KAREN LECRAFT HENDERSON, Circuit Judge:
The plaintiffs — victims of terrorist attacks and their family members — hold substantial unsatisfied money judgments against defendants Islamic Republic of Iran (Iran), Democratic People's Republic of Korea (North Korea) and Syrian Arab Republic (Syria) arising out of claims brought pursuant to the Foreign Sovereign Immunities Act (FSIA). To satisfy the judgments, the plaintiffs sought to attach Internet data managed by the Internet Corporation for Assigned Names and Numbers (ICANN) and, accordingly, served writs of attachment on ICANN. On ICANN's motion, the district court quashed the writs, finding the data unattachable under District of Columbia (D.C.)
This case requires substantial explanation of the sought-after data.
Both data are parts of the Internet, the "network of networks," Am. Civil Liberties Union v. Reno, 929 F.Supp. 824, 844 (E.D. Pa. 1996), which is "comprised of numerous interconnected communications and computer networks connecting a wide range of end-users to each other." Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 409 (2d Cir. 2004).
Because the numeric IP address is difficult to remember, the domain name system (DNS) was created to provide a more user-friendly Internet. At bottom, a "domain name" is the alphanumeric "Web page address[] that end users type into their browsers" and the DNS matches that name (i.e., "google.com") "with the [IP] addresses of the servers containing the Web pages the users wish to access." Nat'l Cable & Telecommn's Ass'n v. Brand X Internet Servs., 545 U.S. 967, 987, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). Thus, much of the DNS's value lies in its ability to enable an end-user, with a domain name in hand, to access a desired IP address and, more importantly, its corresponding web page without in fact using the IP address. But unlike an IP address, "a domain name does not signal where a computer [or web page] is ... located.... [A]
Understanding the "resolving" process begins with breaking down an Internet web page name — i.e. a domain name ("google.com") — into two parts. The first part appears after the last dot — the "top level domain" (TLD). As relevant here, there are two types of TLDs: generic TLDs and country code TLDs (ccTLDs). The former include ".com," ".net" and ".org" whereas the latter are distinguished by a national, geographic or political association — for example, ".us" for the United States and, here, ".ir" for Iran, ".sy" for Syria and ".kp" for North Korea.
Broadly speaking, an Internet end-user searching for (the technical term is "querying") a domain name like "google.com" reaches the web page in one of two ways depending on whether he already has visited that web page. In either case, his device ordinarily first sends the query to a nearby DNS "caching server" operated by the end-user's Internet service provider (ISP).
An end-user can also locate a web page if he has not yet visited the web page or even its TLD. This way involves a caching server that is empty — it does not know the location of ".com," and even less "google.com," because it has not yet cached them. But the caching server knows at least one thing: Pursuant to widely adopted pre-programmed DNS protocols, the server knows to query "a special set of authoritative servers" otherwise known as "the DNS root servers," id. at 27 — of which there are thirteen world-wide; namely, one "master root zone server," which contains "the authoritative root zone file,"
As relevant here, the DNS's "hierarchical tree structure," Name.Space, 202 F.3d at 577, contains three levels — the thirteen root zone servers at the top, TLDs one level below and SLDs one level further below. Each level of the tree "registers" entities one level below. See Harold Feld, Structured to Fail: ICANN and the `Privatization' Experiment, in WHO RULES THE NET?: INTERNET GOVERNANCE AND JURISDICTION 337-38 (Cato Inst. 2003). Thus, a TLD must be registered in the root servers' root zone file in order to be accessible to an end-user. The relationship between SLDs and TLDs is similar. An SLD registers within a TLD; thus, one can access Google only by searching for it in a TLD that it is registered within, i.e., the ".com" TLD. And, just as a particular TLD ensures that no duplicate domain name is registered within (i.e., the ".com" registry allows only one "google.com"), the root zone file ensures that there is only one of each TLD (i.e., only one ".com"). When searched, that is the TLD to which the DNS root server directs an end-user. Because "the vast majority of Internet users," via their ISP, query the root servers when searching for a particular TLD, "[t]he root [zone file] determines which TLDs are visible" to most Internet end-users world-wide. Wrong Turn in Cyberspace, 50 DUKE L.J. at 46. Because an end-user cannot use the DNS to locate a particular web page without first accessing its TLD — i.e., an end-user cannot locate "google.com"
