[governance] US Congrerss & JPA

[Karl Auerbach]

On 08/05/2009 04:17 PM, Vanda Scartezini wrote:
>   I do believe the Congressmen in the US has the right to advocate the
> permanence of ICANN under the US control, as I believe any Congress in the
> world will react if in their places. But I don't see a reason to not
> continue to state the need to ICANN to become really international.

This is a *very* complicated issue.

First off, there is the simple political recognition that no politician 
in the US is going to risk the political kiss-of-death of being labeled 
by an opponent as "the man/woman who lost the internet."

And since ICANN can demonstrate no independent claim of control or (and 
I am nervous even about uttering the word) "ownership" over DNS and TLDs 
and address spaces, ICANN without the consent of the US' NTIA would be 
an ICANN without a clear source of authority to regulate those things.

There is also the legal mess that would occur were ICANN to try to move. 
  Just the issue of moving the money (and the contractual rights to 
receive that money) that ICANN receives and spends would raise questions 
about the rights of creditors (one of the the largest of which is Jones 
Day, the law firm that formed ICANN and that still represents ICANN 
which would find itself in a conflict-of-interest situation on these 
matters.)

Then there is the problem in that ICANN rules via a pyramid of contracts 
(and in the case of .com, settlements of lawsuits.)  Contracts (and 
settlements) do not exist in a vacuum - they are very sensitive to the 
jurisdictional context in which they are interpreted.  A while back I 
saw a draft of an ICANN plan to splatter itself into multiple legal 
entities in multiple countries, often under very specialized and arcane 
national laws.  That would mean that a registrar/TLD in one place would 
have a contract with ICANN-clone in country A that would be interpreted 
under the laws of country A and another registrar would have a contract 
with an ICANN-clone in country B that would be interpreted under the 
laws of country B.  That would mean not only uncertainty for registrants 
but would create a kind of forum shopping for those who want TLDs.  It 
would be a legal Gordian knot without a convenient Alexander.

Then there is the fact that the job done by ICANN has virtually nothing 
to do with internet stability.  ICANN is a medieval trade guild in 
modern garb that, like its ancient counterpart, is mainly a body of 
trade (and trademark) protection - what we call today "a combination in 
restraint of trade."  The point here is that do we really want to 
undertake the vast effort of creating a new kind of international entity 
when the particular job being done is not one that really deserves doing 
in the first place and which tends to run contrary to not only our 
modern notions of a fair and open marketplace but also which has 
operated on principles of a rather oligarchical and anti-democratic nature?

I happen to live in ICANN's legal home - California.  (In the US, 
corporations are creatures of State law, not of Federal law.  ICANN 
merely has a Federal tax exemption.)  Since California is my home I tend 
to look on the legal foundation for ICANN as being something that is not 
all that bad.  I can only intellectually feel the force of the idea of 
ICANN as an instrument of United States hegemony.

I can say that California does have some rather decent and well minded 
laws about how public benefit corporations are supposed to operate. 
(Mind you, I had to go to court to get ICANN to abide by some of the 
most clearly articulated of those laws.)  I would suspect that if we 
search the world for good homes for bodies of internet governance that 
California would be, except for the fact that it is part of the US, as 
good as most of the better places.

What I'm saying is that in the reaction to have ICANN fly away from the 
US it is well worth considering where it must land, as land it must.

Personally I don't believe that the internet would suffer one lost 
packet or one misconducted TCP connection if ICANN were simply to vanish 
into a poof of money-scented smoke.  The main loss would be a very 
pliant tool for trademark protection attorneys.

But we do need a body (or bodies) to do the jobs that ICANN was supposed 
to have done but which it has not done - to assure that the name 
resolution system of the internet is stable, which means in particular 
that DNS name query packets are quickly, efficiently, and accurately 
translated into DNS name response packets without prejudice against any 
query source or query subject.

I consider the creation of a body to to those jobs, or better yet, 
several bodies, each to do one precisely defined job, is more important 
than the question of the legal home of each of those bodies.

I submit that if we start to examine the jobs that we really want done 
we will find that many of them (but not all) are largely clerical and 
non-discretionary tasks that would not raise concern about where they 
are done.

I suggest that we will find our tasks easier and more likely to succeed 
if we come up with the job descriptions for the jobs that we want to 
have performed before we undertake to move ICANN.

		--karl--

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