United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 21, 2016 Decided August 2, 2016

No. 14-7193

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

Consolidated with 14-7194, 14-7195, 14-7198, 

14-7202, 14-7203, 14-7204

Appeals from the United States District Court

for the District of Columbia

(No. 1:00-cv-02601)

(No. 1:02-cv-01811)

(No. 1:08-cv-00520)

(No. 1:01-cv-01655)

(No. 1:08-cv-00502)

(No. 1:00-cv-02602)

(No. 1:14-mc-00648)
2

Meir Katz argued the cause for the appellants. Robert J. 

Tolchin, Steven T. Gebelin and Scott M. Lesowitz were with 

him on brief. Jeffrey A. Miller entered an appearance. 

Noel J. Francisco argued the cause for the garnisheeappellee Internet Corporation for Assigned Names and 

Numbers. Tara Lynn R. Zurawski and Ryan J. Watson 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.

Opinion for the Court filed by Circuit Judge HENDERSON.

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

 ∗ Chief Judge Garland was a member of the panel at the time 

the case was argued but did not participate in this opinion.
3

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 soughtafter 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. 

 1 In district court, the parties apparently agreed that the motion 

to quash should be decided under Federal Rule of Civil Procedure 

12(b)(6). See Pls.’ Mot. for Six Month Discovery at 18 (describing 

ICANN’s motion and its timing as “akin to a defendant filing a 

Federal Rule 56 summary judgment motion at the very outset of a 

case”); ICANN’s Opp. to Pls’. Mot. for Six Month Discovery at 13 

n.3 (responding that “Motion to Quash is functionally identical to a 

Rule 12(b)(6) motion to dismiss”). We resolve all factual disputes 

accordingly, “accepting as true all of the factual allegations 

contained in the [plaintiffs’ submissions] and drawing all inferences 

in favor of” the plaintiffs. Autor v. Pritzker, 740 F.3d 176, 179 

(D.C. Cir. 2014) (alterations omitted). 
4

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 (2005). Thus, much of the DNS’s value lies in 

its ability to enable an end-user, with a domain name in hand, 

 2 We hereinafter use “end-user” to refer to an individual 

seeking to access a web page on the Internet through an Internet 

browser.
5

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.3

 The 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

 3 The plaintiffs also sought to attach the defendants’ 

internationalized TLDs—TLDs that appear in a country’s languagespecific font—i.e., “.ناريا “for Iran. For simplicity, and because 

the parties do not treat them differently, we use the term “ccTLDs” 

to refer to both the conventional and the internationalized ccTLDs. 
6

“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 

 4 As its name suggests, an ISP is “an entity that provides 

access to the Internet.” Register, 356 F.3d at 410 n.13. Every 

individual “Web [page], company, university, and government 

agency that utilizes Internet access . . . subscribes to an ISP or is 

one.” Id. at 410 n.13. Commonly-used ISPs include Comcast and 

Verizon. 
7

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, 

 5 The root zone file is a file that “contains information on the 

TLDs within the [DNS] and the location of . . . those TLDs.” Stern, 

73 F. Supp. 3d 46, 49 (D.D.C. 2014). According to the DNS, the 

thirteen root servers are “authoritative” because they reflect the 

information contained in the root zone file. 

6 Nevertheless, in reality, a caching server regularly discards 

its cached information and revisits the root servers to ensure it has 

current information. 
8

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” without first locating “.com”—the root 

zone file effectively enables an end-user to access most

existing Internet web pages. Any TLD not “listed in the 

root . . . become[s] effectively invisible,” id. at 47, keeping

both that TLD and its registered SLDs beyond the reach of a 

typical end-user. 

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 
9

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 redelegation.7

 

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 

 7 Pursuant to ICANN publications, it is “expected that relevant 

local governments are consulted” but it is “not a requirement that 

they consent.” See Common Questions on Delegating and 

Redelegating Country-Code Top-Level Domains (ccTLDs), 

IANA.ORG, https://www.iana.org/help/cctld-delegation-answers 

(last visited July 7, 2016). 
10

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 redelegations 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.