With the DNS background established, we turn to ICANN. From shortly after its inception in 1983 until 1998, the root zone file and the DNS were administered by "private hands" under "loose federal supervision." Harold Feld, Structured to Fail: ICANN and the `Privatization' Experiment, in WHO RULES THE NET?: INTERNET GOVERNANCE AND JURISDICTION 335 (Cato Inst. 2003). In 1998 the United States government transferred much of its oversight role to ICANN, a California non-profit corporation. ICANN's mission is to "protect the stability, integrity, interoperability and utility of the DNS on behalf of the global Internet community," Decl. of John O. Jeffrey, App'x 24.2 ¶ 5, and, pursuant to a contract with the United States Department of Commerce (Commerce Department), the organization now performs several functions essential to the functioning of the Internet.
Each TLD requires management. ICANN's first responsibility relevant to this case is its selection and approval of qualified entities to operate each of the Internet's TLDs — "registry operators" in ICANN parlance. Regarding the ccTLDs, ICANN uses a comprehensive procedure for those seeking delegation or re-delegation of registry responsibilities (i.e., ccTLD management). Among other things, a proposed ccTLD manager must (1) possess administrative and technical competency, (2) ordinarily be located in the applicable country or territory, (3) obtain consent from affected parties, (4) manifest its commitment to serve the local Internet community's interest and (5) demonstrate that the appropriate local government does not object to the delegation or re-delegation.
Obtaining ICANN approval for ccTLD management, however, does not automatically effect a registry change. The delegation or re-delegation is effective only if recorded in the root zone file. But ICANN cannot make changes to the root zone file. Rather, Verisign, another American company, performs the recording function under contract with the Commerce Department. The Commerce Department approves all ICANN ccTLD management delegations and re-delegations and instructs Verisign to implement the corresponding root zone file change. Thus, ICANN screens and recommends, the Commerce Department authorizes and Verisign implements all changes to ccTLD management.
ICANN's second relevant function is the distribution of IP addresses. First, ICANN generates and distributes IP addresses to regional Internet registries (RIRs). There are five RIRS world-wide, each responsible for its own multi-country geographic zone. The RIRs then distribute the IP addresses further downstream; ultimately
The plaintiffs, victims of terrorist attacks as well as surviving family members of those killed in the attacks, have obtained judgments amounting to hundreds of millions of dollars against the defendant governments for their respective roles in those attacks. See Weinstein v. Islamic Republic of Iran, 184 F.Supp.2d 13 (D.D.C. 2002) ($ 183,248,164 in compensatory and punitive damages); Haim v. Islamic Republic of Iran, 425 F.Supp.2d 56 (D.D.C. 2006) (Haim I) ($ 16,000,000 in compensatory damages); Haim v. Islamic Republic of Iran, 784 F.Supp.2d 1 (D.D.C. 2011) (Haim II) ($300,000,000 in punitive damages); Campuzano v. Islamic Republic of Iran, 281 F.Supp.2d 258 (D.D.C. 2003) ($ 259,000,000 in compensatory and punitive damages to Rubin plaintiffs); Wyatt v. Syrian Arab Republic, 908 F.Supp.2d 216 (D.D.C. 2012) ($ 338,000,000 in compensatory and punitive damages); Stern v. Islamic Republic of Iran, 271 F.Supp.2d 286 (D.D.C. 2003) ($ 313,000,000 in compensatory and punitive damages); Calderon-Cardona v. Democratic People's Republic of Korea, 723 F.Supp.2d 441 (D.P.R. 2010) ($ 378,000,000 in compensatory and punitive damages). For example, in Weinstein the plaintiffs, proceeding under the FSIA's "state sponsor of terrorism" exception to immunity from suit, see 28 U.S.C. § 1605(a)(7),
On June 24, 2014 the plaintiffs served writs of attachment on ICANN seeking the defendants' ccTLDs and "supporting IP addresses" and subpoenas duces tecum seeking information regarding those data. Decl. of Eric P. Enson, Supp. App'x 45-46. ICANN then moved to quash the writs, arguing that (1) the data are not "property" subject to attachment; (2) the defendants do not own the data; (3) the data are not located within D.C. or even the United States; (4) ICANN lacks unilateral authority to transfer/re-delegate the data and (5) the court lacked jurisdiction to issue the writs.
