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

[Eric Dierker <ERIC@HI-TEK.COM>]

Mr. Auerbach

I bow, not to the determination of whether or not governance was effectively
transferred or not but, to the over all compelling logic of your entire post.

I believe this leads to a conclusion that as long as we have; constituencies,
members and a Internet Community as a Whole, this group is on the right track
in recommending that these constituencies be designed and implemented in such
a way as to allow the greatest reflection of representation of the Internet
Community as a Whole(ICW).

Further it stands to reason that some of the constituencies should be dropped
as soon as practical in that they are operating very close to impropriety by
influencing contracting with themselves. Interesting problem if ICANN is not a
governance.

Sincerely,

Karl Auerbach wrote:

> > 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--

--
This message was passed to you via the wg-review@dnso.org list.
Send mail to majordomo@dnso.org to unsubscribe
("unsubscribe wg-review" in the body of the message).
Archives at http://www.dnso.org/archives.html