8

 

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 to end-users and web page

operators. Once a website operator obtains an IP address, its 

web page becomes Internet-accessible. In the usual course, 

the operator then acquires and links a domain name to the 

web page in order to use the DNS.

B. PROCEDURAL

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 

 8 But see Br. for United States as Amicus Curiae at 6 

(describing government role as “largely symbolic” in that it is 

“limited to ensuring that ICANN has followed appropriate 

processes and avoided technical errors”); see also id. (“The policy 

of the United States is that the Internet’s [DNS] should be free from 

the control of any government, including our own.”).
11

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),9

alleged that Iran sponsored the organization—HAMAS—

which detonated a bomb that killed the plaintiffs’ kin. A 

default judgment was awarded pursuant to the state-sponsored 

terrorism exception and 28 U.S.C. § 1608 (“No judgment by 

default shall be entered . . . unless the claimant establishes his 

claim or right to relief by evidence satisfactory to the 

court.”). This suit is the latest—although not the only10—

attempt to recover on the various judgments.

On June 24, 2014 the plaintiffs served writs of 

attachment on ICANN seeking the defendants’ ccTLDs and 

 9 This provision has been updated and re-codified at 28 U.S.C. 

§ 1605A, see infra nn.21, 22. 

10 See, e.g., Calderon-Cardona v. Bank of New York Mellon, 

770 F.3d 993 (2d Cir. 2014) (failed attempt to attach North Korean 

electronic funds transfers in American banks); Rubin v. Islamic 

Republic of Iran, 709 F.3d 49 (1st Cir. 2013) (failed attempt to 

attach alleged Iranian antiquities in American museums).
12

“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.

11 

After two months of discovery, the plaintiffs sought a sixmonth extension arguing that ICANN had produced limited 

information and that further discovery was needed regarding,

as relevant here, ICANN’s contention that ccTLDs and IP 

addresses are not “property.” In support thereof, the plaintiffs 

submitted the declaration of one of their counsel who 

memorialized a discussion he had conducted with an expert 

on Internet infrastructure and DNS operators. According to 

the declarant, ICANN “ha[s] a monopoly or complete control 

over the ‘root zone’ such that ICANN is wholly and solely 

responsible for the mapping of [ccTLDs] to their respective 

registries/name servers.” Decl. of Steven T. Gebelin at 3, 

App’x 51 (Gebelin Decl.). Also according to the declarant, 

the alleged expert explained that ICANN had in the past 

“changed and redirected who runs certain ccTLDs . . . in 

 11 ICANN initially argued that the writs themselves were 

invalid because they were not court-issued. See ICANN’s 

Objections and Verified Answers to Writ of Attachment 

Interrogatories at 3, Dkt. No. 88 (“ICANN objects to the Writ of 

Attachment and each and every Interrogatory on the grounds, and 

in that, they were not properly executed by the Court, as is required 

by the Foreign Sovereign Immunities Act.”). See 28 U.S.C. 

§ 1610(c) (“no attachment or execution . . . shall be permitted until 

the court has ordered such attachment and execution after having 

determined that a reasonable period of time has elapsed following 

the entry of judgment”). The district court did not address the

argument and ICANN has not pursued it on appeal. 
13

conjunction with the ‘monetization’ of the ccTLDs by their 

respective governments, including instances where the 

governments transferred control away from academic 

communities to government approved third parties that 

acquired contractual property rights to exploit the ccTLD and 

generate revenue.” Id. In short, the alleged expert opined that 

ccTLDs are property that a sovereign can own and monetize

and that ICANN has unbridled authority to redelegate them. 

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-

544,12 Stern, 73 F. Supp. 3d at 50–51; accordingly, the court 

concluded that “there [we]re no factual disputes that require 

further consideration” and denied as moot the plaintiffs’ 

motion for extended discovery. Id. at 51 n.3. On appeal the 

plaintiffs challenge the district court’s interpretation of D.C. 

law and suggest certification to the D.C. Court of Appeals

pursuant to D.C. Code § 11–723(a) (“The District of 

Columbia Court of Appeals may answer questions of law 

certified to it by . . . a Court of Appeals of the United 

States.”). They also claim that the district court abused its 

discretion in denying further discovery. Our jurisdiction is 

based on 28 U.S.C. § 1291.

