"Reach out and touch someone": the growing use of domain name seizure as a vehicle for the extraterritorial enforcement of U.S. law.

Author:Mellyn, Jack
Position:NOTES
 
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  1. INTRODUCTION II. THE DOMAIN NAME SYSTEM--NAMES WITHIN REACH A. The Birth of the Domain Name System B. The Location of Domains III. U.S. LAW: THE DOMAIN NAME AS SEIZABLE PROPERTY A. Umbro and Kremen: Property or Service? B. Congress Defines Domains: The In Rem Provisions of the ACPA C. State and Federal Civil Forfeiture--The Next Step? 1. Kentucky Takes on the World--In Re 141 Domain Names 2. The Federal Government Steps In: Operation "In Our Sites" IV. ANALYZING DOMAIN SEIZURE UNDER INTERNATIONAL LAW A. Prescription and Adjudication Problems B. Problems With Regard to Conflict of Laws and Comity C. Breaking the Web: International Public Policy Concerns V. A PRIVATE INTERNATIONAL LAW SOLUTION--THE ICANN UNIFORM DISPUTE RESOLUTION PROCESS VI. CONCLUSION 1. INTRODUCTION

    On June 30, 2010, agents from U.S. Customs and Immigration Enforcement staged a virtual dawn raid. From their offices in the United States, the agents used warrants obtained from a federal court in New York to shut down nine websites based in countries that included Germany, the Netherlands, the U.K., and the Czech Republic. (1) Although the raid included the seizure of bank and advertising accounts in the United States, its main target was a new and surprising kind of property: the domain names of the websites themselves. (2)

    The crackdown, dubbed "Operation In Our Sites," was only the latest in a series of increasingly aggressive efforts by government officials and private litigants to enforce U.S. intellectual property (IP) rights abroad through the seizure of foreign-owned Internet domain names. This paper will explore the growing use of domain name seizure as a mechanism for enforcing U.S. claims against foreign actors and will analyze the domestic and international legal issues raised by applying U.S. IP law to parties whose contact with the United States is limited, and whose activities--with the exception of website registration--are generally conducted entirely overseas. Ultimately, this article will question whether the trend of domain name seizure through U.S. courts is legally, practically, or politically sustainable. Instead of national jurisdiction or an international agreement, it will argue that private international law--in the guise of binding arbitration among Internet users-may provide the answer.

    Section I will discuss the evolution of the Domain Name System (DNS) in the United States and explain how critical portions of the Internet's infrastructure came to be under the practical control of U.S. actors. Section II will explore the shift in U.S. courts and statutes towards treating domain names as property and the growing involvement of private parties and state and federal government actors in using DNS to extend the extraterritorial reach of U.S. law. Section III will analyze the continued viability of domain name seizure as a matter of public policy and international law. Section IV will conclude by exploring the Internet Corporation for Assigned Names and Numbers (ICANN) Uniform Dispute Resolution Process (UDRP) and will argue that the UDRP model, based on private party consent, offers the best way forward.

  2. THE DOMAIN NAME SYSTEM--NAMES WITHIN REACH

    For copyright and trademark holders in the United States, the rise of the Internet has represented both an opportunity and a grave potential threat. (3) The Internet gives American corporations a new vehicle to reach global markets and to establish a brand presence on a worldwide platform. At the same time, it has enabled a new generation of intellectual property right infringers to reach the U.S. market while remaining overseas, inaccessible, and in many cases, anonymous. As a result, domestic litigants have struggled both to gain jurisdiction over infringers and to secure a remedy sufficient to stop their activity. The problem is perhaps most acute in the copyright and trademark context, where foreign web operators have been highly active in both traditional trademark and copyright infringement (such as the production and attempted importation of counterfeit goods and copyrighted intellectual property) as well as new forms of infringement like "cybersquatting," in which individuals purchase domain names identical to or confusingly similar to existing trademarks with the intention of profiting from the goodwill associated with the trademark. Because trademark and copyright law are territorially limited, rights holders facing a foreign infringer have frequently found themselves without remedy in either domestic or foreign courts.