The district court granted ICANN's motion to quash on November 10, 2014. Applying local law pursuant to FED. R. CIV. P. 69(a)(1) ("[P]rocedure on execution — and in proceedings supplementary to and in aid of judgment or execution — must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies."), the court held that ccTLDs are not "goods, chattels [or] credits" within the meaning of D.C. Code § 16-544,
The FSIA provides "a comprehensive set of legal standards governing claims of immunity in every civil action against a foreign state," Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 488, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983), as well as the "sole basis for obtaining jurisdiction over a foreign state in our courts," Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). The statute establishes "two kinds of immunity" for a foreign sovereign. Republic of Argentina v. NML Capital, Ltd., ___ U.S. ___, 134 S.Ct. 2250, 2256, 189 L.Ed.2d 234 (2014). First, as a matter of "subject matter jurisdiction," Verlinden, 461 U.S. at 489, 103 S.Ct. 1962, the FSIA establishes immunity from suit in "the courts of the United States and of the States," 28 U.S.C.
ICANN contends that, because the plaintiffs did not adequately establish an exception to attachment immunity under the FSIA, 28 U.S.C. §§ 1609-1611, the district court lacked subject matter jurisdiction to "execute against" the defendant sovereigns' property. Appellee's Br. at 39-40. ICANN is mistaken, however, about the jurisdictional nature of attachment immunity. Although the Supreme Court has never expressly addressed whether attachment immunity is jurisdictional, it has in dicta suggested otherwise. See Akins v. FEC, 66 F.3d 348, 354 (D.C. Cir. 1995) ("Supreme Court[] dicta ... not bind[ing]" but "reliance on dicta may nonetheless be reasonable"); see also ACLU of Ky. v. McCreary Cnty., Ky., 607 F.3d 439, 447 (6th Cir. 2010) (inferior court generally "obligated to follow Supreme Court dicta" absent "substantial reason for disregarding it"). In NML Capital, the Court referred to the first "kind of immunity" as "jurisdictional immunity" and the latter as both the "immunity defense" and "execution immunity." 134 S.Ct. at 2256. We are without "substantial reason for disregarding" this distinction, see ACLU of Ky., 607 F.3d at 447, and the majority of our sister circuits that have considered the issue are in accord, see Peterson v. Islamic Republic of Iran, 627 F.3d 1117, 1125 (9th Cir. 2010) ("[S]overeign immunity from execution does not defeat a court's jurisdiction"); Rubin v. Islamic Republic of Iran, 637 F.3d 783, 800 (7th Cir. 2011) (same).
Applying the reasoning of the Virginia Supreme Court in Network Solutions, Inc. v. Umbro Int'l, Inc., 259 Va. 759, 529 S.E.2d 80 (2000), the district court observed;
Stern, 73 F.Supp.3d at 50 (internal quotations omitted). It then relied on the D.C. Court of Appeals' holding in Cummings General Tire Co v. Volpe Construction Co., 230 A.2d 712, (D.C. 1967), to conclude that the ccTLDs "may not be attached in satisfaction of the plaintiffs' judgments because they are not properly subject to attachment under District of Columbia law." Stern, 73 F.Supp.3d at 51.
