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Froomkin Examines ICANN Legitimacy
cygnusx writes: "First saw this in the TBTF blog: an excellent 2-part article on the legal legitimacy of ICANN itself. You can read the (PDF) drafts: part 1 and part 2. The article (being a draft) forbids quoting without permission, but the essential argument is that the U.S. government has acted irresponsibly in exercising federal power, whether ICANN is an independent entity or not. Incidentally, Part 1 contains one of the best for-laymen introductions to the DNS I have read so far." Professor Froomkin is an occasional Slashdot contributor who has kept a closer eye on ICANN than ICANN would have preferred. This is an excellent paper for anyone who cares about how the Internet is and will be governed. Update: 10/13 5:58 PM by michael : Only the first link works; it contains the entire paper.
Please please please, keep this law secret! The last thing we want is to see all DVD's punched with the word "draft". Else, no more screenshot of The Matrix as your desktop background. The MPAA must not know about this legal option.
Near as I can tell (unless I'm misreading this) the Constitution says that treaties override the Constitution and the laws of the states.
AND ALL TREATIES made, or which shall be made under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
But you can forbid quoting in academic journals (i.e., they'll respect the original author's claims.) That is probably what Froomkin (being an academic) is concerned about. Besides, the big thing is not to be mis-quoted: if he changes things in there (since this is a draft) he doesn't want "bad" (read: thing he has changed his mind about) quotes circulating around as fact. Perfectly reasonable.
~luge
IAAL,BIANLY
The Constitution was not designed to handle cases like the Internet. The Internet is a global entity, but invented in the US, and dominated by us as well. It exists on a cooperative basis (the Internet is merely a huge aggregation of computers and gateways running TCP/IP), but numbering and naming do need to be administered centrally, so cooperation isn't replaced by anarchy.
The problem was that it all worked fine when Jon Postel was the benevolent dictator in charge of the system - he was relatively unbiased and had the technical credentials and experience (he was there at the beginning) that were needed to give him credibility. His death left a huge void, in more ways than one. ICANN is a "best effort" by the US government (who paid for this all in the beginning, lest we forget) to replace him with an organization with some degree of legitimacy and credibility - the benevolent dictator model was broken with Jon's loss.
Given all that, ICANN is a reasonable compromise. Other parts of the world get a voice for the first time on Internet governance, numbers are assigned in normal fashion, DNS is still a little screwy but at least NSI doesn't have a total monopoly anymore, and things keep running as always. Do some aspects of ICANN suck? Absolutely. They are way too biased towards business in domian name disputes, Esther Dyson isn't that skilled a leader (to be fair, it was kind of thrust upon her), and the whole organization, being global in scope, is falling victim to "UN-itis" - a whole batch of bureaucrats travel over the globe and eat expensive meals while doing very little.
But overall, before slamming ICANN to the mat, think about the alternatives and if there's really a better solution, short of putting the US government back in charge. Governing a mutant entity like the Internet is a tough job, but someone has to do it. ICANN needs some fixes, but I think they're the best suited to the job. Screw the APA. The only APA that I worry about is the one with Bradshaw and Farooq.
And unfortunately, we don't have the option of putting Postel back in charge - the "Weekend at Bernie's" model of governance just doesn't work in practice.
- -Josh Turiel
-- Josh Turiel
"2. Do not eat iPod Shuffle."
The Consititution defines (or, rather, re-uses) a very flexible mechanism for international problems. It's called "treaties". The relevant governments get together and agree to it, and each nation ratifies the result. In the US, ratification requires 2/3 of the Senate.
I'm sorry. I can't buy into Froomkin's rant that ICANN is Evil because it's not under the control of the US Constitution. Hello? It's the INTERNET. Whatever process they come up with will conflict with some country's Constitution or ideology. That's why they were made independant... so they could function seperately. Duh! Please don't harp on how they're organised. It makes you look like a redneck to us 'Non-US Internet Users'.
He's got some legitimate concerns about the current agenda of ICANN and corporate influence, but I'm all for new TLDs... make hundreds! Use the entire dictionary, in fact! (Better than picking some poxy subset.
Lastly, DNS is fleeting. It is unlikely to survive for more than five to ten years, now. It's incredibly replaceable, not only with parallel DNS systems run by muliple 'authorities', (would make DNS a little more complicated to admin, but with some simple tools...) or you can simply turn your network nameserver into a gateway to Whatever Comes Next(tm), without having to touch any old clients, as long as the names still map to something.
There are numerous possibilities for totally distributed non-unique locator systems. Go talk to the mathematicians about Simulated Annealing, and the cryptologists about identity certificates. Hell, this latest paper on vertex saturation might be quite useful, too.
Finally, we should learn the lesson of centralism. DNS was a centralized point of power. It has been corrupted. So ends the lesson.
Jeremy Lee | Orinoco
RealNames was, of course, an attempt to do this. But handing keywords from a messy standards body to a single corporation with a non-federated protocol is clearly not the answer.
What we need to do is build more robust clients for name resolution that can integrate information from a variety of sources. Clients that take into account individual user's preferences, as well as context (e.g., host names inside web pages should usually refer to the ICANN-administered world).
There must be some policy, hence it will be biased by someone's political agenda. The reason there must be some policy is that sometimes people will disagree about things. If Taco takes the .microsoft TLD, for example, there is another party who might