At 04:23 PM 7/10/99 , Kent Crispin wrote:
>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-laws
> > 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.
True enough, but the laws that bind corporations generally are meant to
give them really wide latitude in what they can do.
>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.
Well, it's a little bit of a bootstrap: many of the "governed" might say
they'd have no interest in signing a contract binding themselves to duties
and responsibilities under ICANN if ICANN weren't prepared to bind itself
to certain behaviors that map very much to the sorts of limits we expect of
modern democratic governments. Pizza Hut (and Pepsico) may not have notice
and comment periods for its actions; it may not have review and
reconsideration provisions for its "substantive" decisions, and frankly
doesn't need them. The market will let it know soon enough if stuffed
crust pizza is an abomination.
ICANN has external checks, too, of course--gov't's could pretty readily
crush it in a moment, for starters, and its downstream
"customers"--registry operators, registrars, etc.--at least in the absence
of contracts could decide to get their central coordination
elsewhere. That's no doubt what shaped, if not constrained, Jon's behavior
as he tried to be a "responsible" IANA. But it's too easy to leave it at
that, because the costs of switching--particularly if the root isn't to be
split in the meantime--are high, and because the registries themselves
don't represent all the interests that claim to have a stake in ICANN's
activities. I happily concede the loadedness of the terms "constitutional"
applied to ICANN's structure and "governance" applied to some of its
functions. But ICANN, if fully seated, will likely have an authoritative
position over a root that most of the world listens to, and having it treat
its bylaws more like a constitution--designed to balance different
interests, and not to be amended lightly--is more in line with its role, to
my mind, than to think of them as simply the documents of a private company
engaged in a series of wholly voluntary contracts.
> > 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.
ICANN's legitimacy may be of a different kind than Congress--perhaps thanks
to the much more limited role the population at large would play in its
workings--but its degree of legitimacy should be no less, at least with
respect to the functions its supposed to carry out. ICANN has no business
worrying about national defense and highway construction, and would have no
legitimacy attempting to make policy in those areas; it does need
legitimacy with respect to the sorts of functions the White Paper laid out.
>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.
If I'm wanting to be a registrar, and the registry has agreed that it'll
only let ICANN-accredited registrars have a shot at registering names at a
discounted rate, my gaining accreditation from ICANN can be what decides
whether I'm in or out of business. The contract put in front of me by
ICANN is one that I'd have a hard time saying no to. I'm not bothered by
the ICANN accreditation contract as it stands, but to think of it as "just
another contract" between private actors doesn't tell the whole story, just
as any contract between a monopolist and someone who needs the monopolist's
goods isn't "just another contract" between voluntary actors.
> > 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.
Yes, ultimately. I think ICANN is better off if it has internal mechanisms
for accountability so that gov't's need not step in--or threaten to step
in--to keep it in line. ...JZ
>--
>Kent Crispin "Do good, and you'll be
>[EMAIL PROTECTED] lonesome." -- Mark Twain
