[governance] US Congrerss & JPA

[Karl Auerbach]

On 08/09/2009 03:26 PM, Milton L Mueller wrote:

> 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????

Given the nonesense that is flying around the US political system right 
now - for example the "birthers" denial that our President is 
Constitutionally entitled to hold office - I don't think it is 
unrealistic to believe that those who want to replace our current 
Congress Critters in next year's elections will use any weapon that 
comes to hand, including asserting that dropping the oversight of the 
Memorandum of Understanding/JPA (same thing) would be near treasonous 
abandonment of John Wayne and America.

The world of US political discourse is so negatively charged that we 
have to realize that many Congress Critters could realistically feel 
that we are facing a Neo-McCarthy era in which being negatively labeled 
by an opponent could lead to the end of political effectiveness if not a 
political career.

Of course in reality we would hope that Congress Critters would act with 
reason and insight.  But is it wrong to leaven hope with a bit of 
recognition of the poisonous context in which Congress Critters have to act?

> 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.

When I read ICANN's plan for splattering itself it was pretty clear that 
the intent was to abandon most ties with the US except as necessary to 
maintain existing contracts.  It was a bizarre system of corporations in 
various places with unique laws in which it seemed that the board of 
ICANN-US would also occupy seats on each ICANN-elsewhere.  And 
registrars and registries would make contracts with the nearby 
ICANN-somewhere under the laws of that -somewhere.  It would be a mess 
of divine proportions that would totally frustrate even the most vacuous 
Enron-like conception of accountability.

It is extraordinarily difficult to say that ICANN is California without 
also saying that ICANN is USA.  The laws of the two places are very 
interdependent - for example the duties of board members, although 
mainly defined by California, are strongly affected by Federal laws 
about immunity of volunteer directors and the activities of bodies, such 
as ICANN, that have Federal tax exemptions.

I like California law (I am, of course, biased) and I operate California 
corporations.  But that means that I am more than painfully familiar 
with how readily The Feds reach in and tell us what to do and who to do 
it with (or more frequently, who not to do it with.)


> 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.

I'd be happy to accept that, but I don't know how that could be in 
concrete terms.

We have to remember that ICANN was formed in a whirl in which 
foundations of authority were simply ignored in a shell-game like 
atmosphere.  That lack of clear lines is coming back to haunt.  ICANN 
and NTIA's source of authority is more like that of Emperor Norton of 
San Francisco than the former Emperors of China, i.e. a product of 
assertion and short-term acquiescence by a few rather than long-term 
acquiescence by many.

		--karl--

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