Similarly, ICANN uses the Rule 69(a) portal to argue, inter alia, that ccTLDs are not "goods, chattels, [or] credits" within the meaning of D.C. Code § 16-544 (permitting attachment "upon the judgment debtor's goods, chattels, and credits") and that local law prohibits attachment both because the data are "inextricably bound up with the provision of services" and because ICANN "cannot transfer them unilaterally or even at Defendants' behest." Appellee's Br. at 14-32. We assume without deciding that local law applies to the determination of the "attachability" of the defendant sovereigns' ccTLDs.
Although attachment immunity is not "jurisdictional," it is nonetheless a "default presumption" that the judgment creditor must defeat at the outset. See Rubin, 637 F.3d at 800; see also Peterson, 627 F.3d at 1125 (execution immunity begins with "presumption that a foreign state is immune and then the plaintiff must prove that an exception to immunity applies"); see also 28 U.S.C. § 1609 (defendant sovereign's property "shall be immune... except as provided in sections 1610 and 1611" (emphases added)). In particular, the plaintiffs now
28 U.S.C. § 1610(g). The second is the commercial activity exception, which provides in relevant part that
28 U.S.C. § 1610(a)(7). And the third exception the plaintiffs press to us is section § 201 of the Terrorism Risk Insurance Act (TRIA), which provides in relevant part that
28 U.S.C. § 1610 note.
To preserve an argument on appeal a party must raise it both in district court and before us. Odhiambo v. Republic of Kenya, 764 F.3d 31, 35 (D.C. Cir. 2014) ("[Plaintiff] does not renew [his FSIA exception] argument on appeal, so we do not consider it."). The party must brief the issue with specificity. See Railway Labor Executives' Ass'n v. U.S. R.R. Retirement Bd., 749 F.2d 856, 859 n.6 (D.C. Cir. 1984).
Regarding the terrorist activity exception, the plaintiffs made minimal reference thereto both in district court and in their opening appellate brief. In its motion opposing extended discovery, ICANN argued that "the FSIA divests this Court of subject matter jurisdiction," ICANN's Opp. to Pls.' Mot. for Six-Month Discovery at 8, to which the plaintiffs responded, inter alia, that "Section 1610(g) [removes immunity from] property of a foreign state against which judgment is entered under 1605A," and that "ICANN completely ignores Section 1610(g)." Reply in Supp. of Pls.' Mot. for Discovery 19 & n.13. On appeal the plaintiffs noted that we have "federal question jurisdiction" under "28 U.S.C. § 1610" and included as an addendum the text of section 1610(g). Appellants' Br. at 1, a3.
Ordinarily we might find these "fleeting statement[s]" insufficiently developed to preserve the argument, see Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008), but the terrorist activity exception is, simply put, different. Once a section 1605A judgment is obtained, section 1610(g) strips execution immunity from all property of a defendant sovereign. There is no genuine dispute that four of the plaintiffs' judgments were entered or converted under 1605A.
Four of the seven underlying judgments, Haim II, 784 F.Supp.2d 1 (D.D.C. 2011);
The two remaining exceptions are easily disposed of.
Finally, we consider the plaintiffs' claim to the IP addresses under all of the three exceptions. The district court did not reach the IP addresses. The plaintiffs contend that its silence amounts to an abuse of discretion but the district court's failure to discuss the IP addresses is easily explained. In their self-styled "preliminary response" to ICANN's motion to quash and their accompanying motion for extended discovery, the plaintiffs only twice referenced the IP addresses — once to claim "ICANN has presented virtually no facts concerning its role in the distribution of IP addresses or the ownership and value of IP addresses" and once to claim that "ICANN's Motion to Quash does not address the economic value of IP addresses." Pls.' Response to ICANN's Mot. to Quash at 7, 9. By contrast, the plaintiffs' same submissions (their preliminary response and their discovery motion) referenced the ccTLDs 78 times, replete with allegations regarding ownership, monetary value and ICANN's administrative role. In light of
To sum up, those plaintiffs seeking to attach the underlying judgments in Haim I, Weinstein and Stern have forfeited their claims in toto. Those plaintiffs seeking to attach the underlying judgments in Haim II, Rubin, Wyatt and Calderon-Cardona have forfeited all but their claim grounded in the terrorist activity exception to attachment immunity.
