responser/responsesShould be analyzedQ1Q2Q3Q4AQ4B
Vanda Scartezini (Brazil)?No not at this moment.No, at least on my knowledgeNo nothing to helpnone to help.I believe any jurisdiction has its pros & cons, but we need to see how things will perform during Mr. Trump’s Administration in US. By now it is unpredictable if the reality we have seen till now under US jurisdiction will continue. It is, in my opinion too early to take any decision YES or NO for current or alternate jurisdiction due changes in several relevant countries occurring this and next year.
Brian J. Winterfeldt (USA)?Mayer Brown LLP represents various clients including brand owners, registrants, registry operators and registrars. The identity of these clients, where not already a matter of public record, is subject to attorney-client confidentiality. These parties have generally been affected by ICANN’s jurisdiction, primarily the prescription of jurisdiction and venue in Los Angeles County, California. We support such jurisdiction and venue in these contexts. Otherwise, ICANN’s jurisdiction has not negatively affected our clients’ businesses, or their ability to purchase or use domain name services. Overall, we strongly favor keeping ICANN incorporated and headquartered in California, as agreed upon during CCWG-Accountability Work Stream 1. None of these disputes involved ICANN directly as a party. However, we strongly favor keeping ICANN incorporated and headquartered in California, as agreed upon during CCWG-Accountability Work Stream 1. (See response for details)No. We do not see the probative value of this inquiry, which attempts to garner information where survey respondents have no actual or direct knowledge.No, we are not aware of any instances where ICANN has been unable to pursue its Mission because of its jurisdiction.For all of the reasons and rationale expressed as part of the Work Stream 1 consensus building process, we do not believe any alternative jurisdiction would provide any greater ability for ICANN to pursue its Mission.
Luis R. Furlán (Guatemala)NoNoNoNoNoNo
Karina Cortes (Puero Rico)NoNoYes. It has affected the litigation process positively given that Puerto Rico has political (and therefore juridical) ties with the United States. NoNoNo
Rika Tsunoda - MIC JapanNoI do not recognize such cases as those in the question.I do not recognize such cases as those in the question.NoNoNo
Carlos Vera (?)NoNoNoNoNoNo
Michael Graham (USA)NoNot to my knowledgeNot to my knowledgeNo(no response)No
Mohammad Reza Mousavi (Iran)YesUsing some of essential services regarding domain name and numbering are definitely banned because of the political conflicts (such as US sanctions) which we think they should be neutralized by ICANN jurisdiction.(no response)(no response)Domain name registrants in Iran which is subject to U.S. sanctions have been struggling with the arbitrary cancellation of their domain names by some registrars. Some registrars (both American and non-American) might stop providing services to countries sanctioned under the Office of Foreign Affairs Control (OFAC) regime. Sometimes they do this without prior notice. For instance several applications were submitted by Iranian entities and ICANN didn’t approve referring to applied sanctions. 2. As you may know, the United States District Court of Columbia issued an order for ICANN to seize Iran‘s internet domain (.ir) and IP addresses in order to pressure Iran for another totally refused settlement. Court papers have been served to ICANN and seek ownership of top-level domain names like .ir TLD, the ایران TLD and all Internet Protocol (IP) addresses being utilized by the Iranian government and its agencies. The court didn’t accept their application but it is considered as an outstanding major risk we would like your cooperation to avoid. (no response)
Just Net CoalitionYes(no response)(no response)(no response)....The FCC is just the more obvious US regulatory agency that can exercise authority over ICANN. As the digital phenomenon, and with it the significance of Internet names, begins to pervade every social sector, transforming it and becoming a central feature of it, the mandate of practically every US regulatory agency could impact ICANN's functions. This holds especially as sector-based gTLDs are allowed (often with their own rules for inclusion, for example .pharmacy) and when gTLDs are granted to entities that are key players in different sectors. Consequently, whether it is the Food and Drugs Authority or the Federal Trade Commission or the Federal Energy Regulatory Commission, or various state utility commissions in the US, and so on, there is no end to very possible US jurisdictional incursions upon ICANN’s functions. A sector regulator in the US, say in the area of health/ pharmaceuticals, transportation, hotels, etc, may find issues with the registry agreement conditions that ICANN allows for a sectoral gTLDs that is in the area of its mandate. Such a sector regulator might be able to force ICANN to either rescind or change the agreement, and the conditions under it. (long response - see submission)The best and most sustainable arrangement would be for ICANN to be incorporated under international law, which will need to be negotiated specifically for this purpose among countries. This is also the most democratic arrangement. It can be done without touching the current multistakeholder governance structure and community accountability mechanisms of ICANN. (long response - see submission)
