[governance] ICANN/USG Affirmation of Commitments

[Eric Dierker]

I am forced by Pauls' long writings to take pause and read and think.  It is always my goal in writing to not focus on obtaining agreement but in obtaining the motivation of others to question and investigate and think. We are, none of us, so wise and knowing that we are not strengthened by contributions of colleagues, if we choose to learn rather than argue for winning sake.
 
Thank you Paul

--- On Fri, 10/9/09, Thomas Lowenhaupt <toml at communisphere.com> wrote:


From: Thomas Lowenhaupt <toml at communisphere.com>
Subject: [governance] ICANN/USG Affirmation of Commitments
To: governance at lists.cpsr.org, "Paul Lehto" <lehto.paul at gmail.com>
Date: Friday, October 9, 2009, 6:15 PM


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.



----- Original Message ----- 
From: "Paul Lehto" <lehto.paul at gmail.com>
To: "McTim" <dogwallah at gmail.com>
Cc: <governance at lists.cpsr.org>; "Roland Perry"
<roland at internetpolicyagency.com>
Sent: Thursday, October 08, 2009 10:17 AM
Subject: Re: [governance] ICANN/USG Affirmation of Commitments


> The basic idea is that one can not legitimately regulate a person,
> even if the regulation is described as "administration of technical
> resources [of the Internet]" without also engaging in the process of
> respecting the users enough to solicit, and obtain, their consent.  My
> metaphor, too strong an image for some specific cases, but still apt
> nevertheless, is that if one hasn't achieved legitimacy via the
> consent of the governed (or to-be-governed) then one has no right to
> rule - no right to "squash bugs."  In other words, humans are not mere
> bugs that can be squashed or affected without checking in with them
> and without legitimacy of the authority.
>
> Nobody except valid legitimate governmental authorities directly or
> indirectly elected or appointed by the public have the right to go
> around affecting, diminishing or destroying user freedom on the
> internet so long as that freedom is not hurting others.
>
> To the above it's been said "but wait, we don't have global ELECTION
> processes in place, so its not so easy to obtain this authority or
> legitimacy."
>
> To which I say:  Your authority therefore has zero legitimacy.  Law is
> compulsion and force -- commands with the penalty of a civil monetary
> liability or criminal sanction for their violation.  CONTRACT LAW IS
> "PRIVATE LAW."  If one cannot have a domain or presence on the
> internet without a contract then the contract is not a voluntary act
> its required.  Therefore, outfits like ICANN are set up as
> illegitimate private regulators, even if the scope of their regulation
> is presently restricted.
>
> 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.
>
> Thus, what ICANN or the DOC says about the case is not controlling for
> any independent thinker or independent legal analysis, except when
> ICANN or DOC make admissions against their own interest, since
> admissions against one's own interest have a high degree of
> reliability.
>
> McTim, it's probably not fruitful to suggest your work in repeating
> things to me is "tedious" as if I lack the intelligence to understand
> or the ability to read.   What we are discussing is governance,
> something that I have a strong interest in, not to mention a law
> degree, and published articles on democracy with more on the way.  For
> better or worse, in any justiciable case the legal system gets the
> last word, including but not limited to the last word on disputes in
> any expert terrain like computer science.
>
> If there's some minutiae of computer science or "custom" of the
> internet that I'm ignoring or seeming not to grasp, it's because those
> details, each as a class, have no legal relevance to any issue of
> fundamental importance to governance.
>
> Paul Lehto, Juris Doctor
>
> On 10/7/09, McTim <dogwallah at gmail.com> wrote:
>> This is becoming tedious, but I'll make one last attempt to explain it to
>> you:
>>
>> On Wed, Oct 7, 2009 at 7:52 PM, Paul Lehto <lehto.paul at gmail.com> wrote:
>>>
>> <yada yada snipped>
>>>
>>> If asking the persons whose rights and lives you wish to modify on the
>>> internet is TOO MUCH TROUBLE
>>
>> gov'ts modify the rights and lives of Internet users, ICANN has a very
>> narrow the very narrow role of administering technical resources via
>> its IANA function.
>>
>>  for practical reasons, what right does
>>> anyone have to go around squashing human beings like bugs
>>
>> now that's just silly.
>>
>> <more snippage>
>>>
>>> A legislature charged with doing the job of making laws, for example,
>>> can't just assign that lawmaking task to a private body and refuse to
>>> oversee it or to provide standards and further disclaim its
>>> responsibilities as charged by law or the constitution.   Yet that is
>>> perilously close to, and appears to be exactly what, the DOC
>>> accomplished an the Affirmations agreement.
>>
>> Perhaps you don't understand the history behind this move.  During the
>> Clinton Administration, the USG basically said "who wants this job,
>> it's not really appropriate for us to do anymore".  To make a long
>> (but interesting) story short, ICANN was created and took the "job".
>> The goal all along was for it to be an independent body.  You are a
>> dozen years too late to complain about it now, that ship has long
>> since sailed.
>>
>> --
>> Cheers,
>>
>> McTim
>> "A name indicates what we seek. An address indicates where it is. A
>> route indicates how we get there."  Jon Postel
>>
>
>
> -- 
> Paul R Lehto, J.D.
> P.O. Box #1
> Ishpeming, MI  49849
> lehto.paul at gmail.com
> 906-204-4026
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