[governance] Big Porn v. Big Web Ruling Could Spell Trouble for ICANN / was Re: new gTLDs

[David Conrad]

Parminder,

On Aug 25, 2012, at 12:49 AM, parminder <parminder at itforchange.net> wrote:
>> On Aug 22, 2012, at 8:03 PM, parminder <parminder at itforchange.net> wrote:
>> I'm surprised anyone would make such a claim. Could you provide a URL?  I'd like to understand the rationale.
> What I said about the apologists for the current ICANN-US relationship was;

Actually, what you said was:

>>> Yes, ICANN has never claimed it is not subject to US law. It will be ridiculous to do so for any responsible organisation based in the US. Problem is, ICANN apologists claim so, especially when caught on the wrong foot in global discussions - like on this list - faced with legitimate criticism of how a global infrastructure can be managed as per legal and executive authority of one country. 

I was specifically asking for a reference to where any "ICANN apologist claim[s] so" so I can understand their rationale. Your statement is rather bald, so presumably you can back it up. I'm asking for a reference.  Can you provide one?

However, to respond to your apparent attempt to redirect the simple question above to something you would prefer to talk about: 

> You tell me that you have never heard of any such claim.

No, I have not heard anyone seriously claim that ICANN was not subject to US law, hence my request.

> Therefore, it is agreed that ICANN can be forced to change its decisions by the US courts, legally exercised executive power etc. Also as all entities subject to any jurisdiction do, ICANN must already be carefully factoring in US law in all its decisions, knowing that in default its decisions can be struck down (this kind of less-than-very-obvious control is of very great significance).

I suspect you credit ICANN's legal team with more strategic thought than others. I suspect ICANN is _far_ more worried about civil suits brought against it than violating corporate law.  However, that's neither here nor there.  

> Now, if all this is true; are we not justified in saying that ICANN largely confirms to the command and wishes of the US state

If you assume that the "wishes of the US state" are codified in corporate law, I suppose so, but this seems to be a bit of a reach to me.  For example, my impression the USG wasn't particularly excited about the creation of .XXX yet ICANN seems to have gone ahead and allowed for its creation, no?

> To the extent that ICANN does take global inputs for its policy development, it is within (relatively narrow) confines or constraints of the degrees of freedom allowed by US law and executive authority. 

Constrained by US law, yes.  Whether that is "relatively narrow" is a matter for debate.  As for abiding by the constraints of executive authority, ICANN, at least in theory, abides by policies created by a bottom-up open process, not by the dictates from the USG executive branch.  Do you have any examples in which ICANN has violated those bottom-up processes in order to meet demands of the USG?

> Why then it not be considered legitimate that the rest of world finds this situation not acceptable, being not democratic etc?

ICANN, as a private, non-governmental entity, had to be incorporated somewhere.  For historical reasons that I'm sure you're quite well aware, incorporating in the US was the obvious choice. Was this undemocratic?  Sure, but most folk at the PTT level knew that OSI was going to replace TCP/IP so they didn't care (I know this from painful personal experience).  If you actually took a vote of Internet users at the time, I suspect the democratic answer would've been "incorporate in the US" (since at the time, the US was the country where most of the Internet existed). Yes, things have changed, but I'm unclear as to how changing where ICANN is incorporated (assuming it is possible) will have any useful effect.

As to it being unacceptable, my impression is that the vast (VAST) majority of folks simply don't care about whether or not ICANN is incorporated in the US (actually, I suspect they've never heard of ICANN).  What I suspect they care about is being able to get access to the content they want (e.g., getting basic Internet connectivity, having that connectivity be affordable and reliable, not being blocked by various government-imposed filters, etc).  Since ICANN by and large doesn't impede this access, I'm guessing ICANN being incorporated in the US falls pretty low on their priority list.  

Personally, I've always found it somewhat depressing that people in forums such as this focus on stuff like what TLDs will be created or who has the power to deny those TLDs when the _real_ "critical Internet resources" are things like fibers and base stations and electricity and environments that allow folks to interconnect their devices and networks together. None of these are in ICANN's purview, but I guess it is a lot easier for folks to throw rocks at ICANN and/or the USG than deal with the policies and infrastructures in their own countries.

> Why do you bring in always, to any proposal for more democratic alternatives, the issue of having to show you the proof that (1) the present system is not working (not being democratic is enough reason, isnt it!) and (2) how an alternative system will be better (something that can never be proved by demonstration). 

A (undoubtedly poor) analogy:

I have a solution to power distribution problems in India. Everyone agrees the current system is broken. My solution hasn't been implemented before, nor has it actually been formally documented or even exposed to peer review, but I assure you it is much better.  Your arguments against replacing the current power distribution system in India with mine just show you are a status quoist.

I figure when you are talking about mucking about with a working albeit imperfect global infrastructure upon which people, nations, and economies are increasingly dependent, you need a bit more than "but the current system is undemocratic!".  But maybe that's just me.

Regards,
-drc

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