[governance] US Congrerss & JPA

Thu Aug 6 17:41:33 EDT 2009

I find most of Karl's assessment agreeable. I have always predicated my
thinking on the ICANN ecosystem on three pillars 1) ICANN is an American
corporation organized under the laws of California and, thusly, subscribes
to a certain cultural sensitivity; Karl's reference to a "combination in
restraint of trade" is an apt descriptor for the overiding interest 2) The
USG has declared a "national security interest" of the Internet which gives
political cover for any and all efforts in the Congress of the United States
to keep ICANN tethered  3)  ICANN's standing in the world is based on some
contracts with the USG - the "pyramid of contracts" term used by Karl is
definitive - and will remain only to the extent those contracts remain in
force.

I participate thru the At-large community in ICANN affairs where my goal has
always been to give a voice where it might not have otherwise been heard and
to moderate impacts of certain decisions on some groups.  I have always felt
that ICANN - the corporation - needs the At-Large more than it lets on
precisely because of the difficulties it finds presenting itself to the
world as a global public good.  The Europeans are troubled that the US has
pride of place in ICANN and they are left out of the decision-making.  They
are now insistently demanding a place at the table. Their sleight of hand
here is that they are dressing up the proposal by seeking to draft
significant others - read those to be Brazil, China plus plus - to their
cause via their I-20 coalition proposal.

So while I agree with Karl that the real issue ought to be about the jobs
that must be done, realpolitik says it does matter where the job is done and
who's responsible for doing that job.

It matters because of what Faoud terms the "development agenda" that "Third
World countries" would wish to promote. Those of us who struggle on the
periphery and see the possibilities of the Internet for our own national
economic and social developemnt also think we ought to have a voice in
matters that would affect us even more acutely than formerly. I understand
and share his contextual sensibilities.

It matters because the EC has recognized the critical importance of the
Internet to social and economic well-being of its citizens and is impatient
to act to protect what it perceives as their rights.

It especially matters because not only does the American cognoscenti shares
the views of the EU but a significant segment of these have added a slight
twist.  They acknowledge the Internet is now integral to the operations of
the war-making and waging apparatus of the state, no question.  But they
have also declared that continued economic vitality and viability and the
social ascendancy of the United States are national security interests
second to none.  My American experience says that invoking the national
security interest in any public policy issue makes that issue a "third rail"
in American polity.  Which speaks to Karl's "man/woman who lost the
Internet" sensitivity of the politicians.

History repeats itself.   Bone up on what transpired re the Treaty of
Tordesillas - a Papal Bull -  of 1494.  And take note of the French King's -
Francis I - alleged grouse; "Am I not a Christian and Prince?".

Carlton Samuels

On Thu, Aug 6, 2009 at 1:34 AM, 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--
>
>
> ____________________________________________________________
> You received this message as a subscriber on the list:
>    governance at lists.cpsr.org
> To be removed from the list, send any message to:
>    governance-unsubscribe at lists.cpsr.org
>
> For all list information and functions, see:
>    http://lists.cpsr.org/lists/info/governance
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.igcaucus.org/pipermail/governance/attachments/20090806/f9a41017/attachment.htm>
-------------- next part --------------
____________________________________________________________
You received this message as a subscriber on the list:
     governance at lists.cpsr.org
To be removed from the list, send any message to:
     governance-unsubscribe at lists.cpsr.org

For all list information and functions, see:
     http://lists.cpsr.org/lists/info/governance