[governance] present draft doesnt represent CS position

[Danny Younger]

Dear Parminder,

Re:  "So, please lets get real, and ask for political
oversight to go from US to an appropriate
inter-governmental system".

If I may rephrase, you are asking to transfer control
of the authoritative root from the U.S. Department of
Commerce to another entity.

In early 2000, the U.S. General Accounting Office was
asked to review the relationship between the
Department of Commerce and ICANN, and to answer (among
other questions) "whether the Department of Commerce
has the legal authority to transfer control of the
authoritative root server to ICANN".

Their reply is posted at
http://www.gao.gov/new.items/og00033r.pdf

Excerpts:

"It is unclear whether the Department has the
authority to transfer control of the
authoritative root server to ICANN. Although control
over the authoritative root server is not based on any
statute or international agreement, the government has
long been instrumental in supporting and developing
the Internet and the domain name system. The
Department has no specific statutory obligations to
manage the domain name system or to control the
authoritative root server. It is uncertain
whether transferring control would involve the
transfer of government property to a private entity.
However, to the extent it would, it is unclear if the
Department has the requisite authority to effect such
a transfer. Determining whether there is government
property involved may be difficult."

"The delegation from an agency to a private party is
sometimes referred to as the doctrine of
subdelegation, with the original delegation between
Congress and the agency.  In a delegation challenge,
the relevant inquiry is whether Congress intended to
permit the agency to delegate the authority conferred
by Congress and the issue is whether the federal
agency retains final reviewing authority. See National
Parks and Conservation Ass’n v. Stanton, 54 F.Supp.2d
7, 18-19 (D.D.C. 1999) (citations omitted). Here,
Congress has never delegated responsibility to manage
the domain name system to any federal
agency."

As I understand it, it still has not been determined
whether the U.S. Department of Commerce even has the
requisite authority to transfer control of the
authoritative root (whether it be to ICANN or to
another enitity).  Whether such a delegation would be
legal is a question that has in fact been posed by
Prof. Michael Froomkin in his 2001 paper "ICANN: The
Debate over Governing the Internet".  Essentially, the
question pivots on an understanding of the U.S.
non-delegation doctrine and whether it applies to the
scenario being envisioned.

While Civil Society may request that such a transfer
be initiated, be forewarned that even if there was a
preliminary acquiesence to the request, the
complications of the U.S. legal system might long
forestall the request becoming a reality (all the
moreso as it will probably require legislative action
to override property issues, and the current sense of
Congress opposes such an initiative).

In my view, the only real option for CS is making the
decision whether to advocate having governments direct
their ISPs to point to another root-server
constellation if the current management of the legacy
root is too vexing for Civil Society as a whole -- you
are not positioned to "take" that which another party
may be unwilling to yield.


	
		
__________________________________ 
Yahoo! Mail - PC Magazine Editors' Choice 2005 
http://mail.yahoo.com
_______________________________________________
governance mailing list
governance at lists.cpsr.org
https://ssl.cpsr.org/mailman/listinfo/governance