At-Large Workspace: Recommendations on ICANN Jurisdiction

ICANN is responsible for globally coordinating the hierarchical distribution of a set of critical Internet resources. In its daily operations, local applicable law within a certain jurisdiction will preside over ICANN policies for end-users and business within that jurisdiction. But insofar as ICANN (i.e. the outcome of its multistakeholder policy making processes) determines the impact of decisions made within its remit, it is imperative that global interests are kept in mind and that no particular jurisdiction benefits over others because of what ICANN does.

The IANA transition ended the special role of the Unites States government via-a-vis ICANN's role, which essentially provided a right of veto for the U.S. when it came to changes in the DNS root zone file and formalized ICANN’s future accountability to the global multistakeholder community. However, being a corporation and inevitably based and headquartered in a particular jurisdiction left remaining challenges in terms of this accountability; as clearly stated in Annex 12 of the CCWG-Accountability’s final report for Work Stream 1 (WS1), ICANN will stay incorporated under the laws of the U.S. State of California. Because of this, some feared the risk of U.S. federal government regulating ICANN activities to the detriment of the interests of other nation states and/or stakeholder groups. Which would mean the United States, because of "jurisdiction", would still have more power over ICANN than other nation states.

The ALAC very much appreciates the work done by CCWG-Accountability WS2 Jurisdiction Subgroup, and the recommendations it has published for public comment in November 2017 to tackle ICANN’s jurisdictional challenges. And the ALAC agrees with all consensus recommendations as put forward by the Subgroup. The ALAC especially wants to highlight the following recommendations:

• ICANN should apply for and use best efforts to secure an Office of Foreign Asset Control (OFAC) license if the party from a sanctioned country is otherwise qualified to be a registrar (and is not individually subject to sanctions). During the licensing process, ICANN should be helpful and transparent with regard to the licensing process and ICANN’s efforts, including ongoing communication with the potential registrar;

• ICANN should commit to applying for and using best efforts to secure an OFAC license for all new gTLD applicants from sanctioned countries if the applicant is otherwise qualified (and is not on the specially designated nationals (SDN) list). ICANN should also be helpful and transparent with regard to the licensing process, including ongoing communication with the applicant;

• ICANN should clarify to registrars that the mere existence of their Registrar Accreditation Agreement (RAA) with ICANN does not cause them to be required to comply with OFAC sanctions. ICANN should also explore various tools to remind registrars to understand the applicable laws under which they operate and to accurately reflect those laws in their customer relationships;

• ICANN should take steps to pursue one or more OFAC “general licenses”, initially by prioritizing a study of the costs, benefits, timeline and details of the process: these licenses would have to be developed in conjunction with the U.S. Department of the Treasury. They would cover transactions integral to ICANN’s role in managing the DNS and contracts for Internet resources, such as registries and registrars entering into RAs and RAAs, Privacy/Proxy Accreditation, support for ICANN funded travelers, etc. This would enable individual transactions to proceed without the need for specific licenses.

The ALAC trusts that these recommendations will help ICANN in taking further steps to reduce and hopefully eliminate the effect U.S. sanctions against foreign governments can inadvertently have on Internet users and businesses in those sanctioned countries.

As reflected by the size of the draft report, the Jurisdiction Subgroup’s work is impressive: identifying the different "layers of jurisdiction", attempting to determine the influence of ICANN’s existing jurisdiction(s) relating to the resolution of disputes (i.e. governing law and venue) on the actual operation of ICANN’s policies and accountability mechanisms, involving the community with a questionnaire to provide factual information, comprehensively reviewing the litigations in which ICANN has been a party, and much more.

The ALAC is convinced the comprehensive findings of the Subgroup will assist further work that needs to be done, especially when it comes to "discussions of limited, partial, relative or tailored immunity for ICANN that did not come to conclusion".

As proposed by the Subgroup and which the ALAC fully supports:

"There should be a path forward for these concerns beyond the CCWG- Accountability, which was tasked to look into a limited number of issues within a limited period of time and with a limited budget.

Therefore, the Subgroup suggests that a further other multistakeholder process of some kind should be considered to allow for further consideration, and potentially resolution, of these concerns."

