Re: [ga] lawyers

[Joop Teernstra <terastra@xxxxxxxxxxxxxx>]

At 11:51 p.m. 9/01/2006, you wrote:

> On Mon, 9 Jan 2006, Joop Teernstra wrote:
>
> > > I agree, ICANN is ripe for being at the wrong end of legal actions 
> > > claiming that ICANN has unfairly and improperly acted as a combination 
> > > for the purpose of restraining trade, restricting the entry of vendors 
> > > into the marketplace, establishing minimum prices, and prohibiting new 
> > > product innovations.
>
> > What will make these legal actions hard is the reality is that behind 
> > ICANN's trade restrictive policies stands (hands-off, most of the time ) 
> > the government of a superpower at war.
>
> What you are missing is this: There is a threshold question whether ICANN 
> is acting as an arm of the US government or not - it's a binary question.
>
> If the answer is "Yes, ICANN is really the US Dept of Commerce in 
> disguise" then the question then becomes one whether the US has the 
> authority and whether they have exercised it properly.  (And there are 
> some pretty solid rules about this, despite the claims of our Sun King 
> Nouvelle.)

The question needs to be settled and then I would agree that perhaps it is 
time to test the solidity of those rules. That needs cojones. (anyone here 
on this list who wants to be lead plaintiff ?)

I also agree that the question is now binary, even though it may not always 
have been so.
Maybe I'm naive, but I believe that the Clinton administration, possibly 
because it did not foresee the speedy growth in importance-for-everything 
of the Internet,  was genuinely interested in devolving things like the 
IANA function out of its own hands and into the hands of an industry-led 
cabal in which it would retain sufficient influence.
It was both in the Administration's and ICANN's interest to leave the 
question of where the buck ultimately stops as unanswered as possible.

Since then we have seen the global internet takeoff combined with the 
emergence and the practicing of a different political philosophy in its 
country of origin.

> If the answer is "No, ICANN is really and truely private then the fact 
> that the US dept of Commerce may be watching and cringing has no effect on 
> the legal case.
>
> This was among the questions asked and points raised by Michael Froomkin 
> in his paper "Wrong Turn In Cyberspace".  And the GAO reviews of DoC and 
> ICANN do not indicate that the DoC has much of a leg to stand on in terms 
> of proper authority.

Expect  the current Administration to be a very interested party when this 
threshold question would come to get settled by the courts.

It is bound to do more than watching and cringing.



-joop-