Re: [ga] Re: iCANN's protection

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

Kent and all remaining assembly members,

Kent Crispin wrote:

> On Wed, Apr 18, 2001 at 05:15:27PM +0200, Alexander Svensson wrote:
> > Hello Kent!
> >
> > From memory, I think ICANN was called "a totally new
> > institutional animal" by the Economist, so I agree
> > that it is useful to compare it to various existing
> > institutions and to see what we learn from it:
>
> It's good to think "outside the box" on occasion :-)

  Well it is better to do so more often than not...

>
>
> > Kent Crispin wrote on 17.04.01, 16:46:37:
> > > I'm sorry, but I think your analysis of ICANN-as-monopoly is *very* far
> > > from describing ICANN's real behavior or its real nature or even it's
> > > possible nature.  I think a far better model for ICANN would be a
> > > professional society, or a industry standards body.  I'm thinking of
> > > organizations like the American Bar Association, or the American Medical
> > > Association, or the American Institute of Certified Public Accountants,
> > > or the Underwriters Laboratories (Sorry these are all american
> > > institutions -- just the ones I'm familiar with).
> > >
> > > These kind of
> > > organizations have quasi regulatory powers; they are frequently
> > > recognized by law; they are monopolies.  However, NONE of them have an
> > > "at-large membership" that makes them "accountable" to the public at
> > > large.  Instead, they rely on the fact that the entities involved
> > > compete against each other, but have a common interest in standards.
> >
> > Hmmm. It is a bit difficult to use U.S. examples,
>
> Please forgive my provincialism.  I don't know similar examples
> elsewhere, though I'm sure they must exist.
>
> > because
> > frankly I don't know all that much about e.g. the American
> > Institute of Certified Public Accountants (AICPA), but from what
> > I gather on the web, Certified Public Accountants enjoy a
> > government-protected monopoly of providing certain accounting
> > jobs.
>
> Well, they are certified; they get licenses, in the same way that a
> doctor or lawyer is certified and gets a license.  While you could call
> that kind of certification/licensing  "a government-protected
> monopoly", it's a fairly weak monopoly.  There is a fairly stiff test
> you have to take to be certified; anyone can stand for the test.  I'm
> not at all sure about the processes in detail.  At a very generic
> level, the other examples I mentioned (the american medical
> association, the american bar association) share this characteristic.
> The government really isn't the best agent to define the certification
> requirements.
>
> It is certainly true that organizations like this have a pervasive
> effect on the ecomomics of their respective professions.  The american
> medical association has been criticized for artificially restricting
> the supply of doctors by setting the standards for medical schools too
> high.  It is also true that organizations like this can be intertwined
> with the government in interesting ways -- it was news recently when
> the Bush administration let it be known that the American Bar
> Association would no longer be consulted on candidates for federal
> judges.
>
> The basic point is that the government grants to these trade
> organizations certain "powers" that look much like regulation.

  Yes but these organizations and their respective regulatory
"Powers" have plenty of public oversight in most if not all
instances.  ICANN however doesn't to date.

>
>
> A similar model is one provided by standards bodies.  Imagine that
> Cisco, Juniper Networks, and several other Internet infrastructure
> companies got together and produced a bunch of proprietary standards
> that they cross-licensed to each other.  Anti-trust authorities would
> be very suspicious.  But if Cisco et al participate in the IETF, where
> the standards are open, then it is cool.

  Yes and this is a problem as you know. For instance with security
protocols and now more recently with non-english Domain names
protocols.

>
>
> > If AICPA decides do drop their professional standards
> > yet at the same time doesn't want non-CPAs to do certain jobs,
> > those others would seek protection against AICPA overstepping
> > their role from (a) the U.S. legislator, (b) the U.S. courts.
>
> Through anti-competition authorities.
>
> > (I would assume that this also roughly applies to the other
> > professional organizations you mention.)
> >
> > Problem regarding ICANN: We don't have a world legislator
> > or a world court,
>
> Fortunately, none is needed.  The rational for government oversight of
> trade organizations is concern about competition; trade organizations
> are basically controlled through anti-trust authorities.  And ICANN
> falls under the anti-trust jurisdiction of every country in the world in
> which it has a significant impact on competition.  That is, for all
> practical purposes, ICANN is under the thumb of every anti-trust
> department in the world.

