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

[Kent Crispin <kent@songbird.com>]

On Wed, Jan 31, 2001 at 09:10:55PM -0500, Sandy Harris wrote:
> Kent Crispin wrote:
> > 
> > On Wed, Jan 31, 2001 at 06:48:02PM -0500, Sandy Harris wrote:
> > > Kent Crispin wrote:
> > >
> > > > Do you really think that allowing any arbitrary person in the world
> > > > standing to bring legal action against the corporation would be in the
> > > > best interests of the corporation?
> > >
> > > Obviously not, but the corporation's interests are not the key factor.
> > 
> > They are the key factor as far as the corporation is concerned.  That is
> > the nature of a corporation, as opposed to a government
> 
> This one is incorporated as a "non-profit public benefit corporation", so
> "public benefit" must over-ride any other interests the corporation has.

Interesting theory.  Could you provide a little explanation of what you 
mean by "public benefit" and why what I describe wouldn't fit, and then 
point me to the relevant statutes that enshrine your definition in the 
law? 

> > Or a veto from registries for things that would put them out of
> > business, or a veto from registrars for the same reason.
> 
> No. Granted, they should be heard, but they should not have a veto.
>
> > An organization under control of a totally open membership could simply
> > decide, for example, that all domain names should be free.
> 
> Why not? They were for years.
>
> Yes, I know it would be irresponsible to decide that without considering
> the consequences and ensuring that the net would continue to function under
> such a regime.
>
> On the other hand, it is irresponsible to consider registrars' economic
> interests as a major factor in setting net policy.

> They provide a service
> and should be paid for it, but their economic interests are opposed to
> those of users, and our goal is supposed to be "public benefit".

:-) Sorry, I have to laugh.

You seriously misunderstand.  ICANN has no special legal power over
registries, and saying that ICANN works for the "public benefit" doesn't 
grant ICANN any extra magic.

In fact, what ICANN is or was created for is largely irrelevant -- in
the hard real world, statements of good intentions like "working for the
public benefit" don't carry much weight -- anyone can talk a good line,
and "public benefit" is a nice warm fuzzy.  

Instead, the relevant questions are who controls ICANN, and what does
ICANN do, not the fine rhetoric and bizarre and baroque internal
representational structures are enshrined in the bylaws.  Whoever
controls ICANN can modify the bylaws as they see fit, and nits about the
exact circumstances under which the bylaws can be changed, or the legal
constraints on bylaw changes, do not materially alter this fundamental
point. 

If ICANN is controlled by a bunch of elected netizens, then what you
propose is that a group of for-profit companies (registries and registrars)
be "regulated" by a bunch of elected netizens.

But if Microsoft and a bunch of other software companies colluded in a
clear violation of anti-trust law, the remedy would not be to create a
small non-profit corporation, and put Microsoft and friends under the
regulatory control of this corporation's board of directors, regardless
of how those directors are selected or how they make their decisions or
what the stated purpose of their organization is.  Such a construct
would be contrary to the basic premise that free enterprise and
competition should control markets, and a strong imposition on the
rights of those companies. 

Yet you apparently believe that registries and registrars should be
controlled by such a scheme.

There is no legal basis for such control: ICANN has no legal authority
or moral ligitimacy to exercise control over any company, organization
or person, except itself; ICANN has no "right" to regulate *anything*. 

Your model, therefore, is based on fundamental flaw that has both
practical and moral components: you assume that ICANN has a *right* to
regulate registries and registrars, and the *power* to do so.  But it
has neither.

Instead, the fundamental premise of ICANN's existence is that
registries/registrars are independent businesses that will compete in
the marketplace.  That competition that is supposed to be the
consumers lever over registries and registrars, not votes in ICANN.

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