Re: ICANN or Governments? (was Re: [ga] WLS Suggestion

[Jeff Williams <jwkckid1@ix.netcom.com>]

Peter and all assembly members,

Peter Dengate Thrush wrote:

> This is such a sad posting. It appears that Kent has misunderstood the whole
> reason for ICANN, and its potential.

  But how could this be?  Kent now works for ICANN!

>
> ----- Original Message -----
> From: <kent@songbird.com>
> To: <ga@dnso.org>
> Sent: Sunday, August 25, 2002 3:47 AM
> Subject: Re: [ga] WLS Suggestion
> > >
> > > I think that the failed experiment that is ICANN illustrates that a
> > > private body should not be in the role of regulating monopolies.
> >
> > To the extent that people have tried to force ICANN into a quasi
> > governmental role of a regulator, with all the trappings of elections
> > and so on, it has been a failed experiment.  But if you operate from the
> > premise that ICANN has *never* been in the position of regulator, then
> > it has done quite well.
> >
>
> This is such a confusion that it makes one whether time will be productively
> spent in trying to help.

  Good point, as is Kents here as well.  Indeed ICANN has failed
as an *Experiment* on both sides of this argument...

>
>
> 1. There need be nothing quasi governmental about a regulator. A regulator
> needs only to have the power to regulate. The source of that power is
> usually, in our economies, a government, but that's a coincidence about
> where power resides.

  Good point here and one that has been made many times before some
3 years ago now...

>
>
> 2. The "trappings of elections" are about installing accountability,
> responsibility and reporting obligations and procedures into a new type of
> entity. They are the trappings of a governance structure, and have nothing
> to do with regulation.

  Here we disagree Peter...  In fact, without checks and balances through
elections bu those that are effected entities or regulation entities especially
have little of not accountability to those being regulated.

> Next, because ICANN represents an experiment in
> building a new model, with responsibilities that cross national boundaries,
> there is no Government that is appropriate for the task. The Government that
> found itself holding this burgeoning baby expressly decided it didn't want
> to try and be the governor or regulator of same when it began to toddle, and
> started crashing into the furniture of international jurisdictional and
> other problems. I suggest you read the Green and White papers.
> > > They have
> > > neither the financial means, nor the will.
> >
> > Precisely correct.  ICANN was never intended to be a regulator, and,
> > contrary to popular delusion, it has *never* had the will to be one.
> >
> Not everyone may have realised the corollary to contracts was enforcement
> mechanisms, but many of us have always done so, or been catching on quickly.
>
> > As far as funding is concerned, even for its true restricted role, ICANN
> > is very underfunded.(+) The funding required to deal with the imaginary
> > "powerful ICANN" role would be vastly larger.
>
> 3. Underfunded, true. Whether much more funding is required is debateable.
> The answer turns on how much of the enforcement and sanctions role is done
> inhouse, or contracted out , a la the UDRP

  Good point here as well.  But without contractually based regulatory
authority, enforcement cannot be realized...

>
>
>   >
> > > It is a job best left to governments.
> >
> > And the part of government that has power to regulate domain registries,
> > and ICANN as well, is the part that deals with anti-trust issues.
> >
> 4. This just demonstrates two misconceptions or prejudices. First, there is
> no such government. The interest of Governments in a nominal ICANN is
> represented by a  commitee of governments, known as the GAC. There is no
> section of the GAC with the power to regulate registries. The prejudice is
> the unspoken reliance on the US government.

  Yes and this is a problem that must be overcome...  But not by ICANN
in it's current form of the form that Stuart Lynn and the ICANN BOD
is considering or proposing in the Blueprint...

>
>
> Regulation in this model comes from the formation of compromise policies
> debated by the whole community, which seeks to balance imput from
> Governments, users, providers and tech specialists. Those policies are
> carried forward into contracts with or mandated by the natural monopolist,
> with explicit ior reserve powers in case of breach.
>
> > It's worth noting that there is absolutely nothing in the bylaws or
> > structure of ICANN that have the magic ability to turn it into a
> > regulator, or to grant it more power.(*) ICANN is constrained at a much
> > more basic level, because its only instruments are contracts.
>
> 5. The naivete here must be pretended not real. The power of the contracting
> party holding  rights to a natural monopoly is to withdraw/suspend  supply,
> or to fail to award services or licenses, on contractual terms which cannot
> be later succesfully attacked in a contracts court. Have a look at the UDRP
> for an example of contractual terms imposed by ICANN on second and third
> parties (registrars and registrants) and, curiously, in relation to non-net
> related matters, plus the ability to authorise dispute resolution providers,
> as an example of the real world.
>
> > means that whatever policies ICANN may adopt through its policy-making
> > process can *always* be trumped by the legal realities of contract
> > negotiations.
>
> 6. This confuses making the policy with implementing it in a contractual
> negotiation. The latter is a matter of the skill and steel of the
> negotiators. If the negotiators are unable to make a policy stick in an
> outside negotiation, the proper course is not to abandon the policy, but to
> return to the policy making body for fresh instructions.