 12 D.C. Code § 16–544 provides that “[a]n attachment may be 

levied upon the judgment debtor’s goods, chattels, and credits.”
14

II. Analysis

A. ATTACHMENT IMMUNITY UNDER FSIA § 1609

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 (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 (1989). The statute establishes “two kinds of 

immunity” for a foreign sovereign. Republic of Argentina v. 

NML Capital, Ltd., 134 S. Ct. 2250, 2256 (2014). First, as a 

matter of “subject matter jurisdiction,” Verlinden, 461 U.S. at 

489, the FSIA establishes immunity from suit in “the courts of 

the United States and of the States,” 28 U.S.C. § 1604. The 

seven judgments obtained were awarded pursuant to the statesponsored terrorism exception to the defendant sovereigns’ 

immunity from suit, 28 U.S.C. § 1605A. See supra at 10–

11.

13 Second, it establishes immunity from “attachment[,]

 13 The judgments in Haim I, Weinstein and Stern were entered 

under the former state-sponsored terrorism exception, 28 U.S.C. 

§ 1605(a)(7), but those plaintiffs did not convert their judgments to 

the exception’s current version, 28 U.S.C. § 1605A. The plaintiffs 

concede this point and do not argue for its application to their 

respective judgments. See Appellants’ Reply Br. at 23–24

(asserting only Haim II, Rubin, Wyatt and Calderon-Cardona 

judgments were entered or converted under section 1605A); see 

also Appellee’s Br. at 50 (Haim I, Weinstein and Stern “were 

neither entered nor converted to a judgment under § 1605A.”). A 

judgment entered under former 1605(a)(7) does not—without 

conversion—trigger section 1610(g). See infra at 21–24. 
15

arrest and execution,” 28 U.S.C. § 1609.

14 

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).

15 We follow suit and 

 14 28 U.S.C. § 1609 provides in relevant part that “the property 

in the United States of a foreign state shall be immune from 

attachment arrest and execution except as provided in sections 1610 

and 1611 . . . .”

15 One circuit has reached a contrary result, see FG 

Hemisphere Assocs. v. Republique du Congo, 455 F.3d 575, 590–
16

reject ICANN’s challenge to the district court’s subject matter 

jurisdiction.

B. FEDERAL RULE OF CIVIL PROCEDURE 69(a) AND D.C.

CODE § 16–544

Applying the reasoning of the Virginia Supreme Court in 

Network Solutions, Inc. v. Umbro Int’l, Inc., 259 Va. 759 

(2000), the district court observed;

[t]he ccTLDs exist only as they are made 

operational by the ccTLD managers that 

administer the registries of second level 

domain names within them and by the parties 

that cause the ccTLDs to be listed on the root 

zone file. A ccTLD, like a domain name, 

 

91 (5th Cir. 2006), but did so relying, in our view, on inapposite 

precedent. The FG Hemisphere court cited a trio of Supreme Court 

FSIA cases to inform its analysis of section 1609 but they 

addressed only the Act’s immunity from suit provision, 28 U.S.C. 

§ 1604. Granted the Fifth Circuit also cited Schooner Exchange v. 

McFaddon, 11 U.S. 116 (1812), for the proposition that “American 

courts ha[ve] no jurisdiction over” a foreign sovereign’s property, 

FG Hemisphere, 455 F.3d at 590 (emphasis added). In Schooner 

Exchange the Court held that certain property of France was 

“exempt from the jurisdiction of” our courts, Schooner Exch., 11 

U.S. at 147, and the case is “generally viewed as the source of our 

foreign sovereign immunity jurisprudence,” Republic of Austria v. 

Altmann, 541 U.S. 677, 688 (2004). It is inapposite here, however,

because it involved an attempt to exercise in rem jurisdiction 

despite the plaintiff’s not having obtained a valid judgment against 

France. Schooner Exch., 11 U.S. at 117. FSIA sections 1609–

1611—those governing attachment—operate only after the award 

of a valid judgment. See H.R. Rep. 94-1487 at 26 (1976), reprinted 

in 1976 U.S.C.C.A.N. 6604, 6625 (“[S]ection 1609 has the effect of 

precluding attachment as a means for commencing a lawsuit.”).
17

cannot be conceptualized apart from the 

services provided by these parties. The Court 

cannot order plaintiffs’ insertion into this 

arrangement. 

