Re: [ga] The Administrative Procedures Act

[Jeff Williams <jwkckid1@ix.netcom.com>]

Danny and all remaining assembly members,

  I would seem appropriate that FIRST the DNSO must reform itself
before suggesting that ICANN reform itself, specifically the ICANN BoD.
As such, I can completely understand the ICANN BoD for to an extent
ignoring the DNSO GA.

  The DNSO GA an it's associated ML needs to following reforms
BEFORE andy credence can be considered serious for the ICANN
BoD or the APA consideration:

1.) That any and all interested parties be able to participate in
     any and all WG's that the DNSO may form or otherwise
     utilize.

2.) That any and all interested parties or potential participants
      have unfettered access to become voting members of the
      DNSO GA.

3.) That any and all interested parties or potential participants
     be able to participate on the DNSO GA Mailing List.




babybows.com wrote:

> The recent letter from US Senator Conrad Burns to Mr. David Walker,
> Comptroller General of the GAO, notably referenced the article "Wrong Turn
> in Cyberspace: Using ICANN to Route Around the APA and the Constitution" by
> Professor A. Michael Froomkin.  Having taken the time to read this
> well-considered document in its entirety, I find myself drawn to the
> following paragraphs that seem to sum up the crux of the ICANN problem:
>
> * If ICANN is engaged in policymaking, and if DoC is reviewing these
> decisions and retaining the authority to countermand them, then DoC's
> adoption of or approval of ICANN's regulatory and policy decisions are
> subject to the APA. One could argue as to whether DoC's approval is an
> informal adjudication under the APA,{45} or whether due to its overwhelming
> influence over ICANN and due to its adopting ICANN's rules, DoC is engaged
> in rulemaking without proper notice and comment. In either case, however,
> the APA has been violated.
> * If, on the other hand, ICANN is engaged in policymaking and DoC does not
> retain the power to countermand ICANN's decisions, then DoC has delegated
> rulemaking and policymaking power to ICANN. This probably violates the APA,
> since it was done without proper rulemaking; regardless of the applicability
> of the APA, it violates the Due Process Clause and the nondelegation
> doctrine of the U.S. Constitution, as well as basic public policy norms
> designed to hold agencies and officials accountable for their use of public
> power. Since ICANN's board and staff operate largely in secret, it is
> difficult for outsiders to know how much influence DoC has over ICANN's [*pg
> 34] decisionmaking. As a result, the statutory and constitutional arguments
> in this Article are presented in the alternative. The two arguments are very
> closely related, however, in that both rely on legal doctrines designed to
> promote accountability and prevent the arbitrary exercise of government
> power.
> The APA (the Administrative Procedures Act) is essentially the codification
> of the principle of "fair play"; at issue in the Senator's letter is whether
> "ICANN is the appropriate body to manage the DNS; and
> whether ICANN has performed well". It seems clear to me that Washington has
> received a very loud message from the public that "fairness" has been
> woefully absent at ICANN, and that as such perhaps another institution needs
> to be charged with the policy aspects of the Internet.
> I believe that we have the means to address this problem.  The ICANN Board
> has recently passed the following resolutions:
>    [Resolution 01.28] The Board asks the Names Council and other sources
>    to separate their proposals into those that improve operations of the
>    DNSO as it is constituted today and those which may result in changes
>    in the structure of the DNSO and/or major changes in its functioning.
>
>    [Resolution 01.29] The Board encourages input related to changes that
>    improve operations of the DNSO as it is constituted today no later
>    than April 16, 2001. Further Board action on the basis of that input
>    will be scheduled at the end of that period."
>
> In light of these resolutions, it may be prudent for members of the DNSO to
> recommend to the ICANN Board that it agree to abide by the language of the
> APA as a first step toward improving operations of the DNSO, and as a first
> step in restoring public confidence.  The language of the APA clearly
> addresses the need for due process, for ample time for public comment, and
> speaks to consensus-based decision-making mechanisms as well.
>
> If Washington can be convinced that the Board is taking action to properly
> manage its affairs, then the Senator's request to the Department of Commerce
> might well be withdrawn:  "In the meantime, I urge you to refrain from
> taking any major steps to further empower or delegate authority to ICANN."
> In that the Senator's formal request can effectively serve to inhibit the
> rapid DoC approval of the new registry agreements, the ICANN Board needs to
> be able to take immediate action to fight to safeguard the interests of its
> stakeholders.    A resolution from the DNSO to adopt the language of the APA
> might well be the one single action needed to reassure oversight committees
> that ICANN can indeed correct its deficiencies, and that the DNSO is the one
> body best equipped to formulate Internet domain name policy recommendations.
>
> We can come together as a group and adopt the language of the APA.  It is
> workable even in the unique bottoms-up consensus-driven world of the DNSO
> (an application of the APA to the working group environment may be noted in
> the following document:
> http://www.dnso.org/wgroups/wg-review/Arc02/msg01952.html ).     The Board
> has asked for our help to improve operations.   It would be nice to hear
> members of the General Assembly offering up some substantive
> recommendations.
>
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Regards,

--
Jeffrey A. Williams
Spokesman for INEGroup - (Over 118k members strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number:  972-447-1800 x1894 or 214-244-4827
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208


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