<table cellspacing="0" cellpadding="0" border="0" ><tr><td valign="top" style="font: inherit;"><DIV>Ian please enlighten me on this subject of asking the right questions. Where some silly folks gave me my degrees the Only Question was to "Always Question Authority".</DIV>
<DIV> </DIV>
<DIV>The biggest problem around Internet Governance is that all the Questioneers seem to be claiming Authority. </DIV>
<DIV> </DIV>
<DIV>As to your "huge dilema" about asking the simple question "what we need for internet governance". I will give you a secret: Simply get up every morning and quite simply ask it.</DIV>
<DIV>How loud is your choice.<BR><BR>--- On <B>Thu, 8/6/09, Ian Peter <I><ian.peter@ianpeter.com></I></B> wrote:<BR></DIV>
<BLOCKQUOTE style="PADDING-LEFT: 5px; MARGIN-LEFT: 5px; BORDER-LEFT: rgb(16,16,255) 2px solid"><BR>From: Ian Peter <ian.peter@ianpeter.com><BR>Subject: Re: [governance] US Congrerss & JPA<BR>To: governance@lists.cpsr.org, "Karl Auerbach" <karl@cavebear.com><BR>Cc: igf_members@intgovforum.org<BR>Date: Thursday, August 6, 2009, 7:03 AM<BR><BR>
<DIV class=plainMail>I have to agree with the thrust of what Karl is saying here, and yes, we are<BR>not yet even asking the right questions in terms of deciding what internet<BR>governance might mean.<BR><BR>When I last did any serious analysis of ICANN in 2004 I remember coming up<BR>with three phrases - eccentric in structure, illogical in scope, and<BR>incomplete in terms of internet governance. Though essentially disinterested<BR>in ICANN's goings on since then, I havent seen anything to convince me<BR>otherwise.<BR><BR>To me then it is a huge dilemma how to move the IGF debate into an<BR>examination of what we need in terms of internet governance rather than a<BR>battle over an organisation that is doing something else.<BR><BR><BR><BR><BR>On 6/08/09 4:34 PM, "Karl Auerbach" <<A href="http://us.mc839.mail.yahoo.com/mc/compose?to=karl@cavebear.com" ymailto="mailto:karl@cavebear.com">karl@cavebear.com</A>> wrote:<BR><BR>> On 08/05/2009 04:17
PM, Vanda Scartezini wrote:<BR>>> I do believe the Congressmen in the US has the right to advocate the<BR>>> permanence of ICANN under the US control, as I believe any Congress in the<BR>>> world will react if in their places. But I don't see a reason to not<BR>>> continue to state the need to ICANN to become really international.<BR>> <BR>> This is a *very* complicated issue.<BR>> <BR>> First off, there is the simple political recognition that no politician<BR>> in the US is going to risk the political kiss-of-death of being labeled<BR>> by an opponent as "the man/woman who lost the internet."<BR>> <BR>> And since ICANN can demonstrate no independent claim of control or (and<BR>> I am nervous even about uttering the word) "ownership" over DNS and TLDs<BR>> and address spaces, ICANN without the consent of the US' NTIA would be<BR>> an ICANN without a clear source of authority to
regulate those things.<BR>> <BR>> There is also the legal mess that would occur were ICANN to try to move.<BR>> Just the issue of moving the money (and the contractual rights to<BR>> receive that money) that ICANN receives and spends would raise questions<BR>> about the rights of creditors (one of the the largest of which is Jones<BR>> Day, the law firm that formed ICANN and that still represents ICANN<BR>> which would find itself in a conflict-of-interest situation on these<BR>> matters.)<BR>> <BR>> Then there is the problem in that ICANN rules via a pyramid of contracts<BR>> (and in the case of .com, settlements of lawsuits.) Contracts (and<BR>> settlements) do not exist in a vacuum - they are very sensitive to the<BR>> jurisdictional context in which they are interpreted. A while back I<BR>> saw a draft of an ICANN plan to splatter itself into multiple legal<BR>> entities in
multiple countries, often under very specialized and arcane<BR>> national laws. That would mean that a registrar/TLD in one place would<BR>> have a contract with ICANN-clone in country A that would be interpreted<BR>> under the laws of country A and another registrar would have a contract<BR>> with an ICANN-clone in country B that would be interpreted under the<BR>> laws of country B. That would mean not only uncertainty for registrants<BR>> but would create a kind of forum shopping for those who want TLDs. It<BR>> would be a legal Gordian knot without a convenient Alexander.<BR>> <BR>> Then there is the fact that the job done by ICANN has virtually nothing<BR>> to do with internet stability. ICANN is a medieval trade guild in<BR>> modern garb that, like its ancient counterpart, is mainly a body of<BR>> trade (and trademark) protection - what we call today "a combination in<BR>> restraint of
