[governance] US Congrerss & JPA

[Deirdre Williams]

And also, surely, a distinction between the US Department of Commerce
and the US Government?
Deirdre

2009/8/6 Ian Peter <ian.peter at ianpeter.com>:
> 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--
>>>>>>
>>>>>> ____________________________________________________________
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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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>
>
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-- 
“The fundamental cure for poverty is not money but knowledge" Sir
William Arthur Lewis, Nobel Prize Economics, 1979
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