[Ws2-jurisdiction] Issue: US executive and regulatory powers over ICANN

[parminder]

Issue:

Within the wide "class of functions" etc related powers to various US
executive and regulatory agencies, they can weigh upon ICANN, as a US
based organisation fully subject to US jurisdiction", to act or not act
in a particular way, which it takes to be in furtherance of the public
interest that they have been mandated to uphold. The regulatory agency
which directly relates to ICANN's core functions is the Federal
Communications Commission or FCC which has within its express mandate to
manage the numbering issue in the telcom sector. As per current
interpretation of law, Internet in the US is considered as a telecom
service, and therefore names and numbering for the Internet comes under
FCC's remit. Currently, FCC has "forborne" its remit on Internet's names
and numbering system. The very meaning of such forbearance is to accept
its possible jurisdiction but not exercise it at a particular point or
under particular circumstances. FCC has earlier forborne its title 2
regulatory powers over the Internet but chose to assert them last year
with their "net neutrality" ruling. A similar thing can be done with
respect to Internet's names and numbering system, if ICANN thinks that
it needs to act to uphold US public interest. No such powers of
interventions are available to corresponding regulators of other
countries. Such unilateral jurisdiction of FCC over ICANN therefore is
illegitimate and undemocratic from a global point of view.

FCC is the US regulatory agency most directly concerned with ICANN
functions. However, the work of ICANN connects to almost all sectors,
many of which have dedicated regulatory agencies in the US. FDA for
instance may want to force its will on exclusion-inclusion or other
principles that .pharma or .health may lay. So may the transport
regulator with .cars, and .auto, or whatever. There is no end to such
possibilities.

Regulatory is one class of more specialised executive action, but many
other executive agencies, right down from the office of the President of
the USA itself, have various kinds of powers over all US organisations,
including the ICANN. This is problematic in the same way as other
executive/ regulatory powers that we have discussed.

Solution:

It is not possible to make a list of all executive/ regulatory powers
that impinge upon ICANN. That is the very nature of state organisation
and power. In the circumstances, the only solution to this problem is a
general immunity under the US International Organisations Immunities
Act, with proper customisation and exceptions for ICANN to enable to be
able to perform its organisational activities from within the US. The
chief exception I understand would be the application of California non
profit law. 



-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/ws2-jurisdiction/attachments/20170828/139a9bfa/attachment.html>