Re: [ga] Re: iCANN's protection

[Kent Crispin <kent@songbird.com>]

On Mon, Apr 16, 2001 at 05:31:25PM -0400, Michael Froomkin - U.Miami School of Law wrote:
> [massively edited]
> 
> On Mon, 16 Apr 2001, Sandy Harris wrote:
> 
> > But calling ICANN and DNSO "the USG's Representatives" is at best
> > disinginuous.
>  
> You're half right.  In law ICANN is the USG's agent.  Or agency.
> http://personal.law.miami.edu/~froomkin/articles/icann-main.htm 
> for details
> 
> > The USG does not control all TLDs. Even if we accept your flawed claim that
> > the USG controls ICANN, controlling the root and therefore the /allocation/
> > of TLDs is a far different thing from "controlling all TLDs".
> 
> Again, half right.  Whether or not USG controls ICANN, it clearly controls
> the root and thus the allocation of TLDs.  Again, see paper cited above.

The above paper that Froomkin cites at every opportunity has to be
considered in light of several things:

1) While extremely erudite, the paper is fundamentally just a legal
*theory*, justified by obscure and abstruse legal research.  Other
lawyers, experienced in the area, do not share Froomkins view -- in
particular, the GAO study does not support Froomkins conclusions.  James
Boyle, in his introduction to that issue of the Duke Law Journal, in
general speaks very favorably about Froomkin's theories, but makes it
very clear that they are theories, with such phrases as "Whatever one
thinks of the descriptive accuracy of Professor Froomkin's statement of
the nondelegation doctrine..." and "Is all of this a stretch, however?
Is Froomkin describing the current law on delegation, or is this a plea
for the courts to return to the world before the New Deal in order to
deal with the world after the Internet?"  
(<http://www.law.duke.edu/shell/cite.pl?50+Duke+L.+J.+5>)

2) The paper deliberately and explicitly ignores the single most
distinctive issue concerning the root zone, and hence ICANN's
"authority" -- the fact that no law can compel use of a particular root
zone, and that control of the root zone is at best fragile and
problematic. 

3) The Duke Law Journal, like most academic law journals, is actually
edited by law students, with faculty advisors.  Consequently, while you
can be fairly confident that the facts that Froomkin states will be
checked, the students are not likely to have the experience to evaluate 
Froomkins paper in terms of contrary legal theories.

4) All this would perhaps not matter if Froomkin were an objective 
observer, but he is not.

-- 
Kent Crispin                               "Be good, and you will be
kent@songbird.com                           lonesome." -- Mark Twain
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