QUEH Ser Pheng Singapore GAC RepresentativeNoNoNoNoNoNo
farzaneh badii - Internet governance Project (USA)YesIssue 1: Application for new gTLD registration proved to be difficult for residents from countries subject to the US sanctions. ICANN in the new gTLD applicant guidebook stated that: “In the past, when ICANN has been requested to provide services to individuals or entities that are not SDNs (specially designated nationals) but are residents of sanctioned countries, ICANN has sought and been granted licenses as required. In any given case, however, OFAC could decide not to issue a requested license.” (long response - see submission) Issue 2: Sometimes the registrars seem to follow OFAC sanctions even when it appears that they are not based in the U.S. For example Gesloten.cw, a registrar based in Curacao (Netherlands Antilles) follows OFAC regulations in its legal agreement with the registrants. Another example is Olipso, an ICANN accredited registrar based in Turkey (Atak Domain Hosting). Olipso also prohibits persons located in sanctioned countries from using its services due to OFAC.....Issue 3. Transferring money from countries under sanction to ICANN, due to US financial embargo on these countries, is very costly. (long response - see submissionICANN’s jurisdiction has affected .IR, .SY and .KP due to a case brought by a group of terrorist victims in the US that had a writ of attachment against the state of Iran. Relying on US laws and arguing that ICANN is incorporated in the US, the litigants argued that these ccTLDs are attachable property that could be seized by the plaintiff. It was a long legal battle but the importance of its effect on the operation of .IR and how the people of Iran who had registered domain names with .IR reacted is ignored during the discussions. (long response - see submission)We have reiterated some of the issues we said in this blog post, but please refer to it for other issues and more explanation. http://www.internetgovernance.org/2017/01/13/icanns-jurisdiction-sanctions-and-domain-names/ (no response)(no response)
Rita Forsi (Italy)YesYes. In 2013-2014 Italy was directly involved in the so-called “.wine issue”. Italy and European Union recognize the protection of Geographical Indications (GIs)1 through a very detailed regulation. The de facto non-recognition of GIs by US, and consequently by ICANN for example in its Registry Agreement and Uniform Domain Name Dispute Resolution Policy (UDRP)2 , caused almost two years of intense debate among GAC members (US, Australia and New Zealand against the rest of the GAC), between GAC and the ICANN Board, between Governments and ICANN3 . In line with the American approach to the GIs, domain names which consist, contains or unduly evoke GIs, have not been accorded consistent protection as those defined in the International Treaty or the European Regulation. For that reason, such domain names can be easily registered and used in a deceptive manner. Italy asked for protecting GIs by reserving the registration of their respective domain names to the rightholders, according to the TRIPS provisions, but ICANN was reluctant to impose such safeguards to the candidate Registries. In the end .wine issue was closed not in a satisfactory but at least acceptable manner for Italian rightholders, but this could serve as a good example to show how the US jurisdiction of ICANN affected the Italian business. Yes, for the .wine issue, Italy filed two Reconsideration Requests4 , one of which was signed by the then Minister of Economic Development, Ms. Federica Guidi5 . Both the Reconsideration Request were rejected (no response)(no response)In general, conflicts of jurisdiction on the Internet might have implications with respect to the “EU acquis”, e.g. as regards data protection and geographical indications; For that reason it is necessary that an Independent third party studies possible conflicts of laws and jurisdictions in relation to the Internet and, on that basis and if warranted, consider options for action in order to prevent these conflicts and to solve them should they occur.
Jesús Rivera Venezuela GAC Representative?NoNOT YET, particular cases are usually resolved with the intervention of competent national authorities and interested parties as well as with the participation and advisory role of WIPO staff.NoNoNo
Mzia Gogilashvili - Georgian govtNoNoNoNoNoNo
Mathieu Aubert (?)NoNo/. The hanlding of complaints like Whois inaccuracy is improvingNoNoNoNo
Lance Hinds (Govt Guyana)?No difficulties to date This has not been an issueI do not Not at this time, logic suggests however that ICANN may have challenges pursuing in countries under terrorist watch or US Economic SanctionsAll Jurisdictions have specific policies that may or not prevent ICANN from pursuing its mission in some instances
Ministry of ICT of Colombia | Jaifa Margarita Mezher Arango?Domain name services have not been affected by ICANN ́s jurisdictionFor the .co ccTLD, dispute resolution is carried out pursuant to the UDRP policies and no impacts have been observed.We do not have any links or copies.We do not have any documented material of instances where ICANN has been unable to comply with its mission. From our experience, we do not have any confirmation of any alternative jurisdiction for ICANN topursue its mission.