  This is not precisely true, Kent.  ICANN is under some oversight by
USG authorities to some degree, but not all other Govt's anti-trust
departments as ICANN is a California corp, and a US Corp., with the
standard protections in this area...

> The idea that there is no oversight over
> ICANN, that ICANN is "unaccountable", is a pernicious myth.  The US
> dept of justice, the EC's DG-4, and other anti-trust agencies all
> provide oversight.

  Yes they do, but that oversight has been sorely lacking, as many have
seen of late more clearly

>
>
> > and we probably both agree that it would not
> > be a good idea to leave the decisions on the global Net to a
> > single national legislator/court. Some may argue that the
> > closest we get to a world legislator is an assembly of all
> > legislators in the world, but I have seen little support
> > for the idea that the GAC becomes a supervisory board...
> > So how else do we keep such a public check? E.g. by electing
> > representatives to the Board.
>
> Election of representatives to   the board is not necessary for oversight,
> and there are tremendous practical difficulties with the "ICANN as
> government" model.

  Well it would seem that many stakeholders would not agree with this
statement, as it would also seem DOC and the US Senate doesn't either.

>
>
> Also, in terms of fundamental legal and control relationships, ICANN is
> much closer to a trade organization than it is to any kind of
> government.  *All* it's contractual committments are with the "trade",
> not the public at large.

  If this is true, which it isn't, than ICANN has broken its
agreements/contracts
with the DOC in the MoU and the White Paper.  Now it already has disregarded
the WHite Paper and the MoU on quite a number of occasions, but not for
the reasons you state here.

>  Moreover, the sheer mechanics of contracts and
> negotiation give a great deal of direct and immediate influence to the
> contracting parties -- contracts, even contracts with governments, are
> never negotiated publically.

  Never say Never.  The public has in many instances had the opportunity
to take part in the negotiation points of some Govt contracts in the
past.

>
>
> More important, though, is that it is clear that the "elected
> representative" model simply won't work.

  Of course this is not rational or even reasonable.  So I won't comment
on this further.

> This was demonstrated with
> crystal clarity in the at-large elections -- they demonstrated without
> question that capture on that scale was possible, and they also
> demonstrated without question that the elected board positions became
> purely political.  Both of these problems are death for any idea
> ofICANN as technical coordinating body.
>
> > I assume the common interest you would refer to when talking
> > about ICANN is a stable Internet. What about the other White
> > Paper principles: competition; private, bottom-up coordination;
> > representation? What do we do if they are in conflict, and
> > who makes the choice?
>
> The ICANN board.  If they make the wrong decision, DOJ and DG-4 haul
> them into court.

  Only if there is a public complaint filed....

>
>
> > > The decisions made by these bodies most certainly have an impact on the
> > > general public, but the general public doesn't have direct
> > > representation.
> >
> > Because there are other mechanisms in place and people are
> > reasonably happy with them. This does not seem to apply here.
>
> No, I would argue that this applies here, as well.  The mechanisms are
> certainly there.  And indeed there are unhappy people, but there are
> people unhappy with trade associations, as well, and on the whole, in
> either case, most people simply don't care.

  But some of us do care Kent!

>
>
> Moreover, ICANN is still in its formative stages.  It is causing lots
> of change, and there are fundamental policy choices that do have to be
> made -- this is an inevitable consequence of birth; that is why the USG
> keeps its hand in -- consider the analogy of the *beginning* of the
> Board of Accountancy:  there would have been unavoidable serious policy
> decisions, and they would impact the practices of current accountants.
> There would be lots of controversy, lots of angry people.  But after
> the fundamental policy decisions are made, things change dramatically.
> The Board of Accountancy is utterly boring to most people nowadays.
>
> --
> Kent Crispin                               "Be good, and you will be
> kent@songbird.com                           lonesome." -- Mark Twain
> --
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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
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