[governance] US Congrerss & JPA

Tue Aug 11 06:39:43 EDT 2009

William Drake 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." 
Hi Bill

I also looked back a couple of emails where i had characterized an 
insistently expressed viewpoint that people who are seeking to get ICANN 
out of US control are wasting their time as being 'unabashed 
neo-colonial'. And you offered rather violent resistance - in terms of 
some very extreme expressions and advice of good manners - to my 
expression. Just for old memories sake :). No particular purpose here.

parminder

> 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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