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>Date: Sat, 10 Jul 1999 18:26:00 -0400 (EDT)
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>Date: Sat, 10 Jul 1999 05:44:03 -0700 (PDT)
>From: d3nnis <[EMAIL PROTECTED]>
>Subject: Re: [IDNO-DISCUSS] Re: [IFWP] Re: Rule of law vs. consensus
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>To: Kent Crispin <[EMAIL PROTECTED]>, [EMAIL PROTECTED],
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>References: Conversation <[EMAIL PROTECTED]>
> with last message <[EMAIL PROTECTED]>
>
>Hi Kent
>
>Re your comment to Jon Zittrain:
>
><<ICANN is a corporation, it is not a government. It has, or will
><<have, contractual relationships with other corporations and
><<organizations. Corporations are bound by the law, like all other
><<persons, real or fictitious.
>
><<There are other international corporations that exert significant
><<control over other entities through contracts; we don't speak of
><<their bylaws as a "constitution".
>
>ICANN may be a corporation, but it was created by government,
>endowed with taxpayer resources, and charged to carry out a governmental
>function. At best, ICANN is merely -- and temporarily -- a government =
>contractor assigned the task
>of privatising governmental resources and functions. At worst, it is a =
>thinly disguised government
>agency that has reinvented itself as a "business." Nevertheless, its =
>long-term goal is to someday
>become a private entity carrying out a private function.
>
>For so long as it is a government contractor, it functions as the govern=
>ment
>whenever it engages in any action mandated by government which affects =
>the
>constitutional rights of citizens. Even its non-mandated actions may ass=
>ume the
>proportions of state action if it exerts monopolistic control over some =
>aspect of life in the manner of
>a government.
>
>As long as it is still a government creation, still carrying out a functi=
>on that
>has not been privatised, its actions are subject to constitutional scruti=
>ny and total
>governmental oversight. So the task of amending its by-laws is, at prese=
>nt, a public, not a private,
>matter.
>
>It is too bad the Board keeps falling into thinking that it is a private =
>company already, and
>therefore free to do whatever it wishes. When the Board proposed a $1 =
>registration assessment, it
>was asserting the taxation power of the federal government. It has a lon=
>g way to
>go and grow before that $1 fee -- coming out of ICANN -- becomes a free =
>market manifestation of
>the law of supply and demand.
>
>Repeating that error often enough will cause the ICANN experiment to fail=
>.
>
>The exciting part about the ICANN experiment is precisely the challenge =
>to see if it can
>inject itself and its assets into a free market economy. If it can becom=
>e private, everyone will
>benefit by the expansion of the free market. If it simply stays where =
>it is, and never achieves
>privatisation, then it will have created a frightening new form of govern=
>ment tyranny -- the
>government agency that has liberated itself from the Constitution.
>
>----------
>> On Sat, Jul 10, 1999 at 01:14:39PM -0400, Jon Zittrain wrote:
>> >
>> > I don't for a minute believe that the rule of law, and process, aren'=
>t
>> > important. I'd hate to suggest anything of the sort. The principles=
> of
>> > the rule of law, and of due process, are quite distinct from the rule=
> of
>> > the market, and are among the bases of the White Paper. ICANN's by-l=
>aws
>> > are its consitution, and shouldn't be amended lightly.
>>
>> ICANN is a corporation, it is not a government. It has, or will
>> have, contractual relationships with other corporations and
>> organizations. Corporations are bound by the law, like all other
>> persons, real or fictitious.
>>
>> There are other international corporations that exert significant
>> control over other entities through contracts; we don't speak of
>> their bylaws as a "constitution".
>>
>> One might speak of "the consent of the governed" in this context.
>> Who would the governed be? In fact, the entities actually in
>> "governance" thrall to ICANN are the corporations and organizations
>> it has contracts with. Registries, registrars, and so on, are the
>> "governed", just as the Pizza Hut franchisees are "governed" by
>> Tricon Global Restaurants, Inc.
>>
>> > But the mere fact
>> > of amending them isn't itself enough to say there's no rule of law, =
>any
>> > more than Congress passing a law that amends a prior law, which they =
>do all
>> > the time. The only difference is that ICANN doesn't (yet?) have the =
>
>> > political legitimacy, either structurally or in fact, that Congress =
>
>> > does.
>>
>> *No* entity in ICANN 's position could *ever* have that kind of
>> legitimacy, and it is a grave, grave error to think it is possible.
>> What gives Congress legitimacy is the participation of a large
>> percentage of the total population in the election process. That
>> level of participation will never happen with ICANN, because the
>> things it has sway over are too esoteric to matter to the vast
>> majority of netizens. Therefore, the ones who participate will
>> inevitably be special interests, and the only real check on this
>> process remains governments -- in practicality, through anti-trust
>> laws.
>>
>> Every individual has a limited supply of free political energy: what
>> shall I do today -- save the rain forests, or fight the NSI monopoly?
>> There are thousands of legitimate causes clamoring for that political
>> energy, but none of them has the kind of political legitimacy that
>> Congress does, the kind of political legitimacy that allows Congress
>> to pass laws that can put a person to death, or put a corporation out
>> of business.
>>
>> > ICANN's accountability at the moment comes from the ICANN-DoC
>> > agreement whereby DoC can pull the plug if ICANN were to go off the =
>deep
>> > end.
>>
>> Ultimately, ICANN's accountability will *always* come from
>> government.
>>
>> --
>> Kent Crispin "Do good, and you'll be
>> [EMAIL PROTECTED] lonesome." -- Mark Twain
>> -
>> This message was sent via the IDNO-DISCUSS mailing list. To unsubscribe=
>,
>> send a message containing the line "unsubscribe idno-discuss" to
>> [EMAIL PROTECTED] For more information, see http://www.idno.org/
>
>
>
>
--
Richard Sexton | [EMAIL PROTECTED] | http://dns.vrx.net/tech/rootzone
http://killifish.vrx.net http://www.mbz.org http://lists.aquaria.net
Bannockburn, Ontario, Canada, 70 & 72 280SE, 83 300SD +1 (613) 473-1719
