Jurisdiction has been a ‘hot topic’ within the ICANN community for a long time. The ICANN60 meeting was no exception, and the issue was discussed in different frameworks: as part of the face-to-face meeting of the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability), in the ‘Jurisdictional Challenges for ICANN’ cross-community session, and as part of the agenda of the Governmental Advisory Committee (GAC), among others.
This report focuses on the cross community session on ‘Jurisdictional Challenges for ICANN’, organised at the proposal of the GAC. The session was structured in two parts: the first focused on the jurisdiction-related recommendations of the CCWG-Accountability; and the second looked at broader community concerns based on the application of the laws of ICANN’s place of jurisdiction.
As part of its Work Stream 2 (WS2), the CCWG-Accountability has a sub-team focusing on jurisdiction-related issues. Recently, the sub-team produced a report with two sets of recommendations: one regarding licenses from the US Department of Treasury, Office of Foreign Asset Controls (OFAC), and the other one regarding choice of laws clause in ICANN’s Registry/Registrar Agreements. The sub-team’s report containing these recommendations has been approved in the CCWG plenary, on the basis of a rough consensus (with objections from the Brazilian government) and will soon be published for public comment.
Recommendations related to OFAC. As ICANN is a corporation based in California, it needs to comply with the sanctions imposed by OFAC (OFAC enforces economic and trade sanctions against targeted foreign countries, in line with US foreign policy and national security goals). The CCWG jurisdiction sub-team recommends that ICANN commits to making best efforts to apply for specific OFAC licenses that would allow the organisation to have relations with registrars based in countries affected by OFAC sanctions. As negotiations over obtaining an OFAC licence are a difficult and lengthy process, ICANN needs to be transparent and communicate regularly with regard to the process and progress achieved in securing such licences. The same should happen for future applicants for new generic top-level domains (gTLDs). It is also recommended that ICANN studies the costs and benefits of applying for a general OFAC licence.
Recommendations related to choice of laws in Registry/Registrar Agreements. The sub-team recommends that ICANN adopts a menu approach with regard to the choice of laws in Registry/Registrar Agreements. There are no specific recommendations as to what the menu should consist of, but it could include, for example, one country per ICANN region, several countries per ICANN region, the country of the registry’s/registrar’s home office, California/US law. With regard to the choice of venue for arbitrations, there is a recommendation that a venue menu could also be adopted. The current Registry Agreement calls for arbitration with a seat in Los Angeles. Instead, there could be a menu with options for other potential seats.
During the discussions, it was noted that the recommendations related to OFAC address real issues faced by registrars and registrants in countries affected by OFAC sanctions. In this sense, they are needed and could be seen as one of the most important steps in ‘neutralising’ any potential accountability bias coming from US jurisdiction, by allowing people in countries sanctioned by the USA to continue to have access to the DNS. With regard to the recommendations on the choice of laws, it was said the suggestion for menu options could affect how the governing law clause in the Registry/Registrar Agreements is fashioned, leading directly to how contracts are interpreted and enforced. For some, this could have an impact on accountability within the ICANN context.
Brazil explained that it had dissented from the jurisdiction-related recommendations not because it opposes the substance of the recommendations, but because it finds the recommendations to be incomplete, with some issues being inadequately addressed. The dissenting opinion, Brazil underlined, should not be seen as an attack on the multistakeholder model. The country is a supporter of this model, but it is concerned about how governments in this model can have even conditions and be on a truly equal footing. The opinion is also not about moving ICANN to a different jurisdiction, as Brazil accepts what was agreed as part of Work Stream 1, i.e. that ICANN should remain headquartered in the USA. What Brazil wants to see is a continuation of exploring a partial immunity solution for ICANN.
Another point made during the discussion was that, while the IANA stewardship transition process led to the elimination of US stewardship over the root zone, ICANN, as a corporation, has to be rooted somewhere, and it was broadly agreed in WS 1 that California is as good a jurisdiction as any other. Yet, there is still the possibility that the US government will regulate ICANN. But, wherever ICANN is located, there is the possibility that the government there could choose to regulate it or interfere with its operations. The question is how to deal with such possible situations.
On the issue of immunity, it was said that the problem within the sub-team was that there was no viable model identified for achieving it. Observations were made that careful consideration needs to be given to this concept, as immunity could also mean immunity from accountability. Some members of the sub-team were concerned that the concept of immunity could possibly release ICANN from the kind of accountability to basic forms of law that the community wants ICANN to have. Another aspect that was discussed was related to the international organisations’ immunity act in the USA: if this were to apply to ICANN, it would effectively mean having ICANN ask the US Congress what kind of immunities it could have. This was seen as reversing the IANA stewardship transition process.
Some commented that, if the issue of immunity is being discussed, it should be addressed from the standpoint of immunising ICANN from the jurisdiction of all countries (not only the USA).
During the discussions, many were in favour of continuing the debate on how to make progress on the issue of immunities. A point in this regard was to be added to the report of the jurisdiction sub-team: while the discussions on limited or impartial immunity for ICANN did not come to a conclusion during the work of the jurisdiction sub-team, the concerns raised were legitimate, and, as such, there should be a path forward for these concerns to be discussed beyond the CCWG-Accountability work. The issue of immunity was seen by many as being beyond the scope of the CCWG-Accountability, but the community was encouraged to build upon the work of the jurisdiction sub-team when addressing the issue in a different context. There was a suggestion for a new cross-community working group to be established with the sole purpose of exploring the immunity issue.
Discussions on jurisdiction issues were also held within the GAC. As reflected in the communique issued by the committee at the end of the Abu Dhabi meeting, some members welcomed the recommendations of the CCWG-Accountability jurisdiction sub-team, both concerning OFAC (and the efforts to be made by ICANN to apply for OFAC licenses), and the menu options for the choice of laws in Registry/Registrar Agreements. Other members were of the view that the recommendations were insufficient in addressing concerns related to ICANN being located in the USA. Several members expressed their wish for the ICANN community to continue discussions on the issue of limited or partial immunity for ICANN.