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 51.16 Accordingly, 

the district court quashed the writs of attachment under local 

law, interpreting FED. R. CIV. P. 69(a) to require its 

application. See Stern, 73 F. Supp. 3d at 49–50.

17 

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.

18 In addition, we assume without so 

 16 As explained infra at 26–27, the district court did not 

address the IP addresses.

17 The district court denied the plaintiffs’ discovery motion as 

moot. See id. at 51 n.3. We affirm for the same reason.

18 Although we assume the applicability of D.C. Code § 16–

544, we nonetheless have reservations about its applicability. 

Federal Rule of Civil Procedure 69(a)(1) (“The procedure on 
18

 

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.”) contains significant limiting language. It incorporates 

only local procedure. There are precious few federal rules of

procedure for execution of judgments; the draftsmen evidently 

“decided . . . to borrow the format employed in the courts of the 

forum state,” Resolution Trust Corp. v. Ruggiero, 994 F.2d 1221, 

1226 (7th Cir. 1993), at least in part to enable a plaintiff to execute 

on a federal judgment, see, e.g., United States v. Harkins Builders, 

Inc., 45 F.3d 830, 833 (4th Cir. 1995) (“Even though we look to 

state law to determine the . . . procedure to be followed . . . we do 

so in furtherance of federal law, giving effect to rules entitling 

parties to enforce federal judgments in federal courts.”); cf. 

Peacock v. Thomas, 516 U.S. 349, 359 (1996) (“[T]he Federal 

Rules of Civil Procedure provide fast and effective mechanisms for 

execution” in order “[t]o protect and aid the collection of a federal 

judgment.” (emphases added)). 

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 (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 (1965); see 

also Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 428 

(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 
19

holding that local law does not operate to bar attachment of 

the defendant sovereigns’ ccTLDs.19 

 

“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 (1966), the Supreme Court in effect 

held that the Congress “adopted” all state laws bearing on 

execution, Fink v. Oneil, 106 U.S. 272, 277 (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 

(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 (“under Georgia law, postjudgment garnishment is nothing 

more than a method to collect judgments otherwise obtained” 

(second emphasis in original)). 

19 Assuming, again without deciding, that Rule 69(a)(1) can 

be interpreted to incorporate a local law attachment bar, execution 

on a FSIA judgment requires caution for another reason. “[A]ctions 

against foreign sovereigns in our courts raise sensitive issues 

concerning the foreign relations of the United States.” Verlinden, 

461 U.S. at 493. Moreover, the conduct of our nation’s foreign 

affairs, if not “vested in the national government exclusively,” 

United States v Pink, 315 U.S. 203, 233 (1942), nonetheless 

restricts “[a]ny concurrent state power . . . to the narrowest of 

limits,” Hines v. Davidowitz, 312 U.S. 52, 68 (1941). If a state 

court’s application of a bar on property alienation vis-à-vis a 

foreign sovereign represents an unconstitutional “intrusion by the 

State into the field of foreign affairs,” Zschernig v. Miller, 389 U.S. 
20

C. FSIA’S EXEMPTIONS TO EXECUTION IMMUNITY

Although attachment immunity is not “jurisdictional,” it 

is nonetheless a “default presumption” that the judgment 

 

429, 430, 432 (1968) (concluding Oregon law providing property

of deceased resident escheats if government of nonresident alien 

heirs prohibited inheritance without interference unconstitutionally 

intruded on foreign affairs), it can be argued that a federal court’s 

similar application via Rule 69(a) would not “accord with the 

procedure of the state,” FED. R. CIV. P. 69(a), at least, not with a

procedure that is—in this arena—constitutional.

