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

[Pranesh Prakash]

Dear Brian and all,
The solution proposed below is a non-solution since it says that the 
jurisdiction issue was effectively decided in WG1.  We might as well 
disband this sub-group, then.

I and others kept pointing out that WG1 had to deal with jurisdiction 
since the accountability mechanism was closely linked to jurisdiction. 
(Please see "Comments by the Centre for Internet and Society on Draft 
New ICANN By-laws", "Submission by the Centre for Internet & Society on 
CCWG-Accountability 2nd Draft Proposal on Work Stream 1 
Recommendations", as well as our response to the IANA Transition Draft 
Proposal: https://goo.gl/zXocMP ).

At that point, others were in favour of kicking the ball down the road 
so as not to disturb the status quo while undergoing other momentous 
changes.

Now, unsurprisingly, folks like yourself are saying that the problem has 
already been solved and the status quo should not be changed lest it 
affect stability.

Folks might be interested in reading the portion of our submission to 
the CWG titled "Desiring “Minimal Changes” is Political Status-Quoism 
not Technical Stability", which seeks to counter this insidious canard 
that stability will get effected negatively by jurisdictional shifts: 
https://goo.gl/zXocMP

Regards,
Pranesh

Brian Scarpelli <BScarpelli at actonline.org> [2017-08-28 00:24:20 +0000]:
> (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-1ada9TrC7i60Mk-7al4/edit#gid=0).
> 
> Best regards,
> 
> Brian Scarpelli
> Senior Policy Counsel
> 517-507-1446<tel:517-507-1446> | bscarpelli at actonline.org<mailto: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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> Ws2-jurisdiction at icann.org
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> 

-- 
Pranesh Prakash
Policy Director, Centre for Internet and Society
http://cis-india.org | tel:+91 80 40926283
sip:pranesh at ostel.co | xmpp:pranesh at cis-india.org
https://twitter.com/pranesh

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