Panel Assessing Whether ICANN's US Jurisdiction Hurts Accountability, Domain Name Owners
ICANN's status as a California nonprofit headquartered in the U.S. has raised hackles for years, and now a working group is exploring if location affects accountability and policies. In February, the Cross Community Working Group on Enhancing ICANN Accountability's jurisdiction subgroup sought input. It received about 20 responses, most citing no difficulties, and posted a list of proposed issues for the subgroup to consider. Two key concerns are whether U.S. foreign policy hampers ICANN from approving registries and accrediting registrars, and what impact jurisdiction has on delegation of country code top-level domain names (ccTLDs).
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The Internet Governance Project highlighted these issues in April comments and a July 20 blog. It said as part of its foreign policy, the U.S. imposes sanctions on other countries that when applied to domain name registrars and registries "can hamper access to the domain name system by innocent users and businesses." The Office of Foreign Assets Control (OFAC) maintains a list of designated nationals U.S. persons can't transact with, IGP said. Without a general license, even those not listed often can't freely transact with U.S. persons but must get an OFAC license, it said. That involves a long process and ICANN doesn't commit itself to applying for a license for registrars, it said.
U.S. laws such as 1914's Trading With the Enemy Act, the Cuban Assets Control Regulation and Iranian Sanctions and Transaction Regulation govern many aspects of transactions between those countries and the U.S., IGP wrote. The U.S. also can enforce sanctions through executive orders that could affect domain name system (DNS) customers, it said: Use of executive orders can create uncertainty as presidential administrations change.
Asked whether the subgroup is likely to act given the few responses, IGP Executive Director Farzanah Badiei said: "We can take concrete actions and advocate for resolving the issues ... or at least express them and establish that they are valid issues that ordinary customers of DNS face." Actions could include changing ICANN policies, clarifying complicated OFAC issues for DNS users and seeking a general OFAC license, said Badiei, a panel member. ICANN jurisdictional issues should be resolved through legal or policy solutions that come from within the organization, she said. Changing ICANN's jurisdiction or making it an international body, as some prefer, "is not the answer."
The sanctions issue also was raised by the Just Net Coalition, comprising several dozen organizations and individuals from different regions concerned with the relationship between internet governance, human rights and social justice. "The US government has an absolute right to determine which country it may, at any time, put under OFAC sanctions," said the coalition. "Global governance functions stand on extremely shaky grounds, when one government, whenever it wants, can decide which country(ies), and its residents, to exclude from the benefits of such governance." The Information Technology Organization of Iran said "domain name registrants in Iran which is subject to U.S. sanctions have been struggling with the arbitrary cancellation of the domain names by some registrars." Some U.S. and non-U.S. registrars might stop providing services to countries sanctioned under the OFAC regime, it said.
ICANN jurisdiction also affects litigation and dispute resolution, respondents said. Lawsuits to seize the ccTLDs of Iran (see 1608020055) and the Congo could have forced ICANN to breach its own processes, said the Just Net Coalition. U.S. courts "accepted their jurisdiction in the matter of ccTLDs of sovereign nations, which points to a clear possibility that at a different time, with a different set of contested facts, a US court might force ICANN to interfere with another country's ccTLD." The EC cited conflicts of jurisdiction in the context of the new gTLD program, with inconsistencies with EU legislation on the protection of geographic indicators covering .wine and .vin. The dispute eventually was resolved "after long and protracted discussions," it said.
Data protection in Whois directories is also an issue, said the EC. It received several complaints from EU citizens about violations of their privacy rights in relation to the processing of personal data by the Whois database.