Weinstein v. Islamic Republic of Iran

• Decision Date: 02 August 2016
• Docket Number: C/w 14-7194, 14-7195, 14-7198, 14-7202, 14-7203, 14-7204,No. 14-7193,14-7193
• Citation: 831 F.3d 470
• Parties: Susan Weinstein, individually as Co-Administrator of the Estate of Ira William Weinstein, and as Natural Guardian of Plaintiff David Weinstein (Minor), et al., Appellants v. Islamic Republic of Iran, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

831 F.3d 470

Susan Weinstein, individually as Co-Administrator of the Estate of Ira William Weinstein, and as Natural Guardian of Plaintiff David Weinstein (Minor), et al., Appellants

v.Islamic Republic of Iran, et al., Appellees

No. 14-7193

C/w 14-7194, 14-7195, 14-7198, 14-7202, 14-7203, 14-7204

United States Court of Appeals, District of Columbia Circuit.

Argued January 21, 2016

Decided August 2, 2016

Rehearing En Banc Denied September 19, 2016

Meir Katz, Baltimore, MD, argued the cause for the appellants. Robert J. Tolchin, Steven T. Gebelin and Scott M. Lesowitz, Los Angeles, CA, were with him on brief. Jeffrey A. Miller entered an appearance.

Noel J. Francisco argued the cause for the garnishee-appellee Internet Corporation for Assigned Names and Numbers. Tara Lynn R. Zurawski and Ryan J. Watson, Washington, DC, were with him on brief.

Benjamin C. Mizer, Principal Deputy Assistant Attorney General, United States Department of Justice, Beth S. Brinkmann, Deputy Assistant Attorney General, and Douglas N. Letter, Mark R. Freeman and Sonia K. McNeil, Attorneys, were on brief the for amicus curiae United States.

Before: Garland,^* Chief Judge, Henderson, Circuit Judge, and Randolph, Senior Circuit Judge.

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.) law. We affirm the district court but on alternative grounds.

I. Background

A. TECHNICAL

This case requires substantial explanation of the sought-after data.¹ The plaintiffs initiated these proceedings by serving multiple writs of attachment on ICANN seeking the country-code top level domain names (ccTLD) and Internet Protocol (IP) addresses of Iran, Syria and North Korea, respectively. Neither the ccTLD nor the IP address lends itself to easy description.

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).² The IP address is the appropriate starting point. Every device connected to the Internet and every web page on the Internet is identified by an IP address. The IP address appears as a string of numbers separated by periods, for example, “100.200.123.234.” It identifies the location, “i.e. , a particular computer-to-network connection” of an end-user's computer and also “serves as the routing address for ... requests to view a web page.” Id. The IP address is critical to the Internet's functioning in the same way a telephone number is essential to the functioning of the telecommunications system. One may dial a set of numbers to connect to other individuals through the telecommunications system and the same is true vis-à -vis an IP address and the Internet. Granted, an ordinary Internet end-user does not operate this way. For example, Google has the IP address “173.194.65.113” but few would maintain that entering that address in an Internet browser is the most practical way to access the Google web page. Instead, most end-users simply type “google.com” to access the Google web page.

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] domain name is not an address as typically understood but instead is a mark identifying a specific person's or organization's site on the Internet.” Thomas v. Network Solutions, Inc. , 176 F.3d 500, 503 n.2 (D.C. Cir. 1999)

. In order to reach the “site,” the user's domain name input must be “translate [d] ... into [a] numerical IP address,” Register , 356 F.3d at 410–11 & n.14, i.e. , the domain name must be “resolved,” Name.Space, Inc. v. Network Solutions, Inc. , 202 F.3d 573, 577 (2d Cir. 2000).

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.³The second part precedes the last dot—the second level domain (SLD); i.e. , “google” in the “google.com” example.

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).⁴ See Daniel Karrenberg, The Internet Domain Name System Explained for Non-Experts , in INTERNET GOVERNANCE: A GRAND COLLABORATION 23 (U.N. ICT Task Force 2004). The caching server knows the location of the web page if it has “cached” it, i.e. , “remembered it ... from a previous transaction.” Id. at 24. In that case the query does not go beyond the caching server because it directs the end-user to the desired location. Id. Thus, once an end-user has visited “google.com,” his caching server remembers the web page location for subsequent visits. And if the end-user has never visited the requested SLD—i.e. , never visited “google.com”—but has visited another “.com” web page (e.g. , “amazon.com”), the caching server recognizes the location of the TLD (“.com”), asks it for the location of the SLD (“google.com”) and then routes the end-user accordingly. Id. at 26–27.

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,”⁵ and “12 duplicate root zone servers,” Name.Space , 202 F.3d at 577

. In short, the caching server knows to go to the top of the DNS's “hierarchical tree structure.” Id. These thirteen servers—the top of the tree—know the location of all authoritative TLD servers and thus the caching server can locate “.com,” “.ir” or any other TLD by querying the DNS root servers. Once one of the root servers tells the caching server the “.com” location, the caching server can query that TLD for all SLDs within it and does not have to revisit the root servers for subsequent web page searches within the “.com” TLD.⁶ Thus the root servers form “a critical Internet chokepoint.” A. Michael Froomkin, Wrong Turn in Cyberspace , 50 DUKE L.J. 17, 50 (2000). To use the entire DNS, a caching server need know nothing more than the location of the DNS's thirteen root servers; the root servers, tied to the root zone file, permit any end-user to access all downstream domains.

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...