NEWS
BENHAIM DISCOVERY MOTION
September 30, 2014
Bloomberg BNA
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VOL. 19, NO. 37
OCTOBER 1, 2014
Domain Names
Depositions of ICANN Lawyers, IANA Manager
Sought in Bid to Attach ccTLD Registries
BY JOSEPH WRIGHT
tate-sponsored terrorism victims seeking to enforce judgments by seizing the country-code toplevel domains (ccTLDs) of Iran, Syria and North
Korea have requested a six-month discovery period in
order to respond ICANN’s efforts to quash their subpoena Ben Haim et al v. Islamic Republic of Iran, et al,
D.D.C., 1:08-cv-00520, motion filed, 9/28/14.
Judgment holder Seth Charles Ben Haim and six others cited the 2007 redelegation of the .um ccTLD for the
U.S. Minor Outlying Islands and the monetization of the
.co ccTLD by Colombia as evidence undermining
ICANN’s positions that it lacks unilateral control over
ccTLDs and that ccTLDs are not property. Ben Haim
also cited a 2008 letter from the National Telecommunications and Information Administration stating that
‘‘the .UM ccTLD is a United States Government asset.’’
‘‘Without the ability to depose people inside ICANN
and get at their documents, we don’t have a fair shot at
winning this battle,’’ Erik Syverson, Ben Haim’s cocounsel and a partner at Raines Feldman in Los Angeles, told Bloomberg BNA.
Syverson said that while the issue of whether ccTLDs
are property subject to seizure is a question of first impression, some courts have found that domain names
are property and he believes it is a small step from there
to say that ccTLDs are property as well.
S
Documents and Depositions Sought. Ben Haim requested that the court order ICANN to turn over eight
categories of non-public documents and permit eight
depositions, including Kim Davies, the current manager
of Internet Assigned Numbers Authority root zone services; David Conrad, ICANN’s Chief Technical Officer;
and Jeffrey LeVee, ICANN’s current counsel and a signatory on its articles of incorporation.
The documents sought by Ben Haim include all documents related to:
s the ICP-1 or Internet Coordination Policy, which
allegedly reserves the right to revoke and redelegate
TLDs;
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s the redelegation of the .um, .ml (Mali), .ke (Kenya), .au (Australia), .pn (Petcairn Island), .eh (Western
Sahara) and .cn (China) ccTLDs;
s the scope, purpose and role of the IANA function;
s payments from registrars offering .ir domain
names to the public;
s the March 2014 progress report of the Framework
of Interpretation Working Group for the Country Code
Names Supporting Organization; and
s any U.S. government decision overruling or failing
to implement an ICANN-requested ccTLD delegation or
redelegation.
Ben Haim also requested that the court permit thirdparty document requests to Verisign, related to the acquisition of .tv and .cc ccTLDs, and Neustar, related to
the acquisition of the .co ccTLD.
Ben Haim’s eight deposition requests included a
‘‘person most knowledgeable’’ at Verisign to testify regarding its purchase of the .tv and .cc ccTLDs, which he
argued demonstrates that ccTLDs are ‘‘economic assets
freely capable of being transferred for the benefit of
judgment creditors similar to a piece of real estate such
as an apartment building,’’ and Neustar vice president
Jeff Neumann to testify regarding its acquisition of the
.co ccTLD.
Ben Haim also sought to depose Kevin Robert Elz,
former administrator of Australia’s .au ccTLD. In 2001
ICANN transferred control of .au from Elz to .au Domain Administration Ltd. (6 ECLR 1104, 10/31/01), (6
ECLR 793, 8/1/01).
Are ccTLDs Property That ICANN Controls? Ben Haim
said that his research to date belies ICANN’s claim that
the global Internet community univocally agrees that
ccTLDs are not property. Some countries themselves
have treated their ccTLDs as property, Ben Haim said,
as Colombia in particular has earned ‘‘tens of millions
of dollars’’ for its .co ccTLD. Ben Haim cited Neustar’s
second quarter 2014 SEC 10-Q filing showing that it
paid $113 million for the rights to operate .co.
Ben Haim also cited a news report showing that a
startup company in 1999 agreed to pay the island nation
of Tuvalu $50 million over 12 years to operate the .tv
ccTLD.
Further, ICANN controls the root zone, Ben Haim
said, and by virtue of that control has the sole power
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over what registry operates certain ccTLDs, a power it
has exercised in the past.
Ben Haim said he has impeaching documents ‘‘that
discredit ICANN’s position that ccTLDs are not government assets and the ICANN it [sic] unable to make
changes to the root that would effect a transfer of a
ccTLD.’’ Ben Haim cited a 2008 letter from the NTIA to
Bill Manning of USMIR LLC, who it said claimed to operate the .um ccTLD for the U.S. Minor Outlying
Islands—a series of Pacific islands inhabited only temporarily by U.S. military personnel. Those islands, according to the letter, are under U.S. jurisdiction, and the
.um ccTLD is thus an asset of the U.S. government.
Ben Haim further cited a report from ICANN’s Jan.
17, 2007 board meeting at which the .um ccTLD delegation was revoked. The unused domain was administered by the University of Southern California’s Information Sciences Institute as a holdover from its prior
administration of the .us ccTLD, and ISI requested that
the delegation be removed. ICANN’s unanimous board
resolution to remove .um from the root zone was an assertion that ICANN acting alone can change the delegation of a ccTLD in the root, Ben Haim said.
ICANN has also failed to address the value of IP addresses belonging to Iran, Syria and North Korea, Ben
Haim said, which this proceeding also seeks to attach
and which are a separate asset from ccTLDs.
Ben Haim also disclaimed any interest in harming individual websites within the ccTLDs at issue, which
ICANN has argued would be shut down if the ccTLDs
were transferred.
In June Ben Haim issued writs of attachment on judgment to ICANN, seeking the turnover of the .ir, .sy and
.kp ccTLDs as well as their Arabic-language equivalents
(19 ECLR 876, 7/16/14). On July 28 ICANN denied holding or controlling any property belonging to Iran, Syria
or North Korea (19 ECLR 988, 8/6/14) and the following
day moved to quash Ben Haim’s subpoenas (19 ECLR
987, 8/6/14).
Ben Haim’s opposition to ICANN’s motion to quash is
currently due Sept. 30.
The Berkman Law Office LLC and Raines Feldman
LLP represent Ben Haim. Jones Day represents ICANN.
To contact the reporter on this story: Joseph Wright
in Washington at jwright@bna.com
To contact the editor responsible for this story:
Thomas O’Toole at totoole@bna.com
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