[governance] US Congrerss & JPA

[Milton L Mueller]

Karl
I think your heart is in the right place on these issues but you do the world a disservice by lending credence to this bogus "who lost the Internet" argument. Maybe if we were talking about the IANA contract....but the JPA????

Your points about contracts are money flows are very good, but ICANN can remain rooted in California law - or any other jurisdictional basis for private contracts - without having an overlay of a politicized national government department looking over its shoulder. 

In other words, don't confuse the issue of US unilateral oversight/control with the issue of ICANN's jurisdictional home for private law. They are quite distinct. 

> -----Original Message-----
> From: Karl Auerbach [mailto:karl at cavebear.com]
> Sent: Thursday, August 06, 2009 2:34 AM
> To: governance at lists.cpsr.org; Vanda Scartezini
> Cc: wolfgang.kleinwaechter at medienkomm.uni-halle.de;
> igf_members at intgovforum.org
> Subject: Re: [governance] US Congrerss & JPA
> 
> 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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