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 (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. 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. 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 (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; see also Pink, 315 U.S. at

231–33. 
21

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

20 rely on one or more of three exceptions. The 

first is the terrorist activity exception, which provides in 

relevant part that 

[T]he property of a foreign state against which 

a judgment is entered under section 1605A,

21

and the property of an agency or 

instrumentality of such a state, including 

property that is a separate juridical entity or is 

an interest held directly or indirectly in a 

separate juridical entity, is subject to 

attachment in aid of execution, and execution, 

upon that judgment as provided in this section, 

regardless of—

 20 ICANN contends that the plaintiffs forfeited or waived

reliance on any exception to attachment immunity by failing either 

to raise the issue adequately in district court or to brief it on appeal. 

See infra at 25–26.

21 Section 1605A is the state-sponsored terrorism exception to 

a foreign sovereign’s general jurisdictional immunity. It abrogates 

suit immunity if “money damages are sought against a foreign state 

for personal injury or death that was caused by an act of torture, 

extrajudicial killing, aircraft sabotage, hostage taking, or the 

provision of material support or resources for such act.” 28 U.S.C. 

§ 1605A(a)(1). Courts “shall” hear claims brought under this 

section if “the foreign state was designated as a state sponsor of 

terrorism at the time the [aforementioned terrorist act] occurred, or 

was so designated as a result of such act.” Id. § 1605A(a)(2)(A). 
22

(A) the level of economic control over the 

property by the government of the foreign 

state;

(B) whether the profits of the property go to 

that government;

(C) the degree to which officials of that 

government manage the property or otherwise 

control its daily affairs;

(D) whether that government is the sole 

beneficiary in interest of the property; or

(E) whether establishing the property as a 

separate entity would entitle the foreign state 

to benefits in United States courts while 

avoiding its obligations.

28 U.S.C. § 1610(g). The second is the commercial activity 

exception, which provides in relevant part that

The property in the United States of a foreign 

state . . . used for a commercial activity in the 

United States, shall not be immune from 

attachment in aid of execution, or from 

execution, upon a judgment entered by a court 

of the United States or of a State . . . if the 

judgment relates to a claim for which the 

foreign state is not immune under section 

1605A or section 1605(a)(7) (as such section 

was in effect on January 27, 2008),

22

regardless of whether the property is or was 

 22 Section 1605(a)(7), as it read on January 27, 2008, is 

materially identical to current section 1605A. 
23

involved with the act upon which the claim is 

based.

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

[I]n every case in which a person has obtained 

a judgment against a terrorist party on a claim 

based upon an act of terrorism, or for which a 

terrorist party is not immune under section 

1605A of [the FSIA] . . . , the blocked assets of 

that terrorist party . . . shall be subject to 

execution or attachment in aid of execution in 

order to satisfy such judgment to the extent of 

any compensatory damages for which such 

terrorist party has been adjudged liable. 

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 
24

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.23 Granted, the plaintiffs must show that the 

assets in question are “property of” the foreign sovereign, 28 

U.S.C. § 1610(g), whether Iran, North Korea or Syria. In our 

view, there is no additional “argument” that must be 

preserved. See Odhiambo, 764 F.3d at 35. To the extent the 

plaintiffs must establish that the data at issue are “property” 

that each defendant has at least some ownership interest in, 

those matters were the subject of additional discovery 

requests (ultimately deemed moot by the district court) and so 

it would be premature for us to decide that their attachability 

is forfeited on that basis. On appeal the plaintiffs included the 

exception in their opening brief addendum and this was 

sufficient to put both us and ICANN on notice that they 

continued to rely on that exception. 

 23 See, e.g., Rubin v. Islamic Republic of Iran, 563 F. Supp. 2d 

38, 39 n.3 (D.D.C. 2008) (giving effect to plaintiff’s judgment “as 

if the action had originally been filed under section 1605A(c).”). 

Cf. supra n.13. Accord Heiser, 735 F.3d at 937 n.4. 
25

Four of the seven underlying judgments, Haim II, 784 F. 

Supp. 2d 1 (D.D.C. 2011); Campuzano v. Islamic Republic of 

Iran, 281 F. Supp. 2d 258 (D.D.C. 2003) (Rubin); Wyatt v. 

