Re: [wg-review] Clarifications requested from BoD, Staff, NC, TC, Chair prior to co-Chair elections

[Michael Sondow <msondow@iciiu.org>]

Milton Mueller wrote:

> The real point is that many people have a completely mistaken idea about
> the nature of ICANN -- they think it is some kind of government agency,
> and judge it in those terms.  But it is not a government.  It is a
> corporation.
> 
> In fact, you would be better off thinking of it as a corporation that
> offers products (coordination services and anti-trust shielding) to
> governments, registries, ISPs, and so on.

This is corrobborated by the NTIA contract with ICANN 
(NIST Purchase Order No. 40S8NT067D20;
http://www.icann.org/general/iana-contract-09feb00.htm) 
for the IANA function (delegating IP numbers), which is treated in
the contract as a service. However, it should be kept clearly in
mind that the purported provision of goods and services
by ICANN has been a smokescreen to hide what ICANN does in addition:
create policy that affects and regulates trade and commerce.

> The "anti-trust shield" product (if I may use that term) is the really
> interesting one.  Central coordination of access to resources, if done
> by industry itself, would immediately arouse the suspicion of government
> regulators, because central control of those functions would be a pure
> monopoly.  So ICANN offers to the registries (ccTLD, gTLD, and address
> registries) a non-profit central coordination facility with processes
> that provide fair allocation of these critical resources.  

But not fair, so long as ICANN is no more than a consorcium of the
private interests which would be seen as an illegal trust if they
were to do it themselves directly.

> Governments,
> in turn, get the advantage that they only have one entity that they
> have to look at for anti-trust concerns: ICANN.

And they get the added advantage of the GAC, whose "principles", now
referred to as law by governments, are those governments' prop for
claiming sovereignty over their nation's ccTLD.

> How does that fit in to the purpose of this WG? Simply this: the primary
> customers of ICANN (in this model) are registries and governments, and
> the primary customers are the ones for whom policy is developed, and a
> large part of the design of ICANN's structure is to deal with that
> reality.  Many people in this WG believe that oversight for ICANN comes
> from "the people", and they are busily crafting structures for that
> purpose.  But in fact, the true oversight for ICANN does not come from a
> few hundred people on email lists; it comes from anti-trust authorities
> in various governments.

Perfectly true. What is most unfortunate is that the antitrust
authority in the United States - the Department of Justice - which
has authority over the California corporation ICANN, is acting
politically and in agreement with the Department of Commerce's
decision to give regulatory authority over the Internet to big
business, rather than applying the law to ICANN, which de jure as
well as de fait is an illegal trust.

M.S.
ICIIU.ORG
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