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

[David Conrad]

Parminder,

On Aug 26, 2012, at 7:36 AM, parminder <parminder at itforchange.net> wrote:
> On Sunday 26 August 2012 10:48 AM, David Conrad wrote:
>> 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?
> I dont want to dig up all emails and get into a long discussion on you said this, what i meant was this and so on........ 

So, I gather you choose not to back up your assertion.  Useful to know for future discussions.

>> 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.
> Why? Doest US state make the corporate law?

Yes, but corporate law is a tiny subset of the "wishes of the US state".

>>  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?
> How many time can this one example to used to show the purity of the US state...

Until it is demonstrated it is inapplicable, I suspect it will continue to be used.  There are others, e.g., processing requests from countries in which it is illegal (as in criminal felony, decades in jail, millions in fines) for US citizens to do business.

>> 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.
> In theory, the hierarchy between the two above kinds of control over the ICANN is clear. US laws and general US authority will prevail whether they have exercised it in any strong manner till now or not. And this is not acceptable. 

If you say so.  I eagerly await a full proposal of your alternative that describes an operational entity that exists above nation-state law.

> BTW, why dont I get the answer to the main question which started this thread, and is in its subject line. What happens if the US court, having accepted it as a maintainable case, declares .xxx registry agreement to be in contravention of US laws? Does the ICANN system with its chimera of global legitimacy simply unravels that moment? How do you see such a scenario? 

Despite you being seemingly unwilling to answer my simple question, I'll take a stab at this from an operational perspective (since I'm not a lawyer):

If a court were to decide .XXX violated US law (somehow), it could direct ICANN to remove it.  However, ICANN, as the IANA functions operator, can't do the job (at least usefully -- the most ICANN can do unilaterally is remove the Whois entry for XXX, but I doubt many people would care).  ICANN can at most send a request for a de-delegation to DoC for authorization.  Assuming DoC authorizes that request, it would then go to Verisign who would likely remove the entry from the root zone (since DoC authorized it, they'd be silly not to).  The XXX-less zone would then get signed and put onto the distribution master where the root server operators would pull it down and serve it to the world's resolvers.  

I suspect where things might get a bit complicated is in the DoC authorization step. My guess is that DoC would not authorize the request as it would be done outside of documented policies.  This in turn would likely result in the lawsuit being redirected to DoC.  Assuming the USG allowed the suit to proceed and the judgement was against the DoC, DoC could be forced to authorize the request.

It would then run into the other complicated bit -- whether or not the root server operators accept and serve the XXX-less zone.  Opinions differ.

Does ICANN's legitimacy unravel if this were to occur?  Not really, IMHO.  The illusion that some (including yourself, I gather) have ICANN is actually in control of anything other than providing a venue in which consensus policies are derived and implemented might unravel, but that would (again, IMHO) be a good thing.

>> 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!".
> All my political and democratic sensibilities make me feel that your sentence above is self contradictory.

Then you may need to adjust either your sensibilities or your perception.

> You say that Internet has become too important an issue to subject to the democratic criterion !?

Nope. I'm saying pretty much exactly the opposite.  The Internet has become too important to go mucking about with before exposing exactly how and why you're going to be mucking about to the people who are going to be affected by that mucking about.

Regards,
-drc

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