Syrian Arab Republic, 908 F. Supp. 2d 216 (D.D.C. 2012); 

Calderon-Cardona v. Democratic People’s Republic of 

Korea, 723 F. Supp. 2d 441 (D.P.R. 2010), were entered 

under section 1605A. ICANN, however, argues that “the 

plaintiffs presented no explanation or evidence” regarding 

these judgments. Appellee Br. at 49 (quotation marks 

omitted). We are at a loss to discern what “evidence” the 

plaintiffs would be required to show under ICANN’s 

approach, particularly given that ICANN does not appear to

dispute that four judgments were entered under section 

1605A. Id. at 50 (“[The terrorist activity exception] is clearly 

inapplicable to three of the seven underlying judgments at 

issue here.”). Therefore, the plaintiffs have not forfeited

reliance on the terrorist activity exception to attachment 

immunity regarding the Haim II, Wyatt, Rubin and CalderonCardona judgments.

The two remaining exceptions are easily disposed of.

24 

There is no reference to the commercial activity exception in 

the plaintiffs’ opening brief notwithstanding ICANN 

vigorously contested in district court whether the three

ccTLDs were “used for a commercial activity in the United 

States.” 28 U.S.C. § 1610(a); see ICANN’s Mot. to Quash at

18 (“ICANN is aware of no evidence that the [ ] ccTLDs are 

used for commercial activity of the defendants in the United 

States.”). The plaintiffs rebutted this assertion in district 

court, see Reply in Supp. of Pls.’ Mot. for Discovery at 19 

(“[T]he Internet Assets at issue are used for commercial 

 24 The commercial activity exception covers all seven 

judgments and the TRIA exception applies only to the judgments 

obtained in Weinstein, Haim I and Stern.
26

activity in the United States and the United States is the situs. 

For example, a .ir second level domain can be purchased in 

the United States for approximately $100.”), but on appeal 

they failed even to reference their objection in their opening 

brief. See Appellants’ Br. at 1–2 (“[I]ssues presented” 

includes only whether the assets are attachable property under 

D.C. law, whether the district court erroneously failed to 

allow additional discovery and whether we should pursue 

certification to the D.C. Court of Appeals). Their failure to 

brief the issues in their opening brief amounts to forfeiture. 

Odhiambo, 764 F.3d at 35. Their reliance on the TRIA 

exception likewise merits no close analysis. Notwithstanding 

the section 1605A plaintiffs need only to identify “the 

blocked assets” of the defendant sovereigns under this 

exception, 28 U.S.C. § 1610 note, they failed to raise the issue 

in district court. 

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 the plaintiffs’ 
27

omission of any argument touching on the IP addresses, the 

district court did not abuse its discretion in omitting to discuss 

them. On appeal, Amicus United States expressly doubted 

whether the plaintiffs had “preserved . . . arguments about IP 

addresses,” Br. for United States as Amicus Curiae at 19,

which assertion the plaintiffs left unrebutted, see Br. for 

Appellants in Response to the United States as Amicus 

Curiae. We consider it waived on appeal. See United States 

v. Olano, 507 U.S. 725, 733 (1993) (“Whereas forfeiture is 

the failure to make the timely assertion of a right, waiver is 

the intentional relinquishment or abandonment of a known 

right.”) (emphasis added and internal quotations omitted). 

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. 

D. PROTECTION OF THIRD PARTY INTERESTS UNDER SECTION 

1610(G)(3)

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 visà-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 
28

of Iran, 735 F.3d 934 (D.C. Cir. 2013). Many critical issues 

remain disputed.

25 

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 

 25 For example, ICANN contends that the defendants do not 

own the .ir, .kp and .sy ccTLDs and that ICANN is therefore

powerless to effect an attachment thereof. As discussed supra at. 

