[governance] ICANN/USG Affirmation of Commitments

[Paul Lehto]

my reply is directly below this short original message:

On 10/9/09, Thomas Lowenhaupt <toml at communisphere.com> wrote:
> Paul,
>
>  I have been following your comments on the AoC quite carefully and look
> forward to the next. I say this by way of encouraging you not to be
> dissuaded by claims that your comments are "tedious." Anything but.
>
> Keep up the good work.
>
> Tom Lowenhaupt
>
> P.S. The following paragraph, clipped from the below, was not quite clear.
>
>> One potential but unworkable way "out" of the private regulation
>> argument above is to say that ICANN is private, not public. That
>> doesn't work for two powerful reasons: (1) For years, until a few days
>> ago, ICANN was claimed to be under the direction and control of the
>> USG Dept of Commerce, a public entity, and
>> (2) As the US Supreme Court said in Lebron v Amtrak, what a government
>> or government corporation announces itself to be, even by statute, is
>> not only not controlling -- it's laughable to think it's reliable as a
>> solution to the issue.  Even Justice Scalia said it would be a
>> remarkable and unprecedented thing if the "government could evade its
>> constitutional obligations by mere resort to the fiction of the
>> corporate form [read ICANN corporation]".
>>
>> Were the above principle of not trusting the actors in question in
>> fact valid, the FBI for example could easily claim none of their
>> actions were 4th amendment searches and seizures, and evade
>> independent legal review that way.
>

These paragraphs begin to address how the release of control and
review authority on behalf of the public might be challenged.  In any
such challenge, of course plaintiffs would want to assert rights
including but not limited to Constitutional rights.  In response to
such claims, defendant corporations routinely claim in privatization
situations like this a correct statement of legal doctrine in the US,
namely that the Constitution does not apply to the private sector
including of course corporations, it only provides rights against the
government and its actions.

The fact that, with narrow exception like the 13th amendment outlawing
slavery which was intended to and held to extend to private
slaveowners, this statement is broadly true (that the Constitution
only works as against the government) means the following:

Privatization of CORE government functions (not, say, leasing a
photocopier) means that a core function has been transferred OUTSIDE
the umbrella of rights and protections afforded by the Constitution,
and thus what seems from one perspective to be an efficiency-move to
the private sector (regardless of the merits of such claims) is in
fact a profound anti-rights move because it strips the core activity
in question of rights and protections the people previously enjoyed.

As a result of the above, in privatization cases like private prisons,
litigation ensues and the end result is a complicated mixed bag of
results, with some courts holding that the rights continue to apply
because the corporation has "stepped into the shoes" of the
government, and in fact and practice the corporation IS the government
because it's taken on an important function, and other courts finding
differences because of the private sector aspects.

I realized as plaintiff in a case about the privatization of vote
counts into "trade secret" computer software that I was researching
(To assist my attorney) virtually every provision in the constitution,
and that in direct effect the move to privatize, following by a bevy
of public interest lawsuits, amounts to nothing other than a
renegotiation, THROUGH THE COURTS, of the constitution's rights!
With, of course, the aforementioned mixed results.

However, the Constitution is ONLY supposed to be changed by AMENDMENT,
not by a mere contract between the government and a corporation.

A similar thing has occurred where pursuant to something less than a
contract (apparently) an "Affirmation" of Commitments, the USG gives
away ICANN to ICANN, which now claims "independence."  Independence at
the general level can only exist in the private sector.  NO
litigation's been filed yet, but we can certainly expect ICANN to make
the traditional claim that it is private sector, since it would be odd
indeed for an "independent" ICANN to say it is the government.  Thus
beings the renegotiation of ICANN's legal status via piecemeal
litigation, with the traditional mixed results in all likelihood in
the long run.

Does renegotiating ICANN's status via litigation sound good to all?
I don't think it's appropriate, but there are lots of "interesting"
questions raised that will keep lawyers and solicitors busy.  But at
the more important levels that lawyers with their narrow focus on
tightly defined issues sometimes or often don't reach, the whole AoC
is properly seen as void.  It's not a contract since the USG got no
consideration, they gave it away for free as far as I can see, and
even if they got some minimal consideration, by rights an "asset" (to
use private sector terminology for the moment) if it is rightful to
alienate ought to be put up for bids to see if anyone would like to
purchase it.  This would maximize the return to the taxpayers for
their initial investment (of course I don't favor this, but it's a
logical requirement if ICANN is an asset properly able to be sold or
given away).

I cited Lebron v. Amtrak for Justice Scalia's comment that the
government can't credibly "evade its most solemn constitutional
obligations by resorting to the fiction of the corporate form" and the
case stands in part for the idea that the government's statement, in a
statute, that Amtrak is a private corporation in no way predetermined
the court's resolution of the truth of the matter.  If it did, as the
case suggested, the FBI could claim all its activities were "not
searches" in a regulation and thereby evade all judicial review.

For the above reasons, what the USG and ICANN say that is self-serving
is to be dismissed or taken skeptically, but admissions AGAINST
interest are more reliable since they are not readily made.
Independence is one such admission.

Hope that helps


-- 
Paul R Lehto, J.D.
P.O. Box #1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-4026
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