Re: [wg-review] Constituencies, 1 governance and legality

[Karl Auerbach <karl@CaveBear.com>]

> Dear Mr. Crispin,
>
> > The U.S. Government turned over it's governmental authority to ICANN.
>
> "Sorry, that is absolutely silly.  The USG did no such thing.  It has
> explicitly stated that." (Crispin)
>
> Oh no, I am sorry, if you read the material which is posted on ICANN's
> web site you would see you are very wrong. Give a citation to this
> outlandish statement.

This is going to be a rare posting indeed:  Kent is right.  The US
Department of Commerce has not handed control of its DNS root system or
the IP address space to ICANN.

According to the report of Congress' GAO issued on July 7, 2000: "the
[Department of Commerce's] authority to transfer control of the
authoritative root server is unclear but the department [of Commerce] has
no current plans to effect such a transfer."

That does not mean, however, that ICANN is not governance - indeed ICANN
clearly is intent on being governance, perhaps only over a limited number
of matters, but it is governing no less than an agency that inspects the
equally limited matter of purity of medicines. The UDRP is an example of
Internet governance in action - it is part of the Lex-ICANNia that applies
to control the actions of anyone who wants to acquire a domain name.

The interesting question, raised by Michael Froomkin, is just exactly what
is the US Department of Commerce going to do when ICANN issues a decision?
If the Department fawns over itself to adopt the decision without any
meaningful public participation or process involving the possibility of
rejection of ICANN's decision it will fairly clear that the Department has
made an effective transfer and has been less than forthcoming with the GAO
and is elevating form over substance.

A corrolary question is what will the Department do if it choses to act
either without or contrary to an ICANN decision?  It does seem that such
could occur if the Department did indeed withhold final authority over its
DNS and the IP address space.

First among ICANN's purposes is "lessening the burdens of government" (yes
that's a quote, cut and pasted directly from the Articles of
Incorporation.)

One does have to ask, what are those burdens that lay so heavily on
government?  Isn't the answer clearly "governing"?   It seems that
ICANN's purpose is indeed to govern in the stead of a real government.

But apart from that - even if ICANN were to be something less than
"government", we face the following facts:

  - ICANN is a "public benefit" corporation under California law

  - ICANN has obtained US Federal Tax exempt status under IRS 501(c)(3)

  - ICANN's Articles of Incorporation state that "[t]he Corporation
    shall operate for the benefit of the Internet community as a whole"

  - ICANN's bylaws state that "[t]he Corporation and its subordinate
    entities shall operate to the maximum extent feasible in an open
    and transparent manner and consistent with procedures designed to
    ensure fairness."

When these are added up it becomes crystal clear that has an obligation to
be far more than merely an industrial advocate that can operate with the
same disregard of the public as a privately held, tax paying, private
entity.

		--karl--





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