    Two main models have arisen to cope with the problem. In the first, states, and the U.S. in particular, have attempted to extend the extraterritorial reach of their intellectual property laws by means of statutes targeting the conduct of domestic Internet intermediaries--Internet service providers (ISPs) and domain name registrars (DNRs). This approach is international in effect, but essentially represents a "long-arm" application of national law. In the second, international organizations like the World Intellectual Property Organization (WIPO) have created systems for alternative dispute resolution separate from the trademark or copyright laws of any particular state. These systems, based on user consent, represent the "private international law" response to the problem, relying on collective self-regulation by Internet users and seeking to avoid the thorny question of which state's intellectual property laws to apply. (4)

    This article claims that the "national law" model--the extension of national jurisdiction by means of domain name seizure--has become unsustainable as both a practical and a legal matter, and has the potential to fracture the fragile consensus that allows the Internet to operate. Instead, I will argue that private international law--a kind of consent-based lex informatica (5)--remains the most plausible means of protecting intellectual property and resolving the struggle for jurisdiction.

    1. The Birth of the Domain Name System

      The Internet is frequently described as "global" or "borderless," existing everywhere and nowhere at once. While there is some truth in this description, it ignores the central role of the physical infrastructure and human administrators responsible for registering domain names, routing traffic, and providing connectivity to users. These administering individuals and corporations have addresses and assets in "real space," making them susceptible to suit or seizure by governments and private litigants. Because so much of the Internet's physical infrastructure resides in the United States, U.S. domestic law can--and increasingly does--make use of "real space" jurisdiction over this infrastructure to control cyberspace activity around the world.

      The Internet began as an American creation. (6) Growing out of the U.S. military's Advanced Research Projects Agency Network (ARPANET) system in the 1970s, the modern Internet was produced through the combined efforts of the U.S. federal government, U.S. research universities, and a key group of civilian advisors. From an early stage, Internet pioneers aimed to transition the system from U.S. government management to a system of non-governmental, international control. (7)

      One of the key pieces of infrastructure to make the transition from public to private control was the DNS. The DNS can be conceptualized as a kind of telephone book for the Internet. Its function is to translate words--domain names--into numerical addresses, allowing traffic to be directed to the appropriate servers. The system is hierarchical: at the top are so-called "top level domains" (TLDs) like .com, .org, and .net. The top level domains are administered by registrars who assign unique secondary names, like "georgetown.edu" or "microsoft.com." All internet addresses include a top-level domain, giving the TLD administrators collective control of the complete registry.

      The servers on each level refer traffic to the next level down, allowing an internet user anywhere in the world to find any website, simply by typing in its alphanumeric name. The central directory, containing the authoritative list of all top-level domains, is known as the "root." The root is maintained by ICANN, and the server housing the "A" root--the "official" version of the Internet's structure--is located in Dulles, Virginia. (8)

      A user seeking a particular website--for example "airbus.com"--will be referred first to the "root" (in practice, a local copy maintained by the internet provider), which will indicate that Verisign, a California corporation operating in Virginia, is responsible for keeping the master list of ".com" domain assignments. Verisign will route the query to one of its subcontracting registrars, whose list will contain a file linking the name "airbus" with its numeric IP address--thus allowing the traffic to be successfully routed. This system permits traffic to be routed from any IP address to any other IP address anywhere in the world--a feature known as "universal resolvability." (9)

      Because of their involvement in every routing decision, the DNS and its administering registrars are the Internet's de facto gatekeepers, standing athwart the road from anywhere to everywhere else. A website that is removed from the DNS listing becomes effectively invisible and inaccessible. (10) This means that in order to shut down a website, it is not necessary to obtain jurisdiction over its owner, so long as the registrar can be found and served. The physical location of the DNS administrators is therefore highly significant for determining which law can be applied to activity on the Web. The consequences of this fact will be discussed below.

    2. The Location of Domains

      Domain name registrants--that is, website operators--are based around the world. Domain name registrars, on the other hand, are located predominantly in the United States. This is a product of the Internet's early evolution having taken...

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