Article 8 of the Affirmation of Commitments states that ICANN´s legal presence must remain in the United States. Can an organisation such as ICANN serve the global public interest if subject to the legislation of the state of California? Or is the specific legal presence of such an institution irrelevant as long as it remains under a predictable and stable regime?
The session concluded that:
- The stability of the existing operation of ICANN in California should not be disturbed.
- The few motivations for change were political and not realistic.
- The new arrangements, remaining in the USA, are sound. They allow for future change, but no change is foreseen.
Discussion around jurisdiction centres on the ecosystem, data location and taxation concerns, entities to be in, or linked to the IG ecosystem.
- ICANN’s legal obligations under the Affirmation of Commitments to the US government have changed. They have been moved into the bylaws of California. Any discussion about jurisdiction has been deferred to the longer term
- The CCWG (Cross Community Working Group) accountability discussion on jurisdiction seeks to address ICANN’s legislation and operational roles. ICANN has rights but also has limits. The single designator model to grant the community certain powers for accountability is permitted and enabled by California legislation. However, the CCWG has decided to consider this after the IANA transition. Preliminary discussions reached an understanding that:
- Keeps the status quo in California. Objections to moving ICANN have not been formally articulated. The US government has said it should remain in California, but legal redress could be addressed elsewhere.
- Recognises that jurisdiction is not a simple topic but has multiple layers.
- Admits the issue of where ICANN offices are present.
- Suggests that all issues regarding contracts for registers and registries should be addressed.
- Ability to sue and be sued in a specific jurisdiction.
- Advocates the continued domestic handling of domestic issues such as TLD and names.
- Aims to defer this work from 2016 onwards for practical reasons.
- Future consideration options:
- Create ICANN as an international organisation, say in Switzerland or in the USA, perhaps with a different status.
- Continue Jurisdiction discussions in Work Stream 2 of the IANA transition. Ensure stability with legal certainties, taxation, transparency, and lack of corruption, good infrastructure being important – for example, Denmark.
- Recognise diversity as an important issue to address with equal opportunities to participate.
- Don’t jump to conclusions. Discussion immature. Engage in WS2.
- Problem is the diversity of ICANN, not jurisdiction.
By Patrick Curry