12–13, the plaintiffs submitted a declaration regarding their 

counsel’s discussion with an “internet infrastructure management 

and domain name systems operations and development expert” 

suggesting that ICANN had in the past “changed and redirected 

who runs certain ccTLDs . . . in conjunction with the ‘monetization’ 

of the ccTLDs by their respective governments, including instances 

where the governments transferred control away from academic 

communities to government approved third parties that acquired 

contractual property rights to exploit the ccTLD and generate 

revenue.” Gebelin Decl. at 2–3. There is also record evidence 

regarding the nation of Tuvalu’s monetization of its .TV ccTLD by 

sale or lease of its ccTLD management rights to a private company 

for millions of dollars. On the other hand, ICANN contends that 

ccTLDs are not property at all because they are “not an interest 

capable of precise definition, because [they are] always in flux,” 

Appellee’s Br. at 12, and that “there is, in fact, no established 

market within which ccTLDs are purchased and sold,” id. at 13–14. 

They also argue that no one has the requisite control over ccTLDs 

in order to establish ownership and that, in any event, 

“[a]uthoritative Internet protocol standards declare that concerns 

about rights and ownership of domains are inappropriate.” Id. at 

12. Finally, the United States as amicus argues that the internet 

governance community “explicitly rejects efforts to assert property 

rights in [ccTLDs].” Br. for United States as Amicus Curiae at 11. 
29

person who is not liable in the action giving rise to a 

judgment”—i.e., we are expressly authorized to protect the

interests of ICANN and other entities. 28 U.S.C. 

§ 1610(g)(3).

26 Because of the enormous third-party interests 

at stake—and because there is no way to execute on the 

plaintiffs’ judgments without impairing those interests—we 

cannot permit attachment.27 

The plaintiffs demand, in effect, that ICANN delegate 

management of the “.ir” ccTLD28 so that they can “sell or 

license the operation of the ccTLD[] to a third party.”

Appellants’ Reply Br. at 26. As explained, the power to 

operate a ccTLD includes the power to register (or remove) 

domain names from that registry. Thus, an entity seeking a

 26 Although the two FSIA exceptions to attachment immunity 

the plaintiffs have either forfeited or waived do not include a 

similar provision, this case does not turn on forfeiture/waiver. Only 

the terrorist activity exception permits attachment “regardless of,” 

inter alia, “whether th[e] [defendant] government is the sole 

beneficiary in interest of the property,” 28 U.S.C. § 1610(g)(1)(D). 

And according to the expressio unius est exclusio alterius canon of 

statutory construction, that the terrorist activity exception expressly 

provides for attachment of such property suggests that the other 

exceptions require that the defendant sovereign have a more 

complete ownership interest. Although we express no view on 

whether and to what extent the defendant sovereigns, ICANN or 

any other party can “own” the ccTLDs, it seems plain that 

satisfying the other exceptions requires a more substantial 

ownership interest than does this exception.

27 Moreover, although we do not find it necessary to reach the 

issue, the United States may be a necessary party hereto and, if so, 

this fact would provide another reason for quashing the writs of 

attachment. Arizona v. California, 298 U.S. 558, 571–72 (1936).

28 We use “.ir” (Iran) as an example to illustrate the interests at 

stake. 
30

“.ir” domain name will have to register through the plaintiffs 

or their designee—a process in which the ccTLD manager can 

extract a fee. The plaintiffs’ plan plainly impairs the interests 

of “person[s] who [are] not liable in the action giving rise to 

[the] judgment” in myriad ways. 18 U.S.C. § 1610(g).

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.

29 To ensure that any delegation occurs 

 29 For example, assume there is now a web page with the 

domain name “example.ir,” meaning that the SLD “example” is 

registered within the “.ir” ccTLD. An end-user searching for 

“example.ir” reaches the web page by first querying the root servers 

for “.ir” and then the “.ir” server for the “example.ir” domain. The 

“.ir” server directs the end-user to “example.ir” because it knows 

the location of “example.ir,” that is, “example.ir” is registered 

within it. But, we may also assume, this web page is not currently 
31

seamlessly, ICANN requires that the incoming manager 

provide a plan to preserve the stability of the ccTLD, which

plan explains how existing registrants will be affected. 

According to ICANN, the current ccTLD managers in the 

defendant countries will not voluntarily transfer information 

regarding their registrants and, because the relevant servers 

are located abroad, we are powerless to so require them. If 

ICANN is required to direct an end-user looking for “.ir” web

pages to the plaintiffs’ server but the plaintiffs are unable to 

direct them to the requested SLD, the Internet’s stability and 

interoperability are undermined.

