August 11, 2014
In recent litigation, the Internet Corporation for Assigned Names and Numbers (ICANN), the global governing body for Internet domain name management, takes the position that country code top level domain names (ccTLDs) are not property owned by the national governments with which they are associated. This contention represents the most recent approach to the continually evolving analysis of rights of ownership for Internet domain names.
Nations around the world have been assigned ccTLDs by ICANN. Many governments have, in turn, granted specific authorities the right to manage the operations associated with their ccTLDs.
In ongoing litigation, private parties have sued governments in nations including Iran, North Korea, and Syria for damages based on the alleged role those governments played in certain terrorist activities. The private parties have won some of those cases and are now searching for assets owned by the defendant governments in order to satisfy the damage judgments they have been awarded.
Some of the plaintiffs in those cases take the position that the Internet ccTLDs controlled by the defendant governments are assets of those governments. Accordingly, the plaintiffs argue that ownership of the ccTLDs can be transferred as part of the effort to liquidate the assets in order to satisfy the outstanding claims.
ICANN disputes the argument that ccTLDs are property owned by the governments that control them. Instead, ICANN takes the position that the ccTLDs are similar to traditional postal codes, used by governments to route mail. ICANN claims that ccTLDs are designed solely to perform traffic routing and network management administrative functions for the Internet.
The rights held by governments in ccTLDs arise from contractual arrangements. In its capacity as international manager of Internet domain name operations, ICANN grants governments rights of control and use for ccTLDs. Those governments, in turn, frequently transfer some of those rights to other parties, such as domain name registrars.
The ICANN position on this issue seems to be both accurate and appropriate. Country code domain names are not pieces of property owned by national governments. Instead, they are technical Internet network management tools controlled and managed by ICANN in its capacity as the international domain name system management authority.
If national governments were authorized to treat their ccTLDs as property, global Internet operations could be threatened. In that environment, individual governments would have the ability to exercise total control over their ccTLDs, and such conduct could under some circumstances impair or disrupt Internet operations, a situation which could harm Internet users around the world.
If a national government derives revenue as a result of its control over a ccTLD, however, that revenue constitutes an asset of the government. Accordingly, any revenues earned by a government form its ccTLD could be used to satisfy outstanding claims against that government.
Additionally, it could be possible for ICANN to retract its grant of authority for control of a ccTLD. If a government acts in a manner which violates its obligations to ICANN with respect to management or use of an assigned ccTLD, presumably ICANN could terminate the authorization it previously granted to that government and transfer control over the ccTLD to another party based on ICANN’s obligation to protect the integrity and efficiency of global Internet domain name operations.