On Fri, Jul 02, 1999 at 07:37:19PM -0400, James Love wrote:
> Pete Farmer wrote:
> > Can ICANN establish a fee on domain names to cover administration
> costs?
> > Yes -- that's within its charter. Can ICANN impose a fee whose proceeds
> > would be used to bring Internet access to schools and libraries in
> > sub-Sahara Africa? I don't think so -- it's clearly outside of ICANN's
> > charter.
>
> What "charter" is that? Becky Burr says after next year, ICANN
> will be a free agent.
Many people are under the delusion that ICANN's bylaws and articles
of incorporation provide control. They do not. People also think
that membership and representative structures provide control. They
don't, either.
The elaborate bylaws and representative structures were implemented
those because people insisted on it, not because they are actually
effective. They are not effective, and, intrinsically, they cannot
be effective, for the following simple reason:
>From the point of view of the "governed" (the Internet at large) an
out of control ICANN board is absolutely indistinguishable from an
out of control ICANN membership. And given the almost inevitable
small size of the ICANN membership (even a few thousand would be
incredible) the membership is unavoidably susceptible to capture by
special interests, demagogues, and mob thinking. Even more, even if
a very large membership were created, there is simply no guarantee
that a large membership would be competent.
This may seem to be a terrible state of affairs, but in fact it is
largely irrelevant.
The real controls over ICANN will remain governmental in nature,
primarily in the form of anti-trust laws. The US DoJ, the EU's
DG-IV, and anti-trust authorities around the world will be watching
ICANN very closely. ICANN is a California non-profit, so in
practice, US anti-trust law is the most prominent, but in fact ICANN
simply cannot afford to do anything that will irritate any of these
anti-trust authorities.
This is the fundamental oversight over ICANN. It isn't going to go
away, ever.
>>It might "encourage" the governments to act in this way. Possibly ICANN
>>could even play a role as significant as that of the National Conference of
>>Commissioners on Uniform State Laws, which draws up the Uniform Commercial
>>Code (UCC) in the US. But the UCC isn't law unless the states decide to let
>>it be law.
>
> Isn't the major power of ICANN related to control of the A root
> server,
> and the conditions that it can place on anyone who wants their domain
> identified?
Another common misconception, on many levels.
Physically, of course, the A root server could be blown to
smithereens tomorrow. It would make headlines, but the net would not
notice it. That's precisely why there are more than a dozen root
servers -- any one of them is expendable.
> If it was impossible to replace the A root server, than this would
> give ICANN the power to anything it wanted. If it is merely hard to
> replace the root, then it would have considerable power, but not
> unlimited.
>From essentially all perspectives it is relatively TRIVIAL to replace
the A root server -- the emphasis on the "A root server" is
misplaced. Moreover, the term is ambiguous -- it could mean 1) a
particular physical machine; 2) the software running on that machine;
3) one of the 13 servers that provide information on the root zone to
the rest of the network; or 4) "the provider of root zone information
to the rest of the root servers". Looking at each of those meanings
in turn:
1) -- replacing a physical machine: only a moderate bit of money
2) -- replacing the software: restore from the previous backup
3) -- replace one of the 13 root servers: put the new
machine/software on the network, and replace the hint file in the
BIND distribution -- old ones will remain in circulation for a
decade, but that won't cause any operational difficulties. If the IP
address could be reused the change would be completely invisible.
4) -- replacing the source of the root zone: The root zone is
contained in a tiny file with 240 some-odd entries, and it changes
very rarely. It could be distributed via email to the 13 root
servers from *anywhere* in the world. The source of the root zone
could be your laptop.
So, replacing the A root server is simply not a big deal.
The only really interesting "power" in all this is control over the
*content* of the root zone. And here, as elsewehere, ICANN's "power"
is strictly limited: 1) The operators of the 13 root servers must
agree to any change ICANN proposes -- ICANN has no legal authority
over *any* of them. 2) ICANN will create contracts with those root
server operators, but they will be bilateral agreements or MoUs, with
little or no coercive power. 3) In practical terms, most entries in
the root zone simply can't be changed -- .com names *have* to
continue to resolve, for example; .us, .uk, .fr, .it, .gov, .edu etc
-- those names will continue to resolve, no matter what, because
ICANN can't disrupt service for those end users.
So ICANN has very constrained powers over the content of the root
zone.
There are only two areas where ICANN has any potential for exertion
of authority 1) with small ccTLDs, and then only where the sovereign
entity in charge wants a change made; and 2) the possible addition of
new gTLDs. In all other cases ICANN's hands are tied.
>
>>I recognize that reasonable people have reasonable concerns about ICANN. My
>>impression of Mr. Cook's contributions, however, is that they simply play to
>>people's paranoia of back-room conspiracy. (In another time, we could
>>substitute "Trilateral Commission" or "Elders of Zion" for "ICANN.")
>>
>>It's a seductive way of maintaining the status quo -- and NSI's monopoly.
>
>
> I look at the NSI like Bell Atlantic or other poorly regulated
> monopolies --- something to worry about, perhaps an opportunity for
> more accountability or some competition, but mostly about money,
> for that firm.
>
> I look at the ICANN process a little differently. It isn't really
> a substitute for NSI as much as it would be a substitute for the
> government.
For some strange definition of "government", perhaps -- a definition
that excludes any real possibility of enforcement.
The analogy is too weak to be helpful, and worse, is very misleading.
The fact is that, with the sole exception of registrars in
.com/.net/.org, ICANN's contractual arrangements with the entities it
supposedly "controls" are in the form of MoUs, which have essentially
no coercive force behind them.
In the case of the registrar accreditation agreements, you can be
certain that the NTIA was completely aware of them, and that they
have, therefore, the precise oversight designated by the USG. That
is, you can view them as the USG's plan for how to divest
.com/.net/.org. That is, it is the government that provides the
power, not ICANN.
> I can imagine good or bad things coming from this new cyber
> goverance organization. Suppose, for example, that ICANN actually
> gave ordinary people the abilty to elect the board of directors,
> and it could not be controlled by big corporate interests.
> Suppose further that privacy advocates ran a successful campaign
> to elect board members who promised to require every .com
> domain to post its privacy policy. I actually asked
> ICANN if this could happen, and I believe the answer is yes
> (not that such an effort would succeed, but simply that
> the board could elect to do such things, if it wanted to.
It sure could. It could claim control of the moon, too. The real
issue is what ICANN *actually* can do. And the cold fact is
that ICANN can't do very much, it won't be able to do much for
years, and only then if it has the confidence of those it tries to
get to sign contracts with it.
> So much will depend upon who will control this organization, and
> how much "lock-in" occurs around the main root.
It's unfortunate that misunderstandings in this area are so pervasive.
Regardless of what people (or the Board, for that matter) may think,
ICANN is almost totally powerless. The only hint of "power" comes
from the registrar accreditation agreements, and those are
essentially the instrument of the USG, not ICANN. Even after NTIA
"cuts the cord", the DoJ will be watching ICANN very closely -- ICANN
will effectively be under US supervision for a long time into the
future.
> Ralph Nader and I are meeting with Esther on Wed, and we'll be
> talking about these things further.
I hope you will pay attention to the realities of what ICANN
actually can do, rather than on imaginary concerns about what it
might do if it actually had power...
--
Kent Crispin "Do good, and you'll be
[EMAIL PROTECTED] lonesome." -- Mark Twain
