Since the expiration of the IANA contract in place between the United States and ICANN last fall, the ICANN community has been working on accountability concerns through what is known as “Workstream 2.” The oddly named Workstream 2 has several subtopics, one of which is jurisdiction. Many of the participants in the jurisdiction work have concluded that a change in the formation jurisdiction of ICANN, as opposed to far less profound questions such as the selection of choice of law or jurisdiction in ICANN’s contracts, would undo much of the work completed in “Workstream 1,” which enhanced accountability mechanisms for which California law is fundamental. A few other participants, however, have consistently introduced and re-introduced the idea that ICANN should abandon California jurisdiction and reform in a new jurisdiction outside of the United States.
At the ICANN 58 meeting in Copenhagen, I asked the ICANN Board in its meeting with the GNSO Council (upon which I sit on behalf of the Intellectual Property Constituency) to directly and affirmatively state that ICANN’s formation jurisdiction was not “up for grabs.” Dr. Steven Crocker, the ICANN Board Chair, stated that while he was puzzled that the issue keeps resurfacing, since he thought it was already settled, the Board was concerned that an affirmative statement may just encourage those who are looking for a formation jurisdiction change to redouble their efforts. Of course, an equal argument could be made that a vacuum of silence could have the same effect and that the silence results in discomfort for those who, like Dr. Crocker, believe that this issue was settled prior to the expiration of the IANA contract.
In any event, Dr. Crocker’s statement highlights that the “leave California” effort faces an uphill battle. However, it also serves as a warning to those who believe that an ICANN formed out of U.S. jurisdiction would be subject to greater governmental interference than it would ever face in the U.S. which affirmatively withdrew its oversight. Since the Board will apparently not affirmatively settle the formation jurisdiction question once and for all, those who rely on a stable and secure Internet for their business (essentially anyone who uses email and has a website) must remain vigilant on this issue and should participate directly, or through counsel, in the jurisdiction working group to ensure a positive outcome.