[governance] US Congrerss & JPA

[William Drake]

Hi Ian,

Karl appears to be saying, among other things, that it would be  
difficult to impossible to break the USG link and/or relocate, that  
California law is pretty good, etc.  And you were equating the USG  
link with colonial domination to be resisted.  These seem to me to be  
two rather different views, so I wasn't clear how you could embrace  
both.

Meanwhile, to those of us actually involved in the beast, it is  
becoming increasingly clear that an ICANN accountable only to itself  
would be an utter disaster for civil society.  When it's posted, have  
a look at Brenden's ex parte filing with NTIA which concludes that IGP  
believes ICANN's disregard for CS and its own nominal procedural  
protections "constitute a fundamental inability of ICANN to satisfy  
the conditions enumerated in the JPA."

Best,

Bill

On Aug 6, 2009, at 9:34 PM, Ian Peter wrote:

> 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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