On the website of Harvard's Berkman Center for Internet and Society,
of which Larry Lessig is a faculty member together with Charles
Nesson and Jonathan Zittrain, and of which Mr. Lessig is also head
of the Advisory Board, Lessig has published the following:
"I am honored by the nomination by the ICANN board to the at-large
membership
position for North America, especially because I have been a critic
of the ICANN
process. I do not believe it is appropriate, however, to "campaign"
for the board
election until after the self-nominees have been selected. I will
therefore not
answer questions or give interviews about ICANN until that part of
the
nominating process is complete. I am sorry for any difficulty this
might create."
This appears on the face of it a laudable restraint, in deference to
the true
At-large candidates coming from the At-large membership itself,
rather than from
nominations by ICANN's Nominating Committee, created
undemocratically from without
the At-large membership by the ICANN Board.
However, more than mere restraint on the part of Mr. Lessig may be
involved in
his reticence to declare his positions on ICANN issues. He is a
self-professed critic
of the ICANN process, yet he is a prominent member of the Berkman
Center, which has
been instrumental in the accession of ICANN to power in the
Internet, some of whose
members, such as Jonathan Zittrain and Diane Cabell, have been
outright apologists
for ICANN, when not propagandists for it.
This apparently careful walking on the fence between support and
opposition to ICANN
by prominent cyberspace lawyers has been a feature of this process
from its start.
David Johnson, who co-created and co-edited the Cyber Law Institute
(CLI), an online service
and forum for the politico-legal aspects of Internet democracy, is
now outside counsel
for Network Solutions, Inc., ICANN's primary commercial partner;
David Post, Johnson's
partner in CLI and the founder of ICANNWatch, a web forum for ICANN
critiques, regularly
appears at laissez-faire capitalism think-tanks in Washington;
Michael Froomkin, a
professor of law whose specialty is government corporations and who
has been an outspoken
critic of ICANN's UDRP, has steadfastly refused to consider any use
of the law to counter
ICANN's many undemocratic procedures, not to mention its many
violations of U.S.
antitrust law.
In light of this non-commitment on the part of cyber lawyers, we the
Internet
community may justifiably ask Mr. Lessig what his principles are
regarding ICANN.
Does he accept its creation, which was by fiat, without the
participation of anyone
among the many stakeholders outside big business? Does he accept the
conduction of
ICANN through its initial policy-making phase - which included the
signing of binding
agreements with Network Solutions, domain name registrars, the IP
address allocating
agencies, and the U.S. Government - by an unelected nine-member
Board appointed
by employees of IBM, MCI, AT&T, and the lawfirm JonesDay? Does he
permit and justify
the machiavellian takeover of ICANN's Domain Name Supporting
Organization by trademark
lawyers and CORE, an Internet industry trade association? Does Mr.
Lessig countenance,
in the present instance, an At-large director election process which
has been controlled
and rigged from its inception by the unelected ICANN interim Board,
as the Internet
Democracy Project and others have documented? And, if Mr. Lessig
cannot countenance
the At-large process, will he nevertheless participate in it, and,
if elected, accept
his position as ICANN's faithful opposition and token critic?
Finally, will Mr. lessig ever speak his true feelings about ICANN,
while he remains a
prominent component of the Berkman Center, which, more than any
other legal
institution, has aided and abetted the U.S. Department of Commerce
and its creature
ICANN to take power over the Internet, to the exclusion of its
legitimate users and
stakeholders?
Michael Sondow
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"Lawyers come to think of administrative law and the
administrative process as significant and worthy of study
only in those areas where private interests think it worth
their while to demand protection. As a consequence lawyers
seeking for their clients elaborate procedural protection
modeled on the judicial process may, in an excess of
generalizing zeal, induce legislatures, administrative
agencies, and courts to extend such procedures into areas
where they are alien and inappropriate."
-- Jaffe & Nathanson, "Administrative Law"
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