Re: [ga] Re: iCANN's protection

[Thomas Roessler <roessler@does-not-exist.org>]

On 2001-04-17 12:28:48 -0700, Dave Crocker wrote:

> In fact lawyers tend to agree about basic matters of law most of
> the time.  When they disagree is when they are explicitly
> adversaries.  Lawyers are trained to seek whatever lines of
> argument will support their client.  However when they are not in
> the middle of a direct fight, they generally agree on matters of
> legal principals, and legal practise.

While they may actually agree on the most basic legal principles,
there is certainly and regularly disagreement about interesting, or
novel questions, which may indeed be argued in different ways or
directions, and where arguments may have to be balanced in court.

Otherwise, there wouldn't be so many cases which are pursued up
until the highest courts, even when both parties have similar
material means and expertise on their sides, right?

> None of that every guarantees how a particular judge or jury will
> determine a particular case, 

Of course not.

> but discussions like that being pursued by Prof. Froomkin pertain
> to overall patterns of legal practise.  About such matters,
> lawyers tend to agree more than disagree.

ICANN looks like a rather new construction, which seems to be
difficult to classify and treat from a legal point of view.  Thus,
I'd actually be quite surprised if there would be no disagreement.

>>Now, that means that the USG de facto has the control over the
>>DNS name space.  From this fact, Michael concludes that the USG
>>has a duty to apply due process for its handling of this public
>>ressource - instead of creating a "private" de-facto monopoly on
>>the root zone market, which shows precisely the kind of
>>behaviour you'd expect from a monopoly.

> "due process" has many forms.  The IETF embodies one of them, as
> does ICANN.  Of course some folks like to claim otherwise, most
> tending to believe that only the US Government form of due
> process is valid.

Writing from the other side of the Atlantic, I don't belong to the
latter group.  

However, I notice that ICANN has a number of bad habits which can
hardly be considered due process - just think about the extremely
late publication of important reports or drafts, or think about the
frequent changes to the bylaws.

As you wrote yourself various times in connection with the Verisign
agreemnet, ICANN has to operate like a corporation does.  There is
certainly a tension between this requirement and the requirement for
due process as seen from a public policy point of view.  

This is worsened by the fact that ICANN is in fact a monopoly on an
apparently interesting market.  This implies that the natural kind
of control over corporations acting in a competitive environment -
namely, market forces - does not exist with ICANN, and must be
substitued for.  Obviously, ICANN's board can't reliably control
itself by design, since it has an obligation to foster the
corporation's interests, which may at times differ from public
interest.  Thus, external control must be exercised over (actually:
forced onto) the corporation.

Of course, the US constitution's idea of due process is just one.
However, it's one with which a lot of experience has been gathered.
ICANN's kind of process is novel, and can obviously be improved.

>>(Of course, the actual question to be answered is how this
>>monopoly can be fixed or brought under control.

> The latter presumes that it is "out of control".  That's a major
> assumption.

The question is actually not whether or not ICANN is "out of
control", but rather WHO controls the organization, and who should
control it.  You may read my note above as saying that I believe
that ICANN doesn't experience the kind of poublic control I would
consider necessary and appropriate.

> "Fixing" on the other hand, is an on-going process, experienced by all 
> organizations, and required for them.

-- 
Thomas Roessler			    <roessler@does-not-exist.org>
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