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

[Kent Crispin <kent@songbird.com>]

On Tue, Jan 30, 2001 at 05:17:10PM -0800, Eric Dierker 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.
> 
> "The Internet Corporation for Assigned Names and Numbers (ICANN) is the
> non-profit corporation that was formed to assume responsibility for the
> IP address space allocation, protocol parameter assignment, domain name
> system
> management, and root server system management functions previously
> performed under U.S. Government contract by IANA and other entities."
>
> (perhaps a translation is necessary, please let me know your native
> tongue and I will be happy to help provide you with one)

There is a subtle distinction between words and reality -- you should
study it some time.  In *fact*, the USG has not given up any authority. 
In *fact*, the USG explicitly stated in the GAO that it was retaining 
control of the root zone indefinitely.  In *fact*, the USG can withdraw 
from its contract with ICANN at any time.

> The rest of your circular argument stems from a complete lack of respect
> for the same contracts you purport are the whole basis for ICANN's
> existence.

Nope.  I respect those contracts very much.  I just understand them, 
that's all.

> The corporate by-laws and articles are in fact a binding contract with
> either the stockholders or in this case members of the corporation. (I
> apologize here because I believed I was dealing with a lawyer the way
> you twist words around) Any attorney can explain that. Go back and
> review the earliest posts regarding Calif. Corporations code.

I wrote some of those posts.  The fact remains, ICANN has no members.

> "Nonsense ...the bylaws and articles are relatively unimportant."
> (Crispin)
> This is disgusting, I am sure that laws and morals are equally
> unimportant to you Mr. Crispin)

Oh goody.  You've run out of steam completely, and are down to useless 
ad hominems.  

> By it's own charter ICANN, as shown by the amended by-laws which I
> copied and included in my last post on this subject, has members. In a
> non-profit these are the same as stockholders. 

Article II, Section 1:

    The Corporation shall not have members as defined in the California
    Nonprofit Public Benefit Corporation Law ("CNPBCL"), notwithstanding
    the use of the term "Member" in these bylaws, in a selection plan
    adopted by Board resolution, or in any other action of the Board. 
    Instead, the Corporation shall allow individuals (described in these
    bylaws as "Members") to participate in the activities of the
    Corporation as described in this Article II and in a selection plan
    adopted by Board resolution, and only to the extent set forth in
    this Article II and in a selection plan adopted by Board resolution. 

I don't know how it could be more plain.  The corporation doesn't have
members.  (I know that Karl Auerbach has entertaining legal theories. 
You just have to consider that Karl is a full-time engineer who got a
law degree, while the bylaws were written by full-time lawyers that
everybody (except Karl) thinks are top notch.)

> In this case they are
> members of the Internet Community as a whole.( again this is a quote
> from a binding legal document or as you like to say contract)  So now
> when you talk about contracts, let us be clear the corporation is only
> really binding it's stockholders interest in the corporation.  Therefore
> when ICANN signs a contract they do it on my behalf as a member. (see
> derivative actions against corporations)

ICANN doesn't have members.  Article II, Section 1

> Let me put it another way;  If ICANN continues to break it's contractual
> relationship with it's own members who is going to enter a contract with
> ICANN.

ICANN doesn't have members.   Article II, Section 1

> I believe what you are really trying to say is that if ICANN does not do
> what the registries and root servers tell it to do then it will be shut
> down by those very powerful forces. I love thinly veiled threats.

I have just had an epiphany:  You are hung up on the notion of TELLING 
PEOPLE WHAT TO DO.  You think the role of ICANN is to tell people what 
to do, and if ICANN doesn't tell the registries what to do, the 
registries must tell ICANN what to do.  For you, it is purely a matter 
of who has power; who gets to "tell people what to do".

That's not the way it is.  The relationship between ICANN and the
registries *must be* a cooperative one, a relationship of mutual
benefit.  ICANN offers a number of valuable services to the registries,
one of which is collecting community feedback.  This is a very different
thing from being *ruled* by the community.  ICANN operates *for* the
benefit of the community.  It is not operated *by* the community. 

> Just
> remember by law and history the CORPORATION is its MEMBERS(in for profit
> parlance, stockholders).

ICANN doesn't have members.   Article II, Section 1

> I dare these megacorp registries to take their contracts elsewhere, as a
> matter of fact I know of some engines that could replace Network
> Solutions tomorrow.  Keep in mind that in your corporate world ICANN is
> a monopoly.

Yep, I know that very well.  That is why I keep repeating that the true 
oversight over ICANN is anti trust authorities.

> If it follows it's mandate and allows grass root
> representation of the "Internet Community as a Whole" it can fare very
> well.
> 
> One last point your comments suggest that we should investigate the use
> of constituencies and contracts with registries for forms of insider
> trading and self dealing.

Hmm.  Maybe something is sinking in -- I have been saying repeatedly 
that the fundamental legal issue with ICANN is anti-trust.  Maybe you 
are starting to understand that.  A bit of progress.

-- 
Kent Crispin                               "Be good, and you will be
kent@songbird.com                           lonesome." -- Mark Twain
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