To this point we have assumed arguendo that D.C. law does not impede the plaintiffs' pursuit of the defendant sovereigns' ccTLDs. Moreover, the Haim II, Rubin, Wyatt and Calderon-Cardona plaintiffs have not forfeited reliance on the terrorist activity exception to attachment immunity vis-à-vis the ccTLDs. See 28 U.S.C. § 1610(g). Ordinarily, remand would be in order to allow the plaintiffs to continue discovery in an effort to establish whether the ccTLDs can properly be considered "property of" the defendants under the FSIA. See 28 U.S.C. § 1610(g)(1); Heiser v. Islamic Republic of Iran, 735 F.3d 934 (D.C. Cir. 2013). Many critical issues remain disputed.
We assume without deciding that the ccTLDs the plaintiffs seek constitute "property" under the FSIA and, further, that the defendant sovereigns have some attachable ownership interest in them. Nonetheless, pursuant to the terrorist activity exception, the court has the "authority" to "prevent appropriately the impairment of an interest held by a person who is not liable in the action giving rise to a
The plaintiffs demand, in effect, that ICANN delegate management of the ".ir" ccTLD
First, requiring ICANN to delegate ".ir" to the plaintiffs would bypass ICANN's process for ccTLD delegation, which includes ensuring that the incoming manager has technical competence and a commitment to serving the Iranian Internet community's interests. The plaintiffs and, more importantly, their prospective designee may not possess that technical competence or commitment. Granted, the plaintiffs are "aware that the ... court can — and should — protect the interests of third parties" and they "welcome the opportunity to work together with the district court and ICANN to ensure a smooth transition." Appellants' Reply Br. at 26. But even if the plaintiffs are able to show adequate competence and commitment, the act of forced delegation itself impairs ICANN's interest in "protect[ing] the stability... [and] interoperability ... of the DNS." Decl. of John O. Jeffrey, App'x 24.2 ¶ 5.
Recall that a change in the root zone file will only affect the routing of a search for ".ir." But a change in the root zone file does not also transfer the information stored on the ccTLD server.
The impairment does not end there. As the plaintiffs recognize, ICANN occupies its position only because "the global community allows it to play that role." Appellants' Br. at 34 (emphasis added). "[T]he operators of ... top level domains" can "form a competitor to ICANN and agree to refer all DNS traffic to a new root zone directory." Id.; see also Br. for United States as Amicus Curiae at 13 ("As a technological matter, nothing prevents an entity outside the United States from publishing its own root zone file and persuading the operators of the Internet's name servers to treat that version as authoritative instead."). This result, known as "splitting the root," is widely viewed as a potentially disastrous development; indeed, some regard it as the beginning of "ultimate collapse of Internet stability" — a "doomsday scenario for the globally accessible" network and, thus, for ICANN. Harold Feld, Structured to Fail: ICANN and the `Privatization' Experiment, in WHO RULES THE NET?: INTERNET GOVERNANCE AND JURISDICTION 351 (Cato Inst. 2003). Whether that description of a split root is accurate need not concern us; ICANN's interests, as a third party "not liable in the action giving rise to [the] judgment," 18 U.S.C. § 1610(g)(3), are sufficient for us to protect them pursuant to section 1610(g)(3) of the FSIA. See Appellee's Br. at 34 ("[F]orced re-delegation of the Subject ccTLDs would ... wreak havoc on the domain name system."); see also Br. for United States as Amicus Curiae at 13 ("[T]he result would be devastating for ICANN, for the [current] model of Internet governance, and for the freedom and stability of the Internet as a whole.").
