"Reach out and Touch Someone": The Growing Use of Domain Name Seizure as a Vehicle for the Extraterritorial Enforcement of U.S. Law
Mellyn, Jack, Georgetown Journal of International Law
I. 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
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.
II. 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. …