[Ws2-jurisdiction] Our work so far, and a way forward

[Mueller, Milton L]

1.      What happens if the concerned  US court holds .xxx to be against US's competition law? Describe the steps that will follow, and how can ICANN avoid bending its policy making process and authority to the will of the US state.

MM: I don't think that's a problem for ICANN. It's a problem for the entity that was delegated .XXX.  Since XXX holds a tiny sliver of the domain name market, even in the porn space, this is a very remote risk.


2.      Same about .africa.

Same response.


3.      With 100s of new gTLDs getting operational, many of them private closed ones with generic names (but that is hardly the only issue, there could be many others), is it not obvious that we will be seeing many court cases around them... What would ICANN do the moment an adverse judgement comes?

See above. Not an issue for ICANN. Most of these court cases are between private parties, but even regulations or antitrust actions would be directed against the holder of the gTLD, not ICANN. Only if ICANN itself were accused of fostering a monopoly would it be the target of such litigation.

4. What if OFAC doesn't give licence to ICANN for dealing with a particular country due to great deterioration of relationships with the US.


Now, you have hit on a real issue. I  believe however that NTIA has taken some precautions here, but I don't recall what they are.

5. What if the FCC revises its decision of forbearance about its authority over Internet addressing system (as it did on the issue of whether Internet was title one or title two)?



MM: This would require legislation, because nothing in the existing Communications Act gives the FCC any authority over DNS or IP addressing. So this is just another example of "what if the US legislates to regulate ICANN in some way?" Which of course is a risk if ICANN were in ANY jurisdiction.

6. There are almost as many US agencies that can exercise mandate over ICANN's domain name policies as there are sectors that the Internet and thus its naming system impacts. (ICANN allowed some 'regulatory policies' to buyers of .pharmacy, and going forward as it also does this with many other sectoral domain names, all of these can be challenged, in the courts, as well as with sectoral regulatory bodies). What then?



MM: These dangers are greatly diminished post-transition.

If you even begin trying to deal with these questions, you will realise what a volcanic earth we are sitting upon, in refusing to see the public law jurisdiction issue.



MM: Don't agree we are sitting on a volcano, but do agree there are issues that need to be anticipated, a kind of "stress test"



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