[ga] RE: Re[2]: A point of agreement (Re: [ga-roots] response to respo nse to response)

[Jefsey Morfin <jefsey@wanadoo.fr>]

IANAG Roeland, so I miss something in your reasoning. what the US 
constitution has to do with the root?
Jefsey


On 23:10 29/05/01, Roeland Meyer said:
>A few points;
>
>Extracted from below;
>
> > > If a law was passed making alternative roots illegal (Something I'm
> > > not saying I agree with) it would be understood that current root and
> > > the contractors who are trusted with operating it, would receive
> > > exemption from antitrust and other relevant laws.
>
>See my first paragraph descibing the dilemma that ICANN/USG finds themselves
>in.
>
> > > Your statement "AND NO LAW CAN BE PASSED TO PREVENT IT" is not
> > > actually true.  There are no constitutional issues necessarily that
> > > would be prevent it.
>
>The US Constitution makes specific provisions for some activity and
>specifically prohibits others, including the catch-all;
>--
>http://www.law.cornell.edu/statutes.html
>http://www.law.cornell.edu/constitution/constitution.billofrights.html
>http://www.law.cornell.edu/statutes.html
>http://tcnbp.tripod.com/index.htm
>
>Amendment IX
>
>The enumeration in the Constitution, of certain rights, shall not be
>construed to deny or disparage others retained by the people.
>
>Amendment X
>
>The powers not delegated to the United States by the Constitution, nor
>prohibited by it to the states, are reserved to the states respectively, or
>to the people.
>--
>
>Also, considering that a root zone server is simply a publishing mechanism,
>there are, like it as not, First Amendment issues. I leave it to the lawyers
>to work out the details.
>
> From my reading of those texts, making root zone services an exclusive right
>of the USG would require a new Constitutional Amendment. There is a lot of
>reasoning behind this, for which, lawyers are best equiped to argue.
>
>It is also worthy to note that none of the Federal Services contractors
>(USPS, IRS, etc.) have any exclusive rights. Notably, the USPS has to
>compete with FedEx and UPS, among others. Even at the height of Ma Bell
>(AT&T) monopoly, there were no laws passed that stated that one could not,
>or was prohibited from, stringing up your own copper and going into the
>telephone business (Something MCI, in fact, did). Only the monopoly was
>regulated, not the industry.
>
>The clamour for such regulation, from Kent Crispin and company, would make
>the USG bend our Constitution near to the breaking point.
>
>--
>IANAL - I Am Not A Lawyer. Before taking action on anything I say, you are
>encouraged to seek legal advice.
>--
>ROELAND M.J. MEYER
>Managing Director
>Morgan Hill Software Company, Inc.
>TEL: +001 925 373 3954
>FAX: +001 925 373 9781
>http://www.mhsc.com
>mailto: rmeyer@mhsc.com
>
>
>
> > From: NameCritic [mailto:watch-dog@inreach.com]
> > Sent: Tuesday, May 29, 2001 3:11 AM
> >
> > He is correct. No law can be passed against it that would stand up
> > Internationally. The US cannot dictate what other countries do. If an
> > alternate root was located in France or some other country
> > then the law
> > would have no effect whatsoever. I would really like to see
> > people quit
> > treating this as if the US is the only concern here. The Internet is
> > INTERNATIONAL. International Network. Got it now? A US law can only be
> > effective in the US. Alternate roots can be located anywhere.
> > There are even
> > a lot of countries that would welcome it and the last time I
> > checked they
> > don't abide by US Law.
> >
> > What would ICANN do then? Have all the users who surf the
> > alternate roots
> > arrested? I wouldn't put it past them, due to their arrogant
> > attitude that
> > one government contract somehow empowered them to make the
> > rules the world
> > will all now live by. The ICANN BoD needs a reality check.
> > They aren't that
> > big or that powerful.
> >
> > There will always be other root systems get used to it, deal
> > with it, and
> > get over the ego rush ICANN.
> >
> >
> > Chris McElroy aka NameCritic
> >
> > ----- Original Message -----
> > From: "William X. Walsh" <william@userfriendly.com>
> > Sent: Tuesday, May 29, 2001 2:17 AM
> >
> > > Hello Roeland,
> > >
> > > One thing you missed.
> > >
> > > If a law was passed making alternative roots illegal (Something I'm
> > > not saying I agree with) it would be understood that
> > current root and
> > > the contractors who are trusted with operating it, would receive
> > > exemption from antitrust and other relevant laws.
> > >
> > > Your statement "AND NO LAW CAN BE PASSED TO PREVENT IT" is not
> > > actually true.  There are no constitutional issues necessarily that
> > > would be prevent it.
> > >
> > > On Tuesday, May 29, 2001, 1:53:51 AM, Roeland Meyer wrote:
> > >
> > > > The problem Harald, is that the ICANN doesn't have the
> > authority to make
