[governance] US Congrerss & JPA

[William Drake]

Hi Ian,

On Aug 6, 2009, at 9:03 AM, Ian Peter wrote:

> I have to agree with the thrust of what Karl is saying here, and  
> yes, we are
> not yet even asking the right questions in terms of deciding what  
> internet
> governance might mean.

This surprised me so I looked back at save mail from when we did the  
JPA statement a couple months ago.  At that time you likened ICANN's  
linkage to the US government to colonialism and said that ICANN should  
exercise non-violent resistance if "the colonial powers decide to  
continue the JPA."  How does that fit with the view Karl lays out in  
his helpful post?

Just wondering,

Bill

>
> When I last did any serious analysis of ICANN in 2004 I remember  
> coming up
> with three phrases - eccentric in structure, illogical in scope, and
> incomplete in terms of internet governance. Though essentially  
> disinterested
> in ICANN's goings on since then, I havent seen anything to convince me
> otherwise.
>
> To me then it is a huge dilemma how to move the IGF debate into an
> examination of what we need in terms of internet governance rather  
> than a
> battle over an organisation that is doing something else.
>
>
>
>
> On 6/08/09 4:34 PM, "Karl Auerbach" <karl at cavebear.com> wrote:
>
>> 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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>
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***********************************************************
William J. Drake
Senior Associate
Centre for International Governance
Graduate Institute of International and
   Development Studies
Geneva, Switzerland
william.drake at graduateinstitute.ch
www.graduateinstitute.ch/cig/drake.html
***********************************************************

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