(Introduction role and interest At-Large Advisory Committee, stationery etc – done by staff?)

ICANN is responsible for globally coordinating the hierarchical distribution of a set of critical Internet resources. In its daily operations, local applicable law within a certain jurisdiction will preside over ICANN policies for end-users and business within that jurisdiction. But insofar as ICANN (i.e. the outcome of its multistakeholder policy making processes) determines the impact of decisions made within its remit, it is imperative that global interests are kept in mind and that no particular jurisdiction benefits over others because of what ICANN does.

While the IANA transition ended the special role of the Unites States’ Government via a vis ICANN -a role which essentially provided a right of veto for the U.S. when it came to changes in the DNS root zone file- and formalized ICANN’s future accountability to the global multistakeholder community, being a cooperation and inevitably based and headquartered in a particular jurisdiction left remaining challenges in terms of this accountability; as clearly stated in Annex 12 of the CCWG-Accountability’s final report for Work Stream 1 (WS1), ICANN will stay incorporated under the laws of the U.S. state of California. Because of this some feared the risk of U.S. federal government regulating ICANN activities to the detriment of the interests of other nation states and/or stakeholder groups. Which would mean the U.S., because of ‘jurisdiction’, would still have more power over ICANN than other nation states.

The ALAC very much appreciates the work done by CCWG-Accountability WS2 Jurisdiction Sub-group, and the recommendations it has published for public comment in November 2017 (footnote) to tackle ICANN’s jurisdictional challenges. And the ALAC agrees with all consensus-recommendations as put forward by the Sub-group. The ALAC especially wants to highlight the following recommendations:

• ICANN should apply for and use best efforts to secure an Office of Foreign Asset Control (OFAC) license if the party from a sanctioned country is otherwise qualified to be a registrar (and is not individually subject to sanctions). During the licensing process, ICANN should be helpful and transparent with regard to the licensing process and ICANN’s efforts, including ongoing communication with the potential registrar;

• ICANN should commit to applying for and using best efforts to secure an OFAC license for all new gTLD applicants from sanctioned countries if the applicant is otherwise qualified (and is not on the specially designated nationals (SDN) list). ICANN should also be helpful and transparent with regard to the licensing process, including ongoing communication with the applicant;

• ICANN should clarify to registrars that the mere existence of their Registrar Accreditation Agreement (RAA) with ICANN does not cause them to be required to comply with OFAC sanctions. ICANN should also explore various tools to remind registrars to understand the applicable laws under which they operate and to accurately reflect those laws in their customer relationships;

• ICANN should take steps to pursue one or more OFAC “general licenses”, initially by prioritizing a study of the costs, benefits, timeline and details of the process: these licenses would have to be developed in conjunction with the U.S. department of the Treasury. They would cover transactions integral to ICANN’s role in managing the DNS and contracts for Internet resources, such as registries and registrars entering into RAs and RAAs, Privacy/Proxy Accreditation, support for ICANN funded travelers, etc. This would enable individual transactions to proceed without the need for specific licenses.

The ALAC trusts that these recommendations will help ICANN in taking further steps to reduceg and hopefully eliminate the effect U.S. sanctions against foreign governments can inadvertently have on Internet users and businesses in those sanctioned countries.

As reflected by the size of the draft report, the Jurisdiction Sub-group’s work is impressive: identifying the different ‘layers of jurisdiction’, attempting to determine the influence of ICANN’s existing jurisdiction(s) relating to the resolution of disputes (i.e. governing law and venue) on the actual operation of ICANN’s policies and accountability mechanisms, involving the community with a Questionnaire to provide factual information, comprehensively reviewing the litigations in which ICANN has been a party, and much more.

The ALAC is convinced the comprehensive findings of the Sub-group will assist further work that needs to be done, especially when it comes to ‘discussions of limited, partial, relative or tailored immunity for ICANN that did not come to conclusion’.

As proposed by the Sub-group and which the ALAC fully supports:

‘There should be a path forward for these concerns beyond the CCWG- Accountability, which was tasked to look into a limited number of issues within a limited period of time and with a limited budget.

Therefore, the Sub-group suggests that a further other multistakeholder process of some kind should be considered to allow for further consideration, and potentially resolution, of these concerns.’