Re: [IFWP] quasi-government role of ICANN illegal under U.S. law

[Michael Froomkin - U.Miami School of Law]

On Mon, 28 Jun 1999, Ronda Hauben wrote:

> ICANN is illegal and the U.S. government's effort to create
> ICANN is unconstitutional.
> 
> Is the Government Corporate Control Act law online? If so where?

All US statutes are online in many places.   I like the search form at
http://www.findlaw.com/casecode/code.html
31 usc 9102 is at 
http://law2.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t29t32+2229+0++31%20usc%209102

> I will take a look at your article when I get the chance, but have
> you looked at the opinion issued on the illegality of the FCC 
> schools and libraries corporation?
> 

I had not.  I thank you for it.  Its dicta suggests I was a little too
pessimistic and literal in my reading of the GCCA.  On the other hand, the
critical fact difference between that case and this one is that the RCCA
admitted it had been created by the FCC.  I don't think ICANN is going to
admit it was formed by the DOC, although it might be interesting to ask
that question under oath....

Furthermore, the tight relationship between the RCCA was reflected in many
of the foundational documents.  As the GAO put it:

"The certificate of incorporation of the Rural Health Care Corporation
specifies that the purpose of the corporation ". . . is defined in the
Federal Communications Commission's . . . rules at 47 C.F.R. � 69.618, as
it exists today and as it may be amended." The certificate of
incorporation further states that the corporation may engage in other
activities "so long as it is consistent with FCC Orders and Rules." 6 In
its letter to our Office of January 5, the Commission stated that it did
not envision these entities "operating outside the scope of the activities
set forth in the Commission's orders." Commission letter at 9. Under
Commission rules the boards of directors of these entities are comprised
of members either selected or approved by the Chairman of the Commission.
The size and composition of the boards is set by the Commission, as is the
term of office. The Commission Chairman must approve the removal of any
director as well as a resolution to dissolve the Corporation. The Chief
Executive Officer (CEO) of these corporations must be approved by the
Chairman of the Commission. Authority to enter into contracts must be in
compliance with Commission rules. All of these requirements have been
included in the corporations' by-laws. Authority to Establish the
Corporations."

While the same may not have been true of the charter of the schools and
libraries corp, it appears that the FCC picked members of the board of
that body also.

ICANN would claim (with some justice) that it is considerably more
independent de jure, and also de facto.  Unless the articles of
incorporation say 'we exist to do what the DOC wants' (which is unlikely),
the only issue will be what people thought they were doing....
And we see the outlines of that in 
http://com-notes.house.gov/cchear/hearings106.nsf/b2cc6be46b2b2d2285256720007e4972/89227d363b2c70c58525679800537265/$FILE/doc.pdf

Unless you are prepared to say people are lying -- and I have seen no
evidence of that -- it still doesn't look like you would be able to
persuade a court.  At least, it would be very hard, since the essence
of the claim would be that there was a lot of nudge and wink going on.
Even if it were true, and I am not saying it is, it would be very hard to
prove without a whistle-blower.

That said, it would still be interesting to know who selected the current
ICANN Board....

> >You will note there that most of the corporations the GCCA aimed to squash
> >were formed by US government employees and owned in whole or part by the
> >USG. ICANN is different: no USG employees formed it, and the USG owns none
> 
> Postel, whose name all was being done in was  U.S. government contractor
> when ICANN was incorporated and essentially it was in his name
> that the bylaws etc were supposedly all done.

Just being a contractor clearly doesn't bring you within the GCCA.  It
takes more.  Otherwise no defense contractor would ever be able to create
a subsidiary.

> 
> And the Schools and Libraries Corporation that the FCC tried
> to create wasn't the kind of example you give.
> 
> In fact it is the opposite. The fact that the U.S. government is
> creating a so called private corporation to do government
> activity means that the people involved in ICANN become government
> functionaries, as they are acting under the color of the law
> guiding what U.S. government entities have to do.
>  
> You are turning the law on its head. You are claiming that
> if someone isn't a U.S. government employee, but the U.S. government
> creates a corporation for him to do public business as a private
> entity than that is ok.

No, I think if that is what happened it is a lousy precedent and may be a
violation of the separation of powers and the Carter Coal doctrine.  But
what I think and what I think I can get a court to think are not always
the same.  That said, the GAO report you note (viewable at
http://frwebgate4.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=941858450+0+1+0&WAISaction=retrieve
for anyone else interested), certainly suggests that there's potentially a
good arguable case here, **depending on what the facts actually are**. I
stress that we don't know that for sure (which is itself an issue).

I've cut the rest of your post.  Since the APA didn't apply to this the
government had no obligation to listen to anyone, including you.  That's
a bug, not a feature, as regards good government, but it's pretty clearly
the law.


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A. Michael Froomkin   |    Professor of Law    |   [EMAIL PROTECTED]
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