trade." The point here is that do we really want to<BR>> undertake the vast effort of creating a new kind of international entity<BR>> when the particular job being done is not one that really deserves doing<BR>> in the first place and which tends to run contrary to not only our<BR>> modern notions of a fair and open marketplace but also which has<BR>> operated on principles of a rather oligarchical and anti-democratic nature?<BR>> <BR>> I happen to live in ICANN's legal home - California. (In the US,<BR>> corporations are creatures of State law, not of Federal law. ICANN<BR>> merely has a Federal tax exemption.) Since California is my home I tend<BR>> to look on the legal foundation for ICANN as being something that is not<BR>> all that bad. I can only intellectually feel the force of the idea of<BR>> ICANN as an instrument of United States hegemony.<BR>> <BR>> I can say that
California does have some rather decent and well minded<BR>> laws about how public benefit corporations are supposed to operate.<BR>> (Mind you, I had to go to court to get ICANN to abide by some of the<BR>> most clearly articulated of those laws.) I would suspect that if we<BR>> search the world for good homes for bodies of internet governance that<BR>> California would be, except for the fact that it is part of the US, as<BR>> good as most of the better places.<BR>> <BR>> What I'm saying is that in the reaction to have ICANN fly away from the<BR>> US it is well worth considering where it must land, as land it must.<BR>> <BR>> Personally I don't believe that the internet would suffer one lost<BR>> packet or one misconducted TCP connection if ICANN were simply to vanish<BR>> into a poof of money-scented smoke. The main loss would be a very<BR>> pliant tool for trademark protection attorneys.<BR>>
<BR>> But we do need a body (or bodies) to do the jobs that ICANN was supposed<BR>> to have done but which it has not done - to assure that the name<BR>> resolution system of the internet is stable, which means in particular<BR>> that DNS name query packets are quickly, efficiently, and accurately<BR>> translated into DNS name response packets without prejudice against any<BR>> query source or query subject.<BR>> <BR>> I consider the creation of a body to to those jobs, or better yet,<BR>> several bodies, each to do one precisely defined job, is more important<BR>> than the question of the legal home of each of those bodies.<BR>> <BR>> I submit that if we start to examine the jobs that we really want done<BR>> we will find that many of them (but not all) are largely clerical and<BR>> non-discretionary tasks that would not raise concern about where they<BR>> are done.<BR>> <BR>> I suggest that we will
find our tasks easier and more likely to succeed<BR>> if we come up with the job descriptions for the jobs that we want to<BR>> have performed before we undertake to move ICANN.<BR>> <BR>> --karl--<BR>> <BR>> ____________________________________________________________<BR>> You received this message as a subscriber on the list:<BR>> <A href="http://us.mc839.mail.yahoo.com/mc/compose?to=governance@lists.cpsr.org" ymailto="mailto:governance@lists.cpsr.org">governance@lists.cpsr.org</A><BR>> To be removed from the list, send any message to:<BR>> <A href="http://us.mc839.mail.yahoo.com/mc/compose?to=governance-unsubscribe@lists.cpsr.org" ymailto="mailto:governance-unsubscribe@lists.cpsr.org">governance-unsubscribe@lists.cpsr.org</A><BR>> <BR>> For all list information and functions, see:<BR>> <A href="http://lists.cpsr.org/lists/info/governance"
target=_blank>http://lists.cpsr.org/lists/info/governance</A><BR><BR><BR>____________________________________________________________<BR>You received this message as a subscriber on the list:<BR> <A href="http://us.mc839.mail.yahoo.com/mc/compose?to=governance@lists.cpsr.org" ymailto="mailto:governance@lists.cpsr.org">governance@lists.cpsr.org</A><BR>To be removed from the list, send any message to:<BR> <A href="http://us.mc839.mail.yahoo.com/mc/compose?to=governance-unsubscribe@lists.cpsr.org" ymailto="mailto:governance-unsubscribe@lists.cpsr.org">governance-unsubscribe@lists.cpsr.org</A><BR><BR>For all list information and functions, see:<BR> <A href="http://lists.cpsr.org/lists/info/governance" target=_blank>http://lists.cpsr.org/lists/info/governance</A><BR></DIV></BLOCKQUOTE></td></tr></table>