Re: [ga] RE: is ICANN or is ICANN not?

[Karl Auerbach <karl@xxxxxxxxxxxx>]

Gomes, Chuck wrote:
> Elisabeth,
>
> If ICANN is providing a useful service with appropriate community input,
> does it really matter who gave ICANN the mandate or authority?

It does.

ICANN *is* a forum.  An synonym is that ICANN is a "combination".

And ICANN is a combination that establishes rules for a marketplace and makes 
final choices regarding who may, and who may not be a vendor in that 
marketplace, establishes many aspects of what are and what are not acceptable 
products in that marketplace, establishes price components, takes an override 
fee on all sales, and defines several of the terms of sales.  This could be 
called, more succinctly, "restraint of trade."

In other words ICANN is "a combination in restraint of trade."

Now, some combinations in restraint of trade are frowned upon by the laws of 
various countries.  And often that frowning applies not only to the forum 
itself but also to those vendors who participate in those fora.

One way in which such a combination might escape the effects of those frowns is 
if it is operated under the authority of a governmental authority with 
appropriate authority.  NTIA/Dept of Commerce is certainly a governmental 
authority.  But it is not clear whether NTIA/DoC have endowed ICANN with 
governmental immunity; nor is it clear whether NTIA/DoC have the legal 
authority to do so.

So yes, it is a *very* important question.  And any company or person who 
participates in ICANN should ask their legal counsel whether such participation 
might engender consequences should some country decide to move from frowing to 
enforcement, or if some private actor should ask that question in a legal 
proceeding in some country.

		--karl--