A US judge's decision that Iran's internet registry cannot be seized by victims of an Iranian-backed bomb attack will be challenged on appeal [PDF] in Washington DC.
The decision last month by Judge Royce Lamberth that the .ir country code top-level domain (ccTLD) is not "attachable property" was the latest twist in a decade-long lawsuit brought by Israeli law center Shurat HaDin – which is seeking compensation for nine US citizens injured in an Iran-financed bombing in Jerusalem in 1997.
The ruling pulled domain-name overseer ICANN out of the legal fight for .ir, averting a diplomatic crisis. The injured citizens want the ccTLD as part of their compensation for the attack.
However, the judge's ruling reflected the shaky nature of the legal decision. He used a 1967 car tire lawsuit to make his case while acknowledging that it "does not squarely fit," and extended Virginian law on the ownership of second-level domains to the top-level of the internet, while effectively ignoring California law pointing in the opposite direction. "While interpretations of the D.C. code are sparse, they tend to support this understanding," he wrote.
"It would be nice to see a well-thought-out memorandum of order," one of plaintiffs' lawyers, Erik Syverson told The Register. "I'm not sure we got that here."
Syverson specializes in internet and domain-name law, and is based in Los Angeles, also home of ICANN. He says lawyers are viewing the case more from the perspective of California's Ninth Circuit, which treats second-level domains – such as Sex.com – as property that can be seized.
The judge's decision in the case of the top-level domain .ir was, Syverson feels, a case of a "path of least resistance."
"Judges don't like to take on anything that they don't need to," Syverson told us. In our review of ICANN's legal argument, we were surprised not to find stronger arguments against the handover of an entire country's internet presence.
The US citzens' lawyers believe they have a strong case for an appeal. "All we're asking is the opportunity to do discovery, subpoena some documents to figure out the factual nature of this," said Syverson. "Some people say we risk breaking apart the internet, but we're been getting a lot of support from ccTLD managers who would be happy to have their registries seen as property rather than a contract for future services."
Syverson also says the group is getting support from people opposed to plans by the US Department of Commerce to hand over management of the top level of the internet to an independent body.
The appeal brings up an intriguing political issue of timing. In 10 months, the US government is planning to transition its control of the critical IANA functions to an as-yet-unidentified body. Among other things, IANA oversees the world's DNS and allocation of IP addresses.
Under the formal proposal – out for public comment – that entity would be a corporate shell company that did nothing but held the IANA contract and awarded it to a suitable party – almost certainly ICANN.
The appeal case has yet to be scheduled, but it is very possible that it could coincide with the timeline for the IANA transition. Syverson acknowledges there is potentially a political angle to the case: "I'm surprised we've not seen the Tea Party folks talking about this to be honest."
Asked what the plaintiffs would do if they were ultimately successful and were handed over control of Iran's (as well as Syria's) internet space, Syverson is matter-of-fact.
"We have zero interest in shutting down second-level domains. One option is that they take over the registry and run it as a going concern," he said. "I don't think that is that likely. But I can see it being given over to a receiver and auctioned off to the highest bidder." ®