Ministry of Telecom and Mass Communications of the Russian FederationYesYES….We also believe that in addition to the review of actual confirmed ICANN failures to fulfill responsibilities due to its jurisdiction, it’s necessary to analyze risks of potential future ICANN’s failures to fulfill responsibilities due to its jurisdiction. Cross Community Working Group on Enhancing ICANN Accountability should not replace comprehensive risk analysis with just gathering information about actual incidents. We therefore recommend that Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) carry out comprehensive ICANN’s risk analysis and develop solutions to mitigate these risks during Work Stream 2. (long response - see submission)No information availableNoYES….We stand firm on the position that in addition to the post-factum review of actual confirmed ICANN failures to fulfill mission due to its jurisdiction, it’s necessary to review the following relevant substantive questions: • Why the resources of such a global public infrastructure like Internet are under the jurisdiction of the single state? • Why all country code top-level domains, ccTLD (for example, “.RU” or domains of any other country) should be under the jurisdiction of the single state? • Why geographical domains (for example, “.AFRICA”) should be under the jurisdiction of the USA? Such approach will help to avoid potential risks, in particular, when ICANN will have to implement the requirements of trade sanctions or court judgments of the certain jurisdiction. (long response - see submission)YES … In this regard, we consider necessary the detailed assessment of the equitable distribution of Internet governance resources on the basis of international treaties between states under the auspices of the United Nations (see UN Charter), beyond the limits of national jurisdictions. We urge to discuss different possible ways to address the issue of ICANN’s jurisdiction. For example, ICANN could be established pursuant to the international law. Another possible way is to separate main ICANN’s responsibilities (policies development, operational activities, and root zone management) over different jurisdictions. One more way to arrange ICANN’s activity and to address jurisdictional issue could be U.S. Government decision recognizing ICANN’s jurisdictional immunity in accordance with the United States International Organizations Immunities Act.
".swiss" domain registryYesYes … That has indeed been the case. The Swiss Confederation wished to manage the generic domain name ".swiss" as a Community TLD in the interest of the country and its people (the Swiss community as a whole.) However, the Government of Switzerland was not readily determined to enter into a Registry Agreement with ICANN, particularly in light of the problems potentially posed by the jurisdiction of ICANN.(long response - see submission)This has not been the case so far, but it could be in the future: - regarding the law applicable to the Registry Agreement in the event of a potential dispute that would oppose the ".swiss" registry to ICANN; - if a third party were to take a legal action against ICANN before a US Court opposing ICANN's assignment of ".swiss" or the management of ".swiss", or directly against the registry of ".swiss" for its management of the ".swiss" domain.In our view, the legal proceedings having taken place in the United States regarding the assignment process of the ".africa" generic domain by ICANN is revealing with regard to jurisdiction. The same could be said of the opening of a judicial proceeding to seize Iran's ccTLD ("American court rules that Israeli plaintiffs can't seize the Iranian ccTLD"; see http://www.internetgovernance.org/2016/08/04/plaintiffs-cant-seize-ir-court-rules/). To the ".swiss" registry, it seems extremely problematic that the US Courts may hear disputes regarding the management of a Community domain name as ".swiss," whose sole purpose is to serve the interests of the Swiss community.To our knowledge, ICANN has suspended the process of assignment of the generic domain ".africa" pending the ruling of the various US Courts involved.In our opinion, the issues mentioned above regarding applicable law and competent judge or arbiter suggest that additional flexibilities within the contractual arrangements are required in order to allow for a level playing field for registries established outside the US. In addition, the cases mentioned under 3 and the potential cases that may arise suggest that decisions affecting fundamentally the global community as a whole, or specific local communities, should be protected against undue interference by the authorities of one specific country. There are many examples of private organizations, based in different countries, which perform public interest functions, such as ICANN does, that are protected by tailor-made and specific rules, which, for instance, guarantee that their internal accountability and governance mechanisms and rules are not overridden by decisions stemming from authorities from the country they are established in. In our view, the International Committee of the Red Cross (ICRC) is a possible example which would allow ICANN to fulfill its mission whilst protecting itself from undesired and undesirable political or judicial interference. Like ICANN, the ICRC is of a hybrid nature. As a private association formed under sections 60 and following of the Swiss civil Code (RS 210; https://www.admin.ch/opc/fr/classified-compilation/19070042/index.html), its existence does not in itself stem from a mandate conferred by governments. By contrast, its functions and its activities are universal, prescribed by the international community, and based on international or global laws.