Yesterday, ICANN held its first meeting of the “Workstream 2” working group on ICANN accountability (WS2). One of the topics on the WS2 agenda is “jurisdiction.” It appears that some members of the WS2 team intend to address both the location of formation of ICANN, as well as the choice of law provisions in ICANN’s various agreements. The choice of law provisions, while of concern to individual entities that contract with ICANN, have limited repercussions. However, where ICANN is formed – and therefore the general jurisdiction under which ICANN operates – has far reaching implications. This is especially so for individuals and corporations who are used to ICANN operating under predictable United States law, with all of its due process and human rights protections and appeal mechanisms.
However, that could all be changing. At least one member of WS2 bluntly suggested that the WS2 group is “jurisdiction shopping.” Others in the audience however, (including me) raised concerns that changing ICANN’s jurisdiction would essentially undo the accountability improvements which the ICANN Board recently adopted (contingent on the IANA Transition moving forward). Those accountability improvements are based upon the relatively novel structure of California’s “sole designator” corporate construct. If ICANN’s formation jurisdiction changes, there would necessarily need to be a change away from ICANN being a California “sole designator” model.
The concern that ICANN will move its jurisdiction outside of the United States, and therefore may fall under the greater influence of a foreign power or attempt to evade orders issued by U.S. courts, has been one of the major fears of those who have sounded alarm bells with the “Transition” of ICANN away from oversight by the U.S. Department of Commerce. This Transition is scheduled to occur at the end of this September unless Congress takes an action to delay it (our prior blog posts address current efforts in Congress on that possibility). Some members of WS2 have suggested that a recommendation on ICANN’s jurisdiction could be adopted as soon as the ICANN meeting in Copenhagen in March of 2017.