But given that the ICANN-administered DNS is the beneficiary of substantial network effects,
For the foregoing reasons, the judgment of the district court is affirmed.
So ordered.
In our view, application of Rule 69(a)(1) requires a preliminary determination, i.e., whether D.C. Code § 16-544 is in fact procedural. The answer may depend on an inquiry materially identical to the Supreme Court's so-called reverse-Erie precedent holding that the "general and unassailable proposition" that local "rules of procedure govern[] litigation" can be overcome if their application is "outcome-determinative." Felder v. Casey, 487 U.S. 131, 138, 141, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988). The "reverse-Erie" title is plainly a nod to the inquiry undertaken when a federal court hearing a state law claim must decide whether an issue is "substantive" — and thus determined by state law — or "procedural" and thus subject to the federal rules. See Hanna v. Plumer, 380 U.S. 460, 465, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965); see also Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 428, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) (applying Erie's "outcome-determinati[ve] test" with reference to "the twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws" (internal quotation marks omitted)). Here the proceedings involve a federal, not state, claim. This difference has little significance given Rule 69's broad directive to apply the procedure "of the state where the court is located." FED. R. CIV. P. 69(a)(1). But if, per reverse-Erie, a procedure is inapplicable in state court, it would not "accord with the procedure of the state" for the federal court to use that procedure. Id.
Granted, in dated cases regarding the scope of "Revised Statutes § 916" (RS 916) — a Rule 69 predecessor, see United States v. Yazell, 382 U.S. 341, 355, 86 S.Ct. 500, 15 L.Ed.2d 404 (1966), the Supreme Court in effect held that the Congress "adopted" all state laws bearing on execution, Fink v. O'neil, 106 U.S. 272, 277, 1 S.Ct. 325, 27 L.Ed. 196 (1882). But RS 916 and Rule 69 contain materially different language, making Fink inapposite. In addition, modern cases confirm that the Fink Court's wholesale adoption of state execution law is, like RS 916, a relic. In Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), faced with the assertion that a Georgia "state procedural device for collecting judgments" — garnishment — was in fact "substantive," the Court examined its features before confirming its procedural nature and resulting applicability via Rule 69. Id. at 834 n.10, 108 S.Ct. 2182 ("under Georgia law, postjudgment garnishment is nothing more than a method to collect judgments otherwise obtained" (second emphasis in original)).
The Supreme Court has consistently set aside state laws that materially impede the national government's conduct of foreign affairs, including disposition of foreign assets. In United States v. Belmont, the federal government sought to recover property in federal district court from a banker with whom a Russian corporation had deposited funds before the U.S.S.R.'s nationalization of all "property and assets of every kind and wherever situated, including the deposit account" in dispute. 301 U.S. 324, 326, 57 S.Ct. 758, 81 L.Ed. 1134 (1937). The United States rested its claim on an "international compact" with the Soviet government wherein the latter "released and assigned to [the United States] ... the deposit account." Id. at 326, 327, 57 S.Ct. 758. The district court held that, because the "bank deposit was within the state of New York ... in no sense could it be regarded as an intangible property right within the Soviet territory" and thus a "judgment for the United States ... would be contrary to the controlling public policy of the state of New York." Id. at 327, 57 S.Ct. 758. The Supreme Court did not "pause to inquire whether in fact there was any policy of the state of New York to be infringed" because, in foreign affairs, "state lines disappear.... [and] the state of New York does not exist." Id. at 327, 331, 57 S.Ct. 758 (emphasis added). Calling it "inconceivable" for any "[s]tate Constitutions, state laws, and state policies" to "be interposed as an obstacle to the effective operation of" the federal power, the Court reversed. Id. at 332, 57 S.Ct. 758; see also Pink, 315 U.S. at 231-33, 62 S.Ct. 552.
