICANN for
good.” Br. for United States as Amicus Curiae at 13. For example,
another sovereign whose citizens do business through web pages
registered under the former “.ir” ccTLD might no longer permit
their ISPs to search the root servers for “.ir” SLDs. Whether or not
this possibility is a positive development for the Internet, it
unquestionably impairs ICANN’s interests in “protect[ing] the
stability . . . [and] interoperability . . . of the DNS,” Decl. of John
O. Jeffrey, App’x 24.2 ¶ 5.