Whether or not someone can find the exact phrase one wants in Google is irrelevant to the context here.
The clause would come up in a situation in which ICANN were to seek enforcement of the contract through the arbitration provisions.
At that point, then an arbitrator is going to have to decide which of these things is true:
1. ICANN intended the registry to comply with demands made by the national weather service of Lesotho, but not the Supreme Court of Brazil, or
2. The overall intention of the clause is that the registry needs to comply with "
applicable" laws and the processes of various authorities having appropriate jurisdiction, since we seem to be eliding the preceding appearance of the word "applicable".
As to the "OMG! A court order is not necessary!", there are a variety of matters within the enforcement jurisdiction of various law enforcement agencies and administrative agencies.
For example, not long ago, I filed a complaint with the Washington State Office of the Insurance Commissioner because Epik, a company in Washington, was selling insurance without a license. As a company doing business in Washington, Epik is under the jurisdiction of that agency of the State of Washington insofar as they advertise the sale of insurance. The Washington insurance commissioner began an administrative investigation and ultimately obtained a consent order under which Epik paid a fine and had to stop selling insurance:
https://domainnamewire.com/wp-content/7678.pdf
Now, if you look at that document, you will see it is not a "court order". It is, however, a lawful order which issued in the course of an administrative proceeding within the jurisdiction and authority of the State of Washington Office of Insurance Commissioner.
It is an
administrative order issued to a Washington business selling insurance in Washington, which is in the jurisdictional scope of the Washington State Commissioner of Insurance.
It is worth pointing out that there are two components to "jurisdiction". The first is (a) whether the authority extends to the physical location of the persons or activities involved, called "personal jurisdiction", and (b) whether the subject matter of the action is within the scope of the authority involved, called "subject matter jurisdiction".
But, yes, there are a lot of authorities, other than courts, which can take actions within the scope of their subject matter jurisdiction concerning persons or activities within their physical range.
Another relatable example would be taxation. In the United States, for example, the national tax authority can do a number of things, such as seizing property or funds to satisfy tax debts, without a court order. Quite a few administrative agencies, at both the federal and state level in the US, have delegated authority to perform what are essentially adjudicative functions. In addition to that, they have the ability to issue records requests through administrative subpoenas, etc..
Some domain commentators are perfectly aware that administrative agencies such as the FTC can take investigatory and regulatory action within the scope of the statutes allowing them to do so:
Now, the way that agencies like the FTC work is that they are empowered by law to issue demands - administrative subpoenas - for various sorts of business records during the course of an investigation. Failure to comply with records requests issued in that way can result in penalties, the same as with tax investigations, etc..
One recent example would be the action taken by the US Federal Trade Commission in relation to a "lead generation" network run by a company associated with the .xyz registry. That was an administrative agency action which, eventually, resulted in a permanent injunction.
It is worth discussing that one in detail because, clearly, some people don't understand how administrative agencies have law enforcement powers outside of court actions.
The interesting part of that administrative agency action happened long before anything was filed in court. Take a look at the court docket here:
https://www.courtlistener.com/docket/61690720/federal-trade-commission-v-itmedia-solutions-llc/
You'll notice that the court action starts here on January 5:
The court action ends in a stipulated settlement here on January 10:
I guess there are some people who look at that, and think that the matter began and ended in five days later with a 20 page stipulated judgment.
No, that's not at all what happened.
If you dig into the details of the complaint, it is obvious that it is based on records obtained during an agency investigation for quite a long time leading up to filing the complaint. What actually happens when the FTC undertakes an investigation is that they have the authority to require US companies to provide them with relevant business records. Upon finding a violation, the FTC will then work out with the defendant what kind of outcome will address the alleged unlawful activity. In this instance, it is obvious that they negotiated a settlement and then filed the complaint with the court, quickly filed by the stipulated judgment worked out in advance, in order to give the settlement the continuing future power of a court order.
But none of the preliminary administrative subpoenas and other investigatory powers of the FTC involved a "court order". The entire process leading up to the court action involved the use of administrative subpoenas and other investigatory powers of the FTC with which US businesses must comply.
The TLDR on the FTC/XYZ thing is that if you want the FTC to "crack down on anti-competitive behavior" then you have to recognize that the way the FTC works is by first requiring businesses to comply with the FTC's investigatory mechanisms - which do not require "court orders". Likewise, the FTC can take administrative enforcement actions that, while appealable, also do not require court orders.
But you can't have it both ways.
Another well-known example was back in 2007 when the
US Department of the Treasury ordered Enom to take down a number of domain names that were engaged in commerce involving Cuba:
https://domaininvesting.com/cuba-related-websites-shutdown-domains-taken/
In this morning’s New York Times, there’s an article about an English travel agent who owned several Cuba-related domain names which were shut down by his registrar eNom, due to their listing on the US Treasury Department’s Office of Foreign Assets Control (OFAC). While owning and operating these websites on his own soil is legal, since they were being managed by eNom, a US-based domain registrar, eNom had to take possession of the domain names and essentially put the owner out of business.
How can that happen without a "court order"? Simple. The US Treasury Office of Foreign Assets Control (OFAC) is delegated the authority to enforce certain economic sanctions imposed by the US Congress. These include sanctions involving Cuba which are peculiar to the United States. The OFAC office has the independent power to investigate and identify businesses violating those sanctions and to place those businesses on a list of entities with whom US businesses are forbidden to engage in trade without a license. So, the mere designation of these domain names by this administrative agency - again with no court order at all - required Enom to disable those domain names.
So, it's a little odd, on the one hand, (a) to regularly call for administrative agencies like the USDOJ and FTC to exercise their legal investigatory and enforcement powers in order to obtain records and information from businesses for the purpose of investigating whether to bring a court action, and then turn around and (b) argue that law enforcement agencies should not be able to exercise those powers absent court orders, or to behave as if that is something alarmingly new or unusual.
I believe that any qualified arbitrator appointed to resolve a dispute under this clause is likely to understand what it is driving at, and that the proposed intention to give "any government agency" powers that are oddly constrained when it comes to a "court" is a pretty silly interpretation. Nonetheless, my very first words above are:
They simply might want to clarify that the qualifier "of competent jurisdiction" pertains to the preceding entities of similar type - i.e. a government, administrative or governmental authority or court.
So, sure, for people who don't understand that, yes, law enforcement and regulatory agencies can and do require people to do things - including businesses like a registry - without court orders. The Washington State Insurance Commissioner action against Epik, the investigatory phase of the FTC action against XYZ, and the enforcement of OFAC sanctions, are three well-known examples in the domain industry of a non-judicial actor being able to require registrars and registries to "do things" absent a court order to do those things.
It is not "new" and it is not unusual for non-court legal authorities having both personal and subject matter jurisdiction to require registrars and registries to comply with administrative subpoena's and agency enforcement actions without requiring a "court order" per se. Mr. Kirikos has, in fact, repeatedly called on US law enforcement agencies to do exactly those things.
In any event, it might be worthwhile to have some clarification around that language to prevent misunderstandings that would, as a practical matter, be unlikely to occur in the context of an actual enforcement matter.
If one really wants to dig into the mechanics of how this works, the India High Court has recently demanded that Tucows shut down certain domain names and comply with other orders. Tucows has not done so on the ground of jurisdiction. The Court has taken the odd interpretation that ICANN will require Tucows to comply with "any" court order, and the Court has indicated it will file a complaint with ICANN in order to have its orders enforced. So it is highly likely in the near future that we will see another practical example of this clause in action.
