Re: [ga] Re: iCANN's protection

[Kent Crispin <kent@songbird.com>]

On Tue, Apr 17, 2001 at 07:39:12PM +0200, Thomas Roessler wrote:
> 
> "Legal fact" is a highly interesting notion by itself...  I'd yet
> have to see the legal argument which is solely based on "legal
> fact".

Indeed.

In "fact", it is my understanding that the term "fact" has meanings in a
legal context that are not the common meaning.  But I wasn't using
"fact" in a legal sense -- just the conventional one.  That is, a legal
fact is, for example, the existence and content of a particular
decision.  Froomkin cites *many* such facts, and I do believe that his
statements about such things are highly accurate.  But these 
unassailable "facts" are only part of his paper; the balance contains a 
great deal of opinion.

> So lets rather say that he is putting forth legal arguments,
> which aren't shared by all of his colleagues

Fair enough.  I don't see that characterization as at all a
contradiction of what I said. 

> (which is not a
> miracle, of course, since folks in that profession hardly agree on
> anything ;-).
> 
> > I deduce that from the emotional tone of some of his writings.
> > eg:
> 
> [Icannwatch polemic against MR omitted.]
> 
> > You probably agree with Froomkins writings, above, and probably
> > find them witty.  But I don't see how either of his ICANNWatch
> > articles from which the above quotes came could be reasonably
> > construed as anything but gratuitious personal attacks directed
> > at Mike Roberts.  But perhaps I'm missing something? Perhaps you
> > could explain to me how these articles are actually objective
> > attempts to deal with serious issues?
> 
> Don't you think that one and the same person can be polemic and
> objective about the same topic (or related topics), when dealing
> with them at different opportunities?

[Note: the following topic is 

In special cases, perhaps yes.  But in general, no, I don't.  I think
that strongly expressed polemics on a subject are actually a fairly
reliable indication of underlying bias.  Not all the time, of course, 
but generally, yes.

There are exceptions -- some people get carried away with their own
rhetoric, and say things that they don't really mean; sometimes people
parrot other rhetoric that they don't fully understand; sometimes 
people just have a bad day.  But I don't think any of these apply to 
Froomkin.

It really begs the question: Why? What is the point of Froomkin's
polemic against MR? What is the intended purpose? What did he hope to
accomplish?  I honestly don't know the answer, and I can't hazard a 
guess.

But 

>  Don't you think that one
> person can put up a polemic opinion piece for political debate on a
> web site, and write a high-quality research paper for an academic
> journal on a related topic?

I think it most likely that they would write a high-quality biased
research paper.  :-)

> Michael doing something like that is not so much different from Dave
> Crocker writing this:
> 
> | ps.  For all your preference in ad hominems, Chris, I notice the you
> | ignored my observation that my position on where to draw the
> | membership line is not consistent with what you would expect to be
> | my client's preference.  Oops.

Perhaps.  I don't see the connection.  In any case, on to much more 
interesting stuff:

> Anyway, let's come to your note 2) in
> <20010416212024.G25935@songbird.com>:
> 
> > 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.
> 
> You are basically claiming that Michael's arguments would only work
> if there was a legal or factual DUTY to use the usual root servers.

I believe my point is actually quite different.  

> Of course, such a duty does not exist.  And, of course, ICANN (or,
> more precisely, the USG) is not the only player on the "root zone
> market" - as we all know there are these folks who are running root
> servers of their own.
> 
> HOWEVER, the alternative roots (no flames please, I'm not interested
> in the "politically correct" names for these) have an extremely
> small customer base, and can basically be ignored for any practical
> purposes.

Yes, they are totally irrelevant to my point, and I was not even 
thinking about them.

> Now, that means that the USG de facto has the control
> over the DNS name space.

That is far too simplistic, and that is in fact precisely the
interesting question that Froomkin mentioned briefly, and then
studiously ignored.  The USG has *asserted* that control, but that
control is far, far more problematic and tentative than it appears.  The
"alternate root" proponents are, as I said, irrelevant.  But the root
server operators are relevant; the default BIND root.cache is relevant;
the DNS protocol (and hence the engineering community) is relevant; the
other governments in the world are relevant.  These are all entities or
factors that could seriously impact the root service (*).  While it is
indeed true that the USG has a great deal of say in these matters, it is
also true that the root zone is a fairly delicate thing, and the USG has
just as much potential to screw things up as anyone else.  At least some
people in the USG realize this. 

To put things another way, Froomkins invocation of the "non-delegation"
doctrine depends on the assumption that something was delegated.  But 
there are many who believe that the USG doesn't have anything to 
delegate; that this is all just a shell game with the USG asserting 
control over something that actually exists totally out in the private 
sector.  Nobody is quite willing to take on the USG over this matter, 
and as long as the USG doesn't do anything really stupid, nobody will.  

This constraint of "not doing anything really stupid" seriously
undercuts the simple statement that the "USG has defacto control". 

> From this fact,

s/fact/hypothesis/

> Michael concludes that the
> USG has a duty to apply due process for its handling of this public
> ressource

This is only relevant if you assume that the USG has control of the 
public resource.  The USG loves for people to believe that, of course. 

> - instead of creating a "private" de-facto monopoly on the
> root zone market, which shows precisely the kind of behaviour you'd
> expect from a monopoly.
> 
> 
> (Of course, the actual question to be answered is how this monopoly
> can be fixed or brought under control.  Would competition help?  Or
> couldn't it persist on that market?  What kind of control mechanisms
> should be established so the single player in that market is forced
> to take into account public interest?)

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. 
The decisions made by these bodies most certainly have an impact on the
general public, but the general public doesn't have direct
representation. 

================================================================

(*) What effect will deployment of DNSSEC have on management of the root
zone? This is a very interesting question, and the acquisition of NSI 
by Verisign takes on a new light from that perspective.

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