ICANN terrorism case set to move to D.C.

In an interesting twist, the appeal in the victims of terrorism case (now known as Weinstein & others -v- Iran & others) appears to be on the point taking a detour, leaving Federal jurisdiction, and being heard at the Appeal Court level in D.C. (i.e. the DC equivalent of the state appeals court).

You will recall that at first instance, it was decided that it was not necessary for the Federal court to decide whether TLDs and IP address blocks were property, because, even if they were — and the Court seemed to give a strong hint that they might be — they wouldn’t be the sort of property that could be garnished/attached.

The Plaintiffs appealed this. And in an interesting, although not unusual, development, they have petitioned the court to have part of the case decided not by the United States’ Court of Appeals but by the District of Columbia appeals court.

The way this seems to work, is a bit like when an English court, upon realising that its decision in a case before it depends on the interpretation of EU law, decides to refer the question to the ECJ in Luxembourg.

So here, the appellants have asked the Courts to answer the following question: ‘Whether D.C. CODE § 16-544, which provides that a judgment creditor may attach the “goods, chattels, and credits” of the judgment debtor, permits or might permit (dependent on what is revealed in discovery) ajudgment creditor to attach top level domain names and IP addresses of its judgment debtor?’

ICANN opposed this, but apparently lost the most recent skirmish: on 6th August, the Federal court stated: ‘Upon consideration of the motion to certify a question of law to the District of Columbia Court of Appeals, the opposition thereto, and the reply, it is ORDERED that the motion be referred to the merits panel to which this appeal is assigned.’

What this appears to mean is that the three judges of the Appeal Court that are assigned will now consider the application that ICANN wanted dismissed, namely whether the DC courts should be asked for a definitive interpretation of the statute (16-544).

It seems very likely that they will agree; and then at that point (some time in October) the case will head off to the DC Appeals Court.

The appellants have now filed a full brief, and it’s extremely interesting. There are a number of arguments in it which I will look at more closely in the coming days.

But the most powerful argument is simply this:

“Might the DC statute mean that TLDs and IP addresses could be attached?” That is a low hurdle to jump over, and it seems that the appellants ought to be able to leap it with ease.

It seems that the Federal Court doesn’t have to decide whether even whether it’s more likely than not. It has to decide simply whether there is a possibility.

And if there is a possibility the statute means what the Appellants say it does, then the obvious and necessary course of action is to obtain a definitive ruling on that.

And the correct way to get a ruling on D.C law is to ask a D.C. court.

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