> > > > that stick and it cannot be given such authority, in the
> > US, without
> > > > violating some fundimental civil rights (laws). Neither
> > can the USG
> > accede,
> > > > to ICANN, such power. They are prohibited by the US
> > Constitution. ICANN
> > *is*
> > > > a California corporation and the USG *does* control the
> > root, currently.
> > The
> > > > only way out of that dilemma is for ICANN to start a root
> > registry and
> > > > publish their own inclusive root zone (something that I've been
> > suggesting
> > > > for a while now). But, that makes the ICANN no better
> > than any other
> > > > inclusive root registry. The only difference will be that
> > the USG has
> > > > already given it a healthy startup boost.
> > >
> > > > It *still* does not preclude the appearance of competitive root
> > registries
> > > > AND NO LAW CAN BE PASSED TO PREVENT IT. Regardless of
> > what mr. Crispin
> > would
> > > > like, the US is still not a totalitarian regime. Even were it so,
> > > > jurisdiction outside of the US cannot be compelled to
> > recognise such a
> > law.
> > > > We do not yet, have a world government and are not likely
> > to have one in
> > our
> > > > lifetimes.
> > >
> > > > Given that incontrovertible condition, multiple root zones are
> > inevitable if
> > > > market forces present an attractive opportunity for them
> > to exist. In
> > this
> > > > case, the only strategy that makes sense is for ICANN to
> > present such an
> > > > attractive value-proposition that the market is satisfied
> > with their
> > > > offering and won't support other root zones.
> > >
> > > > In short, it becomes a monopoly. Well, in the US, there's
> > a problem with
> > > > that too. It's called the Sherman Anti-Trust Act, among
> > others. This
> > means
> > > > that there will be at least two more root registries.
> > There's more,
> > history
> > > > has shown that any market will have at least 3-5% of it's
> > members using
> > > > whatever competitor is available, simply to be
> > cantankerous, if noting
> > else.
> > > > What this means is that any monopolist can never gain
> > more than 95% of a
> > > > given market. This may be sufficient for most historical
> > monopolies, but
> > it
> > > > means that multiple roots are a god given certainty. Whom
> > else do you
> > think
> > > > has that last 5% ... frosty the snowman? No sir, it's
> > competitive root
> > > > registries and 5% of 5M names, times $6 bucks a whack, is still a
> > sizable
> > > > chunk of change and Moore's law has dropped operations
> > cost down to
> > almost
> > > > zip ($0).
> > >
> > > > Business drives technology ... always has and always
> > will. It is not the
> > > > place of the technologist to tell the market what it can
> > do. The market
> > will
> > > > flatly reject that. If the technologist doesn't/can't
> > deliver then the
> > > > market will find another technologist that can/will. Kent
> > Crispin's
> > paper is
> > > > nothing more than a technologist's excuse for not getting
> > the job done.
> > If
> > > > the ICANN is stupid enough to accept it as gospel then it
> > is finished.
> > It's
> > > > unenforcible, unimplementable, and just plain dumb. To
> > make matters
> > worse,
> > > > he does not present a single problem that does not already have an
> > > > implemented solution. In short, it's almost pure FUD.
> > >
> > > > Thank you. I'm sorry about going on so long.
> > >
> > > >> From: Harald Tveit Alvestrand [mailto:harald@alvestrand.no]
> > > >> Sent: Monday, May 28, 2001 11:55 PM
> > > >>
> > > >> At 00:40 29.05.2001 -0400, Milton Mueller wrote:
> > > >> >Smart service providers won't offer highly
> > > >> >conflicted names, most consumers won't buy them,
> > > >> >and ISPs won't support them. They will converge, or
> > > >> >die. Domain names have no value otherwise. You
> > > >> >can't play with them, or hang them on your wall.
> > > >>
> > > >> Thanks for making it clear that you think a single root will
> > > >> eventually occur.
> > > >>
> > > >> It is clear that we have agreement even among those who do
> > > >> not want to
> > > >> admit it that there needs to be a way to get to the point
> > > >> where one name
> > > >> has only one resolution in any DNS service.
> > > >>
> > > >> ICANN has proposed one way: strict regulation of entries into
> > > >> a single
> > > >> root, no conflicts allowed.
> > > >> Name.space, ORSC and others have proposed another way: first
> > > >> come first
> > > >> served, talk until tired whenever conflicts occur.
> > > >> New.net has proposed a third way: sell what you want, and
> > > >> hope to get so
> > > >> many customers that the others won't dare challenge you.
> > > >>
> > > >> I personally think that ICANN's way is fairer and less
> > > >> painful than the
> > > >> other current proposals; I may be in a minority on that.
>--
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