Re: [wg-c] Pre-sold TLDs

[Karl Auerbach <karl@CaveBear.com>]

> Given that the NTIA's 9th inning play, to TAKE OVER the
> Cooperative Agreement from the NSF (in Sept. 1998) and write
> Amendment 11, was the decisive factor in the court's ability to
> "find" immunity for NSI, the legal context is NOT so distinct and
> different, in fact it's the SAME.

You miss the point.  NTIA, in your case, can (and did) claim to inherit
the authority of NSF by virtue of its sucession to the NSF-NSI cooperative
agreement.  (The decision didn't really deal with this, but rather simply
assumed it.)

The situation with NTIA-ICANN is entirely different.  There is no
inheritance from NSF for the NTIA-ICANN contract or the entire NTIA-ICANN
cozy relationship.

Of course NTIA still has the old Cooperative agreement derived from NSF
between it and NSI.  But that that is a distinct agreement from what has
transpired from NTIA via the green and white papers, its blessing of
ICANN, and its contract with ICANN.

(One ought to notice that *nowhere* in all of this is NSF, NTIA, or any
agency of the US government, other than Congress itself, empowered to
expand, or contract, the scope of trade and service marks.)


> The NTIA took over the contract because immunity under NSF was dubious
> at best.

NSF's authority was at least grounded in a statute and the NSF-NSI
cooperative agreement was entered into via a proper acquisition process.  
NTIA has zero statutory authority and claims to act merely on the basis of
an Executive Order which, itself, is on dubious grounds.  (The President
can issue an Executive Order to make pigs fly, but unless there is a
statute giving him/her power to make that order or there is a
Constitutional basis, that order is without force.)


> Given that the NSF is a government FUNDED agency, but not a
> government AGENCY as is the NTIA (see the law regarding so-called "federal
> instrumentality" and immunity) immunity under an agreement with the NSF
> would likely not apply.

NSF is an arm of the US Federal Government.  No matter what one calls it,
it is still subject to the requirement that it trace its authority back to
the Constitution.

Sure, NSF and NTIA have different organic powers.  If one reads the acts
that created them one finds that NSF has rather larger powers to actually
take action.  Indeed, the recognition of NTIA's lack of power to
"do" things is well demonstrated by the CREDA between ICANN and NIST -
that's "NIST", not "NTIA".

(Yes, there is a governmental shell game going on.)


> The decisive factor in the court's decision came not from the
> involvement of the NSF but precisely from the role assumed by
> the NTIA which minimized and superceded the role of the NSF.

Not from my reading of the opinion.  I read exactly the opposite, that the
court found NTIA's power to derive solely from its role as sucessor
administrator to the NSF-NSI contract.  There was no finding of an
independent base of authority for NTIA - it was unnecessary for the court
to deal with that question.

It will be interesting to hear what the GAO says.


> The question remains however, does the statutory power exist
> within the NTIA to grant ICANN, NSI, or any other private
> company the monopoly right to make policy decisions that are
> devoid of any technical content?  In our case, the court granted
> them that right.

No, the court did not grant them that right.  Rather it denied your
claim.  That's a subtle distinction, and one that probably doesn't feel
good from your point of view, but it is a distinction that demonstrates
that others may be more successful.

		--karl--