Issue:

Within the wide "class of functions" etc related powers to various US executive and regulatory agencies, they can weigh upon ICANN, as a US based organisation fully subject to US jurisdiction", to act or not act in a particular way, which it takes to be in furtherance of the public interest that they have been mandated to uphold. The regulatory agency which directly relates to ICANN's core functions is the Federal Communications Commission or FCC which has within its express mandate to manage the numbering issue in the telcom sector. As per current interpretation of law, Internet in the US is considered as a telecom service, and therefore names and numbering for the Internet comes under FCC's remit. Currently, FCC has "forborne" its remit on Internet's names and numbering system. The very meaning of such forbearance is to accept its possible jurisdiction but not exercise it at a particular point or under particular circumstances. FCC has earlier forborne its title 2 regulatory powers over the Internet but chose to assert them last year with their "net neutrality" ruling. A similar thing can be done with respect to Internet's names and numbering system, if ICANN thinks that it needs to act to uphold US public interest. No such powers of interventions are available to corresponding regulators of other countries. Such unilateral jurisdiction of FCC over ICANN therefore is illegitimate and undemocratic from a global point of view.

FCC is the US regulatory agency most directly concerned with ICANN functions. However, the work of ICANN connects to almost all sectors, many of which have dedicated regulatory agencies in the US. FDA for instance may want to force its will on exclusion-inclusion or other principles that .pharma or .health may lay. So may the transport regulator with .cars, and .auto, or whatever. There is no end to such possibilities.

Regulatory is one class of more specialised executive action, but many other executive agencies, right down from the office of the President of the USA itself, have various kinds of powers over all US organisations, including the ICANN. This is problematic in the same way as other executive/ regulatory powers that we have discussed.

Solution:

It is not possible to make a list of all executive/ regulatory powers that impinge upon ICANN. That is the very nature of state organisation and power. In the circumstances, the only solution to this problem is a general immunity under the US International Organisations Immunities Act, with proper customisation and exceptions for ICANN to enable to be able to perform its organisational activities from within the US. The chief exception I understand would be the application of California non profit law.