Re: [ga-roots] Understanding legal precedence

[Simon Higgs <simon@higgs.com>]

At 02:35 PM 5/7/01 +1000, you wrote:
>Non-member submission from ["Milton Mueller" <mueller@syr.edu>]
>
>Harald:
>An incorrect statement.
>
>The judge did not make a decision. You cannot lose a
>case when there is no decision. Full stop.
>
>The ironic thing about the controversy is that Simon
>gives a lot of weight to Postel's decisions, as if
>Postel really had legal authority over the DNS root
>at that time. But Postel's lawyer later denied that he
>had any authority over the root in the Name.Space
>case, and kicked the ball back to the National Science
>Foundation.

Contractually, Postel had "discretionary" authority. This meant he was 
given a certain latitude to play in before his fingers started to burn. He 
was not given absolute authority. He did add ccTLDs to the root under 
RFC1174 (later RFC1591) which was specifically addressed in paragraph C of 
the NSF/NSI co-op agreement:

http://namespace.org/law/answers/letters/NSF-NSI08111997.jpg

While he could have used this "discretionary" authority to add new gTLDs, 
the previous controversy over the introduction of .COM/.NET/.ORG made him 
look to the internet community for consensus on the matter. He relinquished 
this authority back to NSF in a letter as a direct result of the Name.Space 
case if I recall correctly. I can't find the letter in question, but it 
should be dated prior to April 4 1997 and allows the following letter to be 
written claiming that he has no authority:

http://namespace.org/law/answers/letters/IANA-NSI0404.jpg

That letter is in response to this letter which seeks to clarify the chain 
of command for the root (and contains the reasonable assumption that IANA 
has authority over NSI to change the root zone):
http://namespace.org/law/answers/letters/NSI-IANA0327199701.jpg
http://namespace.org/law/answers/letters/NSI-IANA0327199702.jpg

>The most accurate thing one can say about that period
>(96-97) is that authority over the root was unclear,
>and contested by several parties. A local judge's
>musings in an initial legal skirmish have no bearing
>on what would happen now. The only serious legal
>decision on a related issue is the disposal of the Name.space case.
>
>Name.space v NSI and NSF did not really pose the same
>issue Simon is raising. The results of it were
>profoundly affected by the fact that NSI was a plain
>vanilla "instrumentality" of the US federal government.
>If ICANN were also held to be such an instrumentality,
>it might save it from Higgsian claims, but it
>would jump from that fire into the frying pan of
>Froomkinesque challenges to its basic legality.

ICANN is safe from Higgsian claims? Ha! >;^)


Best Regards,

Simon Higgs

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