Re: [ga] Re: Even Handed Application of The Rules (Yes or No? -Weshall see) (was Re: [ga] Posting rights of Jeff Williams suspendedfor14 days).

[Karl Auerbach <karl@CaveBear.com>]

On Fri, 16 May 2003, Roberto Gaetano wrote:

There is much to discuss in your post, but one thing I need to reach 
quickly:

> It has been a precise choice (whether a good or a bad one is beyond the 
> subject of the discussion) to create ICANN as a private corporation.

ICANN is a California Non-Profit/Public Benefit Corporation.  That kind of 
corporation has very distinct and real obligations towards the public.  
The word "private" is stretched somewhat thin, to the point of being 
translucent, when applied to this kind of entity.

In addition, ICANN receives an exemption from US Federal taxes because 
ICANN has applied for, and has received a 501(c)(3) exemption.  That 
exemption requires that ICANN obey a rather thick set of rules that limit 
many actions and mandate others.  Again, the 501(c)(3) status begins to 
weaken the concept of "privateness".

And we have to remember that the concept of a corporation derives not from 
natural laws but is rather the result of the laws of various communities 
that recognize certain kinds of associations.  While the human beings who 
participate in a corporation are "private", the corporation exists only 
because the community choses to acknowledge that association and the 
concept of "private" or "public" flows from that acknowledgement.

In other words, a corporation such as ICANN is only "private" insofar as
it is given "private" character by the community that creates it.  And
California and the US tax code have very clearly placed ICANN at a point
that is somewhat distant from the the "private" end of the spectrum and
somewhat closer to the "public" end of the continuium.

ICANN's existance as an unacknowledged daughter of the US Department of
Commerce further pushes ICANN away from the "private" end of the scale.

And ICANN's role over the internet, a role that has the character of 
governmental powers to decide, pushes ICANN yet further.

So, the word "private" is not a magic talisman that wards off ICANN's
responsibiliy to adhere to principles such as accountability, fair and
even dealing, open participation, and transparent processes and
decisionmaking.

ICANN makes choices that affect everybody who is affected by the internet.
And being somewhat in the middle of the bridge between purely private and
purely public, ICANN is not entirely free to prevent unwelcome voices from 
saying unwelcome things in ICANN's forums.

	--karl--



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