Re: [ga] Re: iCANN's protection

["JandL" <jandl@jandl.com>]

> 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.  

Wrong.  It is acting as if it were, in fact, a monopoly which desires 
to control an entire industry based on its own arbitrary standards 
and does not allow all industry members to participate.

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 are all trade associations whose memberships require that 
they be involved in the industry as a whole.  The associations, 
themselves, do not "certify" the accountants, attorneys or 
manufacturers.  They do determine some best practices and 
technical/professional standards, but do not require that members 
meet them all.  They are, instead, guidelines to which members 
strive.  The UL is different in that it "rates" and "approves" products 
to carry their seal of approval.

ICANN, OTOH, acts like a governance body that imposes its own 
"law" in the form of discriminating against those who will not 
contract with them to adopt their arbitrary policies and refuses to 
include those who would qualify under membership rules in a trade 
association of the type you mentioned above.  As a matter of fact, 
the very entities who should be "members" are not allowed a voice 
at all.

In actuality, ICANN is a closed organization open only to backers.  
They have no membership among interested relevant parties except 
for a few select interests.  The majority of interested parties may 
comment, but not participate in any material sense.

These kind
> of organizations have quasi regulatory powers; they are frequently
> recognized by law; they are monopolies. 

Actually, they do not.  The ABA lobbies heavily, but does not make 
law or rules for the public to follow.  Neither does the AMA.  The do 
some self regulation and also lobby heavily for legislation.  They do 
not force the public to conform to their policies or contracts.  They 
cannot supercede any law of any jurisdiction with any of their 
decisions and do not have any authority, implied or otherwise, on 
individuals in the public sector.  Are they influential?  Oh my yes, as 
a powerful lobby.  Can they make policy to govern the public and 
business directly?  No.  

Does ICANN absolutely - via UDRP, registry/registrar contracts...

 However, NONE of them have an
> "at-large membership" that makes them "accountable" to the public at
> large. 

Why would they.  They are trade/professional associations. 

Neither does ICANN.  It never really did, as referenced in the 
bylaws.  It has never been accountable to the public, or even its 
own peers.  It has provided a forum for public comment in order to 
pay lip service to it, but pays little or no attention to those who 
speak up if those spokespersons are in opposition to the party line.  
As one congressperson put it, "They answer to no one but almighty 
God."  Another wondered if they even answer to him. 

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. 
> 

Of course not.  Why would a non-attorney have input into the ABA 
or a non-medical doctor have input into the AMA?  However, should 
a TLD holder or registry have input into the technical standards for 
the way TLDs are operated?  Root operators for the way roots are 
handled?  Should they be represented or dictated to by fiat?  If you 
were an attorney, would you expect to become a member of the 
ABA if you so chose?  Would you wish to have the ABA dictate 
where you could practice and what type of practice you could have?

ICANN has more than an impact on the public.  Its policies directly 
attempt to govern the internet used by the public and determines 
what the public will or will not be allowed to use, purchase, interact 
with or participate in any way.  It governs outside of any legally 
recognized legislative jurisdiction and without legal authority as 
opposed to a trade association which deals with participants in a 
limited spectrum and whose polices affect only its members.  ICANN 
has the ability to control the world's internet if it is allowed to run 
roughshod on its peers in the industry - TLD holders and root 
managers - as well as the public.  It has the power and is using it 
to destroy individuals, businesses and organizations while disallowing 
those it injures from having any meaningful direct participation.

It is, in fact, an organization that answers to no one, avoids the 
APA by design (Representative Pickering) and is backed by a very 
select group of special interests.

It needs reform, badly.

Mind you, I am not saying that an organization could not be an 
asset to the Internet in determining technical standards with input 
from relevant participants, but it should not be allowed to exclude 
any relevant participants in the industry or the public which it is 
supposed to serve.  It should, instead be controlled by a wide 
representation of all relevant participants.  It should not have any 
power to supercede any national or local laws in any nation.  It 
should have no control over private business models and should not 
interfere with private business, according to its MOU.

Leah



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