ICANN Accountability Working Group Seen Progressing on Jurisdictional Issues

The Jurisdiction Subgroup is collecting and analyzing several streams of feedback on ICANN's jurisdictional issues, including the organization's response last week to some legal questions, subgroup Rapporteur Greg Shatan said. ICANN's lawyers emphasized in their response the organization's deep jurisdictional ties to California and the U.S. The business “currently is based upon significant contacts and maintenance of business ties within the U.S.,” the organization's lawyers said. “If ICANN were to move headquarters outside of the U.S. tomorrow (which it has no plans to do) there are still likely a significant number of contacts that ICANN maintains in the U.S. such that ICANN would still be subject to following the laws required in order to conduct business in the U.S., such as observing U.S.-imposed sanctions.”

All of ICANN's agreements are premised on laws applicable in Los Angeles, including U.S. federal statutes and California state laws, the lawyers said. Those agreements include all of ICANN's Internet Assigned Numbers Authority-related agreements, they said. ICANN's registry and registrar agreements are premised on litigation and arbitration taking place in either Los Angeles or Geneva, Switzerland, the lawyers said. “Only intergovernmental organizations, governmental entities, or registry operators facing other special circumstances may select Geneva for venue.”

The organization isn't immune from litigation or other court action in any jurisdiction, so “there is no bright-line rule as to whether any litigation can or cannot be successfully maintained against ICANN in any location just by virtue of ICANN having a hub or engagement office in that location,” the lawyers said. “ICANN has never agreed to waive its ability to bring any and all appropriate defenses to litigation.” The “propriety of any court’s assertion of jurisdiction over ICANN must be viewed in light of the claims at issue in the litigation, how those claims are tied to the selected jurisdiction, ICANN’s alleged ties to those jurisdictions” and other factors, the lawyers said. “ICANN cannot presume to know what any court would do if faced with these claims, but ICANN would assert any and all appropriate defenses to any litigation, including jurisdictional challenges.”

Confirmation

The responses “confirm what nearly everyone on the Jurisdiction Subgroup had been saying” about the organization's jurisdictional ties to the U.S., NetChoice CEO Steve DelBianco said. “These responses refute the fond wishes of some in the subgroup that ICANN can change its jurisdictional profile by simply moving its headquarters out of the U.S. This should put to rest some of the irrational exuberance of those in favor of isolating ICANN from the jurisdiction of U.S. courts, because that can't happen.”

It's largely “consistent with my expectations” for ICANN's legal perspective on jurisdictional issues, Shatan said. “ICANN is broadly susceptible to lawsuits in an number of jurisdictions but nonetheless has strong jurisdictional ties to California.” The Jurisdiction Subgroup is likely to seek additional feedback from ICANN's lawyers but may also seek third-party legal advice on issues the organization felt they couldn't freely comment about, he said. The organization “may be trying to nip this issue in the bud before it can really re-emerge as a political thorn in their side,” said a domain name industry executive. CCWG-Accountability postponed a decision on ICANN jurisdiction during its work on its first set of accountability recommendations amid concerns the issue could derail the now-completed IANA oversight transition (see 1508040058).

The Jurisdiction Subgroup also is collecting responses to a questionnaire that earlier was a focal point for U.S. stakeholders' concerns, Shatan said. The final questionnaire mostly focuses on how ICANN’s existing jurisdiction has affected domain name system activities, including stakeholder privacy, dispute resolutions and litigation. The questionnaire reworded a controversial question included in an earlier draft that originally sought comment on the “advantages or disadvantages” of ICANN's remaining incorporated as a nonprofit corporation under U.S. and California law. The final question instead asked for “documented” instances in which ICANN was “unable to pursue its Mission because of its jurisdiction.” The question still asks stakeholders to identify potential alternative jurisdictions for ICANN in which the organization “would not be prevented” from pursuing its mission.

Responses to the questionnaire are due Monday.

Responses Due

Almost all responses the Jurisdiction Subgroup received generally haven't indicated concerns about ICANN's jurisdiction, Shatan said. He cautioned that those submissions don't necessarily predict the tilt of all stakeholders' feedback since many comments won't be submitted until Monday. A submission from the Just Net Coalition (JNC) suggests three alternative jurisdictional arrangements for ICANN in which the organization “will not be prevented from pursuing its mission ... as it is so prevented in its current jurisdictional status.”

Options include reincorporating ICANN under international law, obtaining immunity for ICANN under the U.S.'s International Organizations Immunity Act, and “keeping a standing back-up option to move out” of Los Angeles “in case of [U.S.] jurisdiction intervention,” JNC said. “ICANN can institute a fundamental by-law that its global governance processes will brook no interference from US jurisdiction. If any such interference is encountered, parameters of which can be clearly pre-defined, a process of shifting of ICANN to another jurisdiction will automatically be set into motion.”

The Jurisdiction Subgroup believes it can realistically expect to have its recommendations completed before the start of ICANN's Oct. 28-Nov. 3 meeting in Abu Dhabi, though it's possible it will have some preliminary results to present by the organization's June 26-29 meeting in Johannesburg, Shatan said. The subgroup expects to have the scope and mission for its work fully defined in the near future and intends to complete an ongoing analysis of jurisdictional issues from ICANN's past and present litigation by the end of April, he said.

The subgroup is “on a better path now” that it has been able to largely move past the earlier push for a greater focus on shifting ICANN's place of incorporation, said Phil Corwin, principal of e-commerce and IP law consultancy Virtualaw. “You can never predict how these things will go” but it's fairly clear that “a majority of the working group” doesn't favor moving ICANN out of Los Angeles, he said. A domain name industry executive also noted CCWG-Accountability's progress on jurisdictional issues but added that “we'll see how the bulk of the questionnaire results shake out.”

DelBianco and Shatan believe that CCWG-Accountability's work on other issues also is going well, noting the positive response to the working group's draft recommendations for improving the organization’s transparency (see 1702220067). Comments were generally positive, though the Generic Names Supporting Organization's IP Constituency, which Shatan leads, raised concerns about several of the recommendations. Shatan noted progress on the Staff Accountability Subgroup's work, which he said would in some ways be more germane to the ICANN community's daily interactions with the organization. A domain names industry executive indicated ongoing interest in the working group's plans for implementing ICANN's human rights bylaw because once the rule takes effect it will be clearer “how the core value will actually operate” in practice.