[Ws2-jurisdiction] ISSUE: Positive Effect of CA Law on ICANN Operation and Accountability Mechanisms since Transition

[Paul Rosenzweig]

+1 - Amen, Brian.

 

Paul

 

Paul Rosenzweig

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paul.rosenzweig at redbranchconsulting.com

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From: ws2-jurisdiction-bounces at icann.org
[mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Brian Scarpelli
Sent: Sunday, August 27, 2017 8:24 PM
To: ws2-jurisdiction at icann.org
Subject: [Ws2-jurisdiction] ISSUE: Positive Effect of CA Law on ICANN
Operation and Accountability Mechanisms since Transition

 

(with apologies for sending this to an incorrect email the first time just
before the deadline of 12p UTC)

 

WS2 Jurisdiction Subgroup colleagues - my issue contribution is below. I
have also entered this into the WS2 Jurisdiction issue spreadsheet
(https://docs.google.com/spreadsheets/d/1zAMj3Oz8TEqbjauOyqt09Ef-1ada9TrC7i6
0Mk-7al4/edit#gid=0).

 

Best regards,

 

Brian Scarpelli
Senior Policy Counsel
 <tel:517-507-1446> 517-507-1446 |  <mailto:bscarpelli at actonline.org>
bscarpelli at actonline.org
ACT | The App Association

  _____  

 

TITLE: Positive effect of California not-for-profit incorporation and
headquarters location on ICANN accountability mechanisms and operations. 

 

ISSUE: It is within the remit of Work Stream 2's Jurisdiction Subgroup to
build on Work Stream 1, to consider the effect of ICANN's current
jurisdictional set-up (in particular, California not-for-profit law) on
ICANN operation and accountability mechanisms and to find ways to enhance
ICANN's accountability to the multistakeholder community. Work Stream 2's
Jurisdiction Subgroup has discussed of a wide range of issues (some within
the remit of the Subgroup, and others outside), and a number of subgroup
members have brought forward scenarios in which jurisdiction(s) may affect
ICANN, both positively and negatively. This discussion has been fruitful not
only in exploring edge use cases, but more importantly in addressing whether
and how the existing legal status of ICANN as a California nonprofit public
benefit corporation assists ICANN in operating in an accountable manner.

 

The mechanisms developed in Work Stream 1 are based on ICANN's status as
nonprofit public benefit corporation incorporated in California and subject
to US and California state laws. These mechanisms take advantage of specific
features of California law, such as the Sole Designator concept. Work Stream
1 also recognized that a key existing accountability mechanism was the fact
that ICANN is subject to U.S. federal and laws and state and federal court
jurisdiction. Furthermore, ICANN is set up as and operates in the manner of
a California non-profit and has done so for nearly 20 years. In the absence
of NTIA's stewardship role over the management of the DNS, maintaining these
new and existing accountability mechanisms, and ICANN's stability, is of
paramount importance.

 

Changing ICANN's jurisdiction would undermine these new and existing
accountability mechanisms, the ability of ICANN to operate in an accountable
manner, and ultimately ICANN's stability. Even the ongoing debate over
ICANN's headquarters location and place of incorporation has the effect of
bringing ICANN's accountability mechanisms into question. At the very least,
this debate has the effect of using up significant multistakeholder
resources better applied to refining the work of Work Stream and ICANN's
overall accountability.

 

PROPOSED SOLUTION: The Jurisdiction Subgroup should explicitly affirm in its
recommendations that:

*	ICANN's current jurisdiction (i.e., California as the state of
incorporation and headquarters location) is a critical and integral part of
ICANN's system of accountability and its operations.
*	Subjecting ICANN to the laws of and jurisdiction of courts in the
United States and elsewhere (including but not limited those jurisdictions
where ICANN has operations) are fundamental and very important
accountability mechanisms, which allow third parties to hold ICANN
accountable and ensure that ICANN abides by the rule of law.
*	The accountability mechanisms of Work Stream 1 use and depend on
maintaining ICANN as a corporation headquartered and incorporated in
California.
*	Therefore, modifications to the core jurisdictional concepts of
ICANN would be detrimental to ICANN's accountability. In particular, the
CCWG's work in Work Stream requires Work Stream 2 to maintain the current
jurisdictional concepts so that the new mechanisms can be fully implemented
and operate unhindered for a substantial period of time. As such, Work
Stream 2 should confirm and ratify that the current jurisdictional make-up
of ICANN is a fundamental part of ICANN's accountability mechanisms.

 

 

 

 

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