Susan Weinstein v. Islamic Republic of Iran
2016 U.S. App. LEXIS 13981
| D.C. Cir. | 2016

Background

  • Plaintiffs are victims (and families) who obtained large money judgments against Iran, North Korea, and Syria under FSIA terrorism provisions and sought to satisfy those judgments by serving writs of attachment on ICANN for the defendants’ ccTLDs (".ir", ".sy", ".kp") and related IP address space.
  • ICANN moved to quash, arguing the data are not attachable property, defendants do not own the data, the assets are not located in D.C./U.S., ICANN cannot unilaterally transfer/re-delegate them, and the court lacked jurisdiction to order execution.
  • The district court quashed the writs under D.C. law (D.C. Code § 16-544), reasoning ccTLDs cannot be treated as goods/chattels because they exist only through operational services provided by ccTLD managers and root-file operators.
  • On appeal the court affirmed but on alternative grounds: it treated FSIA attachment immunity and related exceptions, found many plaintiff theories forfeited, and held that even assuming ccTLDs could be "property" under FSIA, section 1610(g)(3) permits protecting third-party interests (notably ICANN and DNS stability).
  • The court concluded that forced re-delegation or compelled transfer would impair substantial third-party and global Internet-stability interests (risk of root-splitting), so attachment could not be permitted despite some judgments falling under FSIA §1605A/§1610(g).

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether FSIA attachment immunity is jurisdictional (bars the court from ordering execution) Plaintiffs assumed district court had power to determine attachability under Rule 69 and pressed FSIA exceptions ICANN argued attachment immunity divests the court of subject-matter jurisdiction to execute against foreign sovereign property Court: Attachment immunity is not jurisdictional; it is an immunity/defense distinct from subject-matter jurisdiction (followed circuit precedent)
Whether Rule 69(a)/D.C. law permits attachment of ccTLDs/IP addresses as "goods, chattels, and credits" Plaintiffs argued ccTLDs and IP space are property and attachable under local law ICANN argued ccTLDs/IPs are not tangible property, are inextricably bound with services, and cannot be transferred unilaterally Court: Assumed without deciding Rule 69(a) applies; but many plaintiffs forfeited local-law arguments and district court’s dismissal under D.C. law was affirmed on alternative grounds
Whether plaintiffs preserved and may rely on FSIA exceptions (1610(g) terrorist-activity, commercial-activity, TRIA) Plaintiffs relied primarily on §1610(g) (terrorist activity exception) to strip execution immunity for judgments under §1605A ICANN argued plaintiffs forfeited reliance on the exceptions and, alternatively, that the exceptions do not apply to ccTLDs/IPs Held: Plaintiffs forfeited commercial-activity and TRIA claims on appeal; but four judgments were under §1605A so §1610(g) applies and was preserved for those plaintiffs (so property could be attachable if it is "property of" the sovereign)
Whether court should allow attachment given third-party and national/global interests (ICANN, DNS stability) under §1610(g)(3) Plaintiffs sought court-ordered delegation or sale of ccTLDs to satisfy judgments, proposing oversight to protect third parties ICANN and U.S. amicus argued forced transfer would impair ICANN’s role and DNS stability, risk split roots and global disruption Held: Even assuming ccTLDs are sovereign property, §1610(g)(3) authorizes protection of third-party interests; forced re-delegation would impair critical third-party and global Internet-stability interests, so attachment was barred

Key Cases Cited

  • American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996) (background on Internet architecture and "network of networks")
  • Register.com, Inc. v. Verio, Inc., 356 F.3d 393 (2d Cir.) (DNS resolution and role of IP addresses and domain names)
  • Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573 (2d Cir.) (DNS hierarchy and root servers explanation)
  • Nat’l Cable & Telecommc’ns Ass’n v. Brand X Internet Servs., 545 U.S. 967 (Sup. Ct.) (domain-name/IP technical distinctions)
  • Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480 (Sup. Ct.) (overview of FSIA as exclusive scheme for sovereign immunity)
  • Republic of Argentina v. NML Capital, Ltd., 134 S. Ct. 2250 (Sup. Ct.) (distinguishing jurisdictional immunity from execution/attachment immunity)
  • Rubin v. Islamic Republic of Iran, 637 F.3d 783 (7th Cir.) (execution immunity does not defeat jurisdiction)
  • Peterson v. Islamic Republic of Iran, 627 F.3d 1117 (9th Cir.) (execution immunity analysis)
  • United States v. Belmont, 301 U.S. 324 (Sup. Ct.) (state law cannot obstruct federal foreign-affairs power over foreign assets)
  • United States v. Pink, 315 U.S. 203 (Sup. Ct.) (federal supremacy in foreign-affairs/context of foreign property)
  • Zschernig v. Miller, 389 U.S. 429 (Sup. Ct.) (state law intruding on foreign relations is invalid)
  • Heiser v. Islamic Republic of Iran, 735 F.3d 934 (D.C. Cir.) (post-judgment attachment practice involving FSIA exceptions)
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