[governance] ICANN's legal status

[Milton L Mueller]

From: governance-request at lists.igcaucus.org [mailto:governance-request at lists.igcaucus.org] On Behalf Of Dominique Lacroix
Sent: Saturday, September 01, 2012 10:13 AM
To: governance at lists.igcaucus.org
Subject: Re: [governance] Big Porn v. Big Web Ruling Could Spell Trouble for ICANN / was Re: new gTLDs

Le 01/09/12 15:50, Chaitanya Dhareshwar a écrit :
Indeed ICANN *IS* doing a splendid job in terms of a clean simple non-bureaucratic process for the public.
Yes, of course, dear Chaitanya.
But, as in every activity, the world needs to know what sort of organization it is.
A US private one, submitted to commercial laws?
An international quasi-public organization, immune vis-a-vis commercial laws?
An American agency, working for the American nation interests through the world?

MM:
It is a California "nonprofit public benefit" corporation" (or at least, it is pretending to be one, until such time as it really pisses someone off and they challenge its nonprofit status).

Which means quite a bit to a California lawyer, and is meaningless to Indians, Chinese, Europeans and many, many others. For those who read English, the California public benefit corporation law is not that difficult to decipher; however, fully understanding the case law and interpretations around it would take some work.

However, as I have emphasized again and again, California Corp. law does not dictate what policies ICANN makes, it only structures the organizational form of the corporation that runs the policy development process. As legal frameworks go, it could be better or it could be worse. As such, those who insist that it would be more legitimate and accountable under international law are almost certainly mistaken, given that governments and international law would give the corporation all kinds of immunities that would actually insulate it from certain forms of legal accountability and public input. Not to mention the severe geopolitics that would be involved in getting 150 governments to agree on anything.

So to answer your specific questions:

It is a US private corporation, incorporated under nonprofit law in California, not commercial law.

I would say that it is ALSO an international organization, in that it is expressly charged with a global coordination role, but it is NOT immune from antitrust law -- it is illegal to collude to constrain trade whether or not you are a 'commercial' corporation. E.g., a nonprofit association of soybean producers could be subject to antitrust law.

ICANN itself is not working for American national interests throughout the world, but because of the remaining tethers to the Commerce Department, it is subject to more pressure from the US government than other governments. But it is important to understand that ICANN itself would prefer not to be tied to the USG via the IANA contract. ICANN's staff and CEO have made this clear in numerous filings and comments. Further, ICANN embodies a policy preference that is supported by the US - and many other governments - to keep the Internet relatively insulated from national governments.

Hope that answers your questions.

Disclaimer: the foregoing words were meant to be an accurate description of ICANN's legal status. Nothing in the foregoing should be construed as a defense of US hegemony, support for the Vietnam war, support for any ICANN decision or board member, Big Pharma, the RIAA, obesity, Chuck Norris or Clint Eastwood.


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