  WIth US "Long Arm" statutes in contract law, very few countries can
indefinitely resist or escape....

>
>
> What makes this slightly more complicated is that its not an outside
> contract (as with, say, ICANN's insurers) but with one of the insiders. That
> complicates the negotiation, as the insider has a role in the internal
> negotiations in forming the policy, as well as its outside role once that
> policy has been defined in the consensus process.

  Exactly the best path to take.  That consensus must be measured however,
and to do such, as has been already established but not recognized fully
by the ICANN BOD and Staff, is the vote by the stakeholders/users in
which such policies would effect, either directly or indirectly...

>
>
> >  In concrete terms, it doesn't matter what policies ICANN
> > comes up with -- if a large registry doesn't sign the resulting
> > contract, the policy is meaningless.  Of course, there are things that
> > ICANN can do to try to cajole the registry into signing contracts.  But
> > mostly that consists of persuading entities with bigger clubs that they
> > ought to lean on the registry.
>
> 7. True, because life is usually a compromise and politics (including the
> politics of business) is about the art of the possible. But the consequences
> of not signing the contracts can be made to be onerous. And the existence of
> other sanctions is something which should be developed, and would be in a
> strong, responsive and accountable ICANN.

  Also exactly right here as well Peter.  And again this has been said
repeatedly and acknowledged  as so, yet denied by the ICANN BOD
and staff...

>
>
> >
> > (*) I think most people realize that a small non-profit corporation
> > can't simply put "We are the regulators of the Internet" in its bylaws,
> > and actually regulate the Internet.  But there are many people who
> > simply don't understand that putting "We are the regulators of the
> > Internet, and we elect our directors and are therefore legitimate" in
> > the bylaws doesn't work any better.
> >
> 8. You need to go back to point one. Regulaltors regulate only when they
> have power. Power in this case comes from the consent of the governed -to
> participate in this domain space instead of its alternatives. Power won't
> come from an assertion in the bylaws, but will come when those bylaws result
> in the participation of all stakeholders in the process and an agreement to
> be bound by the rules and processes developed. Just as words on a contract
> don't of themselves have any ability to govern the conduct of businesses, of
> course the bylaws can't achieve anything on their own. But, when they are
> written by the stakeholders in bottom up consensus as to what rules they
> will live by and govern their conduct by, and when the stakeholders trust
> the process, and its tested and found to support those principles, then they
> have a power that will surprise you. Have look at the power of other mere
> "bylaws" to affect the conduct of parties. I suggest you begin with Magna
> Carta 1215, and follow through the English revolution of the mid 1600's to
> the revolutions of the 1700's, including in your own country, for some well
> documented example.

  Well stated here Peter.  And yet again also said time and time again in
all be it different terms...

>
>
> > >  While I can't say I'm
> > > particularly happy with my governments track record on that point as
> > > of late, at least I have some semblance of representation, and my
> > > governments pockets are deep enough to engage in long, drawn-out suits
> > > involving monopolists.
> >
> > Precisely.  I'm absolutely amazed at the level of agreement we have
> > reached :-)
> >
> 9. If you genuinely believe that governments are required to, or should
> manage or regulate this, I regard that as a complete departure from the
> White Paper principles, in particular of the concept of an industry-led,
> self regulating, international body. You should declare yourself opposed to
> the concept of ICANN, and leave, or at least propose where the White Paper
> is wrong and how it should be modified in this fundamental issue.
>
> Regards
>
> Peter Dengate Thrush
> Barrister
> Wellington
>
> 644 499 8959
> 64 21 499 888
>
> fax  644 471 0672
>
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Regards,

--
Jeffrey A. Williams
Spokesman for INEGroup - (Over 127k members/stakeholders strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number: 214-244-4827 or 972-244-3801
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208


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