[governance] US Congrerss & JPA

[Ian Peter]

Hi Bill,

There is of course a distinction between operating under Californian law and
the JPA.




On 7/08/09 7:52 AM, "William Drake" <william.drake at graduateinstitute.ch>
wrote:

> 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--
>>>>> 
>>>>> ____________________________________________________________
>>>>> 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
>>>> 
>>>> 
>>>> ____________________________________________________________
>>>> 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
>>> 
>>> ***********************************************************
>>> 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
>>> ***********************************************************
>>> 
>   
> ____________________________________________________________
> 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


____________________________________________________________
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