Re: [ga] Re: iCANN's protection

[k@widgital.com (Kristy McKee)]

All:

My father was President of the Board of Accountancy for a term.
I certainly do not appreciate Kent's incorrect comments about this very 
serious board.
I consider them slander and will bring them up to this board and others if 
he continues this.

ICANN HAS NOTHING IN COMMON WITH THIS BOARD.

~k

At 04:46 PM 4/17/2001 -0700, Kent Crispin wrote:
>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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