[CWG-RFP3] Is there is a more suitable legal jurisdiction for an IANA subsidiary?

[Milton L Mueller]

I know of no litigation under Cal law except for one case. Back in 2002 Karl Auerbach, an elected board member who was perceived as a dissident and threat by ICANN's staff and the majority of its board, asked to see financial records. This right of a board member to see financial records was clearly stated under California law, yet ICANN's law firm and legal staff and board chair (at the time, Vint Cerf) contested that and tried to prevent him from getting the records. With the help of EFF, Karl sued under California law and won.

See this for the full case
https://www.eff.org/files/2013/12/12/20020521-sj_auerbach_declaration_with_exhibits.pdf

This shows that ICANN staff can indeed make claims that are not supported California law. Most of the other claims of this sort have to do with the appeals process, in which staff claims that the board cannot surrender any decision making power to anyone, and thus any appeals process cannot be binding. That issue has not been litigated and I have heard people argue both sides, but the only people I have heard support ICANN's interpretation are employed by ICANN.

But again, these kinds of issues belong more in the enhanced accountability process than in the IANA process, in my opinion.

That said, I am aware of many criticisms of how ICANN has used the "California law" card as a way to get out of things. The truth of those is beyond my experience, but I wonder how often the courts of California have decided those issues, rather than assertions by ICANN legal?  My suspicion is the courts haven't played much of a role - or in other words, that it may not be the California jurisdiction that's the problem so much as how it is being interpreted...

best,
Jordan

On 4 November 2014 05:33, Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>> wrote:
All:

Here is Robert's second question (which I think also applies to the concept of a fully independent IANA):

For  option #2.

- Is there is a  jurisdiction that ICANN has (or can obtain) legal status might be more suitable to use to create IANA as a subsidiary. Such an option might allow for the link to be a subsidiary of ICANN, but sever the legal link to the US. A negative, of course, would be moving the function and existing staff to a new part of the world.

Comments and discussion?

Greg

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