Guest blog by Farzaneh Badii
Recently the United States district court for the District of Colombia issued a judgment permitting the seizure of .IR and Iranian IP addresses. The court recognized all IP addresses and domain names managed by .IR ccTLD as assets that could be seized by the victims of terrorist activities as compensation. This included not only those owned by the Iranian government but also those owned by Iranians and all non-Iranians that own .IR domains. In doing so, the court was attempting to enforce other judgments that had been issued against Iran but were unenforceable because the Islamic Republic lacked seizable assets in the US.
Let us set aside, for now, the debate concerning the property status of ccTLDs and focus on the ruling’s implications for global Internet governance. If the management of .IR was actually delegated to the victims of the terrorist attack or to their lawyers, both of which are non-Iranian entities, then it is likely they would not manage .IR in the interest of the Iranian Internet community. Such a transfer would create cultural and religious problems. The Iranian community would be at odds with a Jewish-run ccTLD for an Islamic state. The purchase of .IR domains might even be prohibited and blocked by the Iranian government for Iranians. Additionally, the existing sanctions regime imposed on Iran would impose significant and perhaps insurmountable financial challenges to users and managers alike. For example, it might not be possible to transfer the fee for purchasing the domain name to the United States due to the existing sanctions on financial transactions. Therefore, it would be likely that neither the Iranian community nor the government would buy domain names from this non-Iranian entity which may lead to the collapse of .IR. Consequently, the Court’s action might very well destroy the value of .IR, the capture of which was the purpose of the suit in the first place.
Aside from the potentially self-defeating nature of the move, who does this decision hold liable? This effort to punish the Islamic Republic of Iran is likely to harm many others, because most owners of .IR domain names are from the private sector. In a similar case, Jenny Rubin et al. v. Islamic Republic of Iran, et al. Washington, DC, the plaintiff sought to seize Iranian artifacts that were loaned to a museum in the US. The judge emphasized that only the sovereign’s commercial activities can subject property to attachment. IRNIC is not a commercial entity. The Institute for Research in Fundamental Sciences (IPM), which hosts IRNIC, is affiliated with the Ministry of Science and Technology. But this does not prove any direct link between IRNIC and the sovereign; moreover, it may not even have any formal relationship with the Iranian government regarding the management of .IR.
It seems like we are all entangled with the problems that the “black-box of state” theory raises. The principles of international law bind the state but not its specific organs. Hence in order to enforce a judgment against a state, any of the organs that belong to the state can be held liable. Iranian-supported terrorist activities – assuming that such support exists – are not supported by the Ministry of Science and Education. Other organs of the state might have had a role in that. But in these judgments, the state is considered a black-box which carries out unitary actions as a whole. IPM is not necessarily governmental, it is affiliated with the Ministry of Science and Education but this does not mean that it is a government agent. Therefore it is very ambiguous whether enforcing the judgment affects the state of Iran.
For theorists of Internet governance, this case raises an important question. Would such an issue be raised if ICANN was an intergovernmental organization (IGO) rather than a private corporation in U.S. jurisdiction? Recently Michael Geist has indicated that in a similar case (.cg) a US court found that a ccTLD could be viewed as located in the US and subject to US jurisdiction. These challenges raise significant questions about a private organization such as ICANN governing core Internet functions. Would an international organization prevent such cases from happening and would they provide a balanced approach to all the nations and sovereign power?
The reality is that intergovernmental arrangements are vulnerable to power imbalances between stakeholders, enabling strong ones to use these mechanisms punitively. Iran has been struggling to join WTO for nearly a decade due to US opposition. This is not just about Iran being ineligible to join, it is also about the US using WTO to enforce its political objectives. Considering this, isn’t it also possible that some members of this hypothetical international organization for Internet governance will use their power to enforce other international laws on Iran by sanctioning for example its ccTLD? What pre-conditions would such an organization set? Wouldn’t it be subject to the same political pressures, perhaps even more so, than private corporations operating under private law?
Considering the current power imbalance in IGOs, private ordering might be the optimal solution. Private ordering allows for a more consensus based, multistakeholder approach than intergovernmental organizations do. Compared to IGOs , private ordering has several other benefits such as the power to provide mechanisms for leveling the playing field and providing enforceable decisions. If an international organization replaces ICANN, we might see more cases similar to IRNIC in the future.
 Ward Ferdinandusse, ‘Out of the Black-Box-the International Obligation of State Organs’ (2003) 29 Brook. J. Int’l L. 45,54.