[governance] ICANN/USG Affirmation of Commitments

[Paul Lehto]

The basic idea is that one can not legitimately regulate a person,
even if the regulation is described as "administration of technical
resources [of the Internet]" without also engaging in the process of
respecting the users enough to solicit, and obtain, their consent.  My
metaphor, too strong an image for some specific cases, but still apt
nevertheless, is that if one hasn't achieved legitimacy via the
consent of the governed (or to-be-governed) then one has no right to
rule - no right to "squash bugs."  In other words, humans are not mere
bugs that can be squashed or affected without checking in with them
and without legitimacy of the authority.

Nobody except valid legitimate governmental authorities directly or
indirectly elected or appointed by the public have the right to go
around affecting, diminishing or destroying user freedom on the
internet so long as that freedom is not hurting others.

To the above it's been said "but wait, we don't have global ELECTION
processes in place, so its not so easy to obtain this authority or
legitimacy."

To which I say:  Your authority therefore has zero legitimacy.  Law is
compulsion and force -- commands with the penalty of a civil monetary
liability or criminal sanction for their violation.  CONTRACT LAW IS
"PRIVATE LAW."  If one cannot have a domain or presence on the
internet without a contract then the contract is not a voluntary act
its required.  Therefore, outfits like ICANN are set up as
illegitimate private regulators, even if the scope of their regulation
is presently restricted.

One potential but unworkable way "out" of the private regulation
argument above is to say that ICANN is private, not public. That
doesn't work for two powerful reasons: (1) For years, until a few days
ago, ICANN was claimed to be under the direction and control of the
USG Dept of Commerce, a public entity, and
(2) As the US Supreme Court said in Lebron v Amtrak, what a government
or government corporation announces itself to be, even by statute, is
not only not controlling -- it's laughable to think it's reliable as a
solution to the issue.  Even Justice Scalia said it would be a
remarkable and unprecedented thing if the "government could evade its
constitutional obligations by mere resort to the fiction of the
corporate form [read ICANN corporation]".

Were the above principle of not trusting the actors in question in
fact valid, the FBI for example could easily claim none of their
actions were 4th amendment searches and seizures, and evade
independent legal review that way.

Thus, what ICANN or the DOC says about the case is not controlling for
any independent thinker or independent legal analysis, except when
ICANN or DOC make admissions against their own interest, since
admissions against one's own interest have a high degree of
reliability.

McTim, it's probably not fruitful to suggest your work in repeating
things to me is "tedious" as if I lack the intelligence to understand
or the ability to read.   What we are discussing is governance,
something that I have a strong interest in, not to mention a law
degree, and published articles on democracy with more on the way.  For
better or worse, in any justiciable case the legal system gets the
last word, including but not limited to the last word on disputes in
any expert terrain like computer science.

If there's some minutiae of computer science or "custom" of the
internet that I'm ignoring or seeming not to grasp, it's because those
details, each as a class, have no legal relevance to any issue of
fundamental importance to governance.

Paul Lehto, Juris Doctor

On 10/7/09, McTim <dogwallah at gmail.com> wrote:
> This is becoming tedious, but I'll make one last attempt to explain it to
> you:
>
> On Wed, Oct 7, 2009 at 7:52 PM, Paul Lehto <lehto.paul at gmail.com> wrote:
>>
> <yada yada snipped>
>>
>> If asking the persons whose rights and lives you wish to modify on the
>> internet is TOO MUCH TROUBLE
>
> gov'ts modify the rights and lives of Internet users, ICANN has a very
> narrow the very narrow role of administering technical resources via
> its IANA function.
>
>  for practical reasons, what right does
>> anyone have to go around squashing human beings like bugs
>
> now that's just silly.
>
> <more snippage>
>>
>> A legislature charged with doing the job of making laws, for example,
>> can't just assign that lawmaking task to a private body and refuse to
>> oversee it or to provide standards and further disclaim its
>> responsibilities as charged by law or the constitution.   Yet that is
>> perilously close to, and appears to be exactly what, the DOC
>> accomplished an the Affirmations agreement.
>
> Perhaps you don't understand the history behind this move.  During the
> Clinton Administration, the USG basically said "who wants this job,
> it's not really appropriate for us to do anymore".  To make a long
> (but interesting) story short, ICANN was created and took the "job".
> The goal all along was for it to be an independent body.  You are a
> dozen years too late to complain about it now, that ship has long
> since sailed.
>
> --
> Cheers,
>
> McTim
> "A name indicates what we seek. An address indicates where it is. A
> route indicates how we get there."  Jon Postel
>


-- 
Paul R Lehto, J.D.
P.O. Box #1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-4026
____________________________________________________________
You received this message as a subscriber on the list:
     governance at lists.cpsr.org
To be removed from the list, send any message to:
     governance-unsubscribe at lists.cpsr.org

For all list information and functions, see:
     http://lists.cpsr.org/lists/info/governance