[ga] ICANN as government

[Kent Crispin <kent@songbird.com>]

On Sat, Jul 10, 1999 at 01:14:39PM -0400, Jon Zittrain wrote:
> 
> I don't for a minute believe that the rule of law, and process, aren't 
> important.  I'd hate to suggest anything of the sort.  The principles of 
> the rule of law, and of due process, are quite distinct from the rule of 
> the market, and are among the bases of the White Paper.  ICANN's by-laws 
> are its consitution, and shouldn't be amended lightly.

ICANN is a corporation, it is not a government.  It has, or will
have, contractual relationships with other corporations and
organizations.  Corporations are bound by the law, like all other
persons, real or fictitious. 

There are other international corporations that exert significant
control over other entities through contracts; we don't speak of
their bylaws as a "constitution".

One might speak of "the consent of the governed" in this context. 
Who would the governed be? In fact, the entities actually in
"governance" thrall to ICANN are the corporations and organizations
it has contracts with.  Registries, registrars, and so on, are the
"governed", just as the Pizza Hut franchisees are "governed" by
Tricon Global Restaurants, Inc. 

> But the mere fact 
> of amending them isn't itself enough to say there's no rule of law, any 
> more than Congress passing a law that amends a prior law, which they do all 
> the time.  The only difference is that ICANN doesn't (yet?) have the 
> political legitimacy, either structurally or in fact, that Congress 
> does.

*No* entity in ICANN 's position could *ever* have that kind of
legitimacy, and it is a grave, grave error to think it is possible. 
What gives Congress legitimacy is the participation of a large
percentage of the total population in the election process.  That
level of participation will never happen with ICANN, because the
things it has sway over are too esoteric to matter to the vast
majority of netizens.  Therefore, the ones who participate will
inevitably be special interests, and the only real check on this
process remains governments -- in practicality, through anti-trust 
laws. 

Every individual has a limited supply of free political energy: what
shall I do today -- save the rain forests, or fight the NSI monopoly?
There are thousands of legitimate causes clamoring for that political
energy, but none of them has the kind of political legitimacy that
Congress does, the kind of political legitimacy that allows Congress
to pass laws that can put a person to death, or put a corporation out
of business. 

> ICANN's accountability at the moment comes from the ICANN-DoC 
> agreement whereby DoC can pull the plug if ICANN were to go off the deep 
> end.

Ultimately, ICANN's accountability will *always* come from
government. 

-- 
Kent Crispin                               "Do good, and you'll be
kent@songbird.com                           lonesome." -- Mark Twain