[governance] US Congrerss & JPA

Thu Aug 6 15:59:03 EDT 2009

2009/8/6, Ian Peter <ian.peter at ianpeter.com>:
> Hi Bill,
>
> Not sure where those two views are at odds with each other, except that in
> suggesting ICANN should resist the JPA I am perhaps seen to be suggesting
> that an ICANN post JPA would per se represent complete, logical and useful
> Internet governance. I don't think that at all. I just think that is a good
> step for ICANN towards some sort of legitimacy in its particular incomplete
> and somewhat illogical role in internet governance. If it is to be some sort
> of useful building block in future internet governance, that would be a good
> start IMHO.
>
> I don't see where what I am saying is at odds with Karl, but perhaps suggest
> to me where you think this is so.
>
> Ian
>
>
> On 6/08/09 10:22 PM, "William Drake" <william.drake at graduateinstitute.ch>
> wrote:
>
>> 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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