30 

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, 

 

registered within the plaintiffs’ server which, post-delegation, 

would “host” the “.ir” ccTLD. Before the SLD is so registered, an 

end-user searching for “example.ir” is not able to reach the web 

page. Although it would remain accessible through the old “.ir” 

server (i.e., Iran’s server), the root servers, as a result of the 

delegation, would no longer direct queries there. 

30 The plaintiffs do not allege that a particular ccTLD 

management has ever been transferred without the cooperation of 

the outgoing manager. Cf. Gebelin Decl. at 6, App’x at 54 (alleging 

Tuvalu transferred management of its ccTLD to monetize its

interest).
32

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,31 how could such a

doomsday scenario arise? And why would forced delegation 

 31 “In markets characterized by network effects, one product or 

standard tends towards dominance, because the utility that an enduser derives from consumption of the good increases with the 

number of other agents consuming the good.” United States v. 

Microsoft Corp, 253 F.3d 34, 49 (D.C. Cir. 2001) (internal 

quotations omitted). Here, the ICANN-administered DNS and the 

authoritative root zone file “tend towards dominance” because 

domain name registries “and end-users have powerful economic 

incentives to remain compatible and connected with each other.” 

Milton J. Mueller, Competing DNS Roots: Creative Destruction or 

Just Plain Destruction, 3 J. NETWORK IND. 313, 315 (2002). 
33

hasten its arrival?32 In light of the plaintiffs’ recognition that 

ICANN’s control “stems only from the fact that the global 

community allows it to play that role,” Appellants’ Br. at 34, 

and considering that the delegation of the three defendant 

sovereigns’ ccTLDs could likely antagonize the global 

community, see Br. for United States as Amicus Curiae at 13 

(“It is not difficult to imagine that a court-ordered change to 

the authoritative root zone file at the behest of private 

plaintiffs would prompt members of the global Internet

community to turn their backs on ICANN for good.”), we 

believe the doomsday scenario is not beyond imagining.

33 

 32 As others have explained, “the deck is stacked so heavily in 

favor of an established root” that splitting is likely to occur only if 

“the existing root is doing something seriously wrong.” Competing 

DNS Roots, supra n.31, at 315. 

33 As noted earlier, an end-user ISP ordinarily uses DNS 

protocols to ask the root servers for the location of one of the 

DNS’s TLDs. But there is no technological barrier binding ISPs to 

the DNS. A sovereign has authority over ISPs operating in its 

country and can “act[] unilaterally to redirect Internet traffic” for 

end-users within its borders “by requiring Internet service 

providers . . . to use what amounts to [that] government’s own 

DNS.” Harold Feld, Structured to Fail: ICANN and the 

‘Privatization’ Experiment, in WHO RULES THE NET?: INTERNET 

GOVERNANCE AND JURISDICTION 354 (Cato Inst. 2003). For 

example, a foreign government can require that, when receiving a 

query for a particular TLD, an ISP operating within its borders not 

direct that query to a root server but rather to a different location 

altogether. If ICANN delegates management of “.ir” to the 

plaintiffs and the plaintiffs control where a query for “.ir” SLDs is 

directed, Iran has a powerful incentive to require its ISPs to bypass 

the root servers altogether and instead require ISPs to direct queries 

to the server that formerly hosted the “.ir” ccTLD. Under that 

circumstance, end-users in Iran and other parts of the world might 

access different web pages by querying identical domain names. 
34

For the foregoing reasons, the judgment of the district 

court is affirmed.

So ordered.

 

And there is no reason to suppose that “members of the global 

Internet community [would not] turn their backs on ICANN for 

good.” Br. for United States as Amicus Curiae at 13. For example, 

another sovereign whose citizens do business through web pages 

registered under the former “.ir” ccTLD might no longer permit 

their ISPs to search the root servers for “.ir” SLDs. Whether or not 

this possibility is a positive development for the Internet, it 

unquestionably impairs ICANN’s interests in “protect[ing] the 

stability . . . [and] interoperability . . . of the DNS,” Decl. of John 

O. Jeffrey, App’x 24.2 ¶ 5.