ICANN and the Jurisdiction Issue

Jurisdictional issues pertaining main Internet actors have always been hotly debated. One of the most recent debates which is going to start again soon relates to the Internet Corporation for Assigned Names and Numbers (ICANN). ICANN is in charge of policymaking for administering the domain names. It has a multistakeholder governance structure, which is open to anyone interested to contribute to the policies of ICANN. This blogpost provides some background regarding the jurisdictional issues and shed lights on some of the stated opinions of the stakeholdergroups. It is an attempt to brief those interested, to participate in the process.

The debate over ICANN’s jurisdiction has been ongoing almost since the organization was created in 1998. The discussion gained renewed and strong impetuous with the creation of the Cross Community Working Group Stewardship (CWG Stewardship), and Cross Community Working Group Accountability (CCWG Accountability) in 2014. This report will briefly look at the relevant discussions of both groups.

CCWG Accountability and Jurisdiction

1. In-depth discussion and resolution of jurisdiction and ICANN’s corporate location has been delegated to Work Stream 2. This work was expected to start in October 2015, however it will now begin in earnest soon after initial discussions at ICANN56 Helsinki, 26-30 June 2016.
2. The importance of addressing jurisdiction was stressed by several contributors (India, Germany, France, Spain, Danish Business Authority, Brazil) during the CCWG Accountability’s first public comments. Their comments are present in appendix 1.
3. The concerns noted about ICANN’s jurisdiction were that it might have influence on “its actual operation of policies” and the CCWG Accountabilities’ anticipated “accountability mechanisms”.¹
4. CCWG Accountability identified several desirable features for an ideal jurisdiction, these included.
   • A legal framework able to accommodate the multistakeholder model
   • A strong corporate governance model that can enhance accountability
   • Jurisdictions that when physical presence is required should have a strong legal framework of labor laws, visas, and security
   • The laws governing contracts for registrars and registries should include a stable legal regime, affordable legal action, level playing field for global actors (in terms of ease of understanding the national legislation)
   • The ability to sue and be sued in court (debatable)
   • Existing robust competition law and anti-trust law
5. A submission by Richard Hill to the CCWG Accountability first public comment process sparked a brief discussion and a legal opinion on the suitability of the jurisdiction of Switzerland.
6. Legal opinion considered two forms of incorporation in Switzerland: NGO and INGO. Nevertheless the discussion was not pursued further. More details provided in the document.²
7. One important aspect introduced by Lee Bygrave about Swiss jurisdiction was that under the Swiss law, an association (which Hill put forward as a solution) cannot easily change its bylaws and needs the majority vote of its members. And in order to make substantial changes to its operations an association has to call for an assembly of all its registered members.

CWG Stewardship and Jurisdiction

Similar to CCWG Accountability, comments on jurisdictional issues in the CWG Stewardship proposal, while emphasizing the importance of jurisdiction, have so far lacked substantive discussion, other than to express concerns about US as the jurisdiction of ICANN. It seems that the issue of jurisdiction has generally been delegated to Work Stream 2 of CCWG Accountability.

Nonetheless, there have been references to the jurisdiction of the so-called Contract Co (later changed to Post Transition IANA (PTI)), which will be established to carry out the technical functions of IANA. The community (mostly) considered the separation of technical and policymaking functions as important, so the proposal sought comments on the establishment of “Contract Co”.

These comments included references to jurisdiction, however they did not become a substantive part of the discussion. Briefly and based on other sources, the views expressed were as follows:

• Registrars commented that the US would be "ideal", Canada or the UK “acceptable alternatives”, and Switzerland “problematic”.³
• China considered the jurisdiction of Contract Co as important.
• An Indian Think Tank referred to the jurisdiction of Contract Co as an important issue.
• The government of Brazil also mentioned jurisdiction.⁴
• Concern about raising the standard for changing ICANN’s ordinary bylaws, which would introduce a higher standard to change any article about current location (e.g. Article 18, and potentially AoC 8b)
• Concern about including an article in the bylaws about ICANN HQ location as a fundamental bylaw, i.e. creating a de-facto lock-in to California.

Conclusion

The issue of jurisdiction has not been fully addressed yet. These issues will be brought up in CCWG Accountability Work Stream 2. We can expect jurisdiction to be a hotly debated topic and it is worth paying attention to. The Work Stream 2 discussions are open to anyone who wants to engage with ICANN and policymaking. For more information on how to get engaged, you can contact me.

¹ Comments of the Brazilian Government on the “Cross Community Working Group (CCWG)  ccountability Initial Draft Proposal for Public Comment”, Para 25, the Brazilian Government continued that “Brazil is willing to collaborate with other members and participants of the CCWG-Accountability in order to perform a comprehensive and impartial assessment of different jurisdictional options for ICANN.”

² Legal Sub-team (“Legal Sub-team”) of the Cross-Community Working Group on Enhancing ICANN Accountability (“CCWG”) FROM: Sidley Austin LLP RE: Preliminary Response to Legal Sub-team Questions Identified in Memorandum Ref CCWG/SA/001 Initial Discussion Draft 1 DATE: March 27, 2015

³ Haste Makes Waste: Comments on ICANN CWG IANA Transition Proposal Indicate Serious Process Problems, http://www.circleid.com/posts/20150105_haste_makes_waste_icann_on_cwg_iana_transition_proposal_problems/

⁴ Happy New Year, Happy New IANA, http://www.internetgovernance.org/2015/01/01/happy-new- year-happy-new-iana/

Picture: CC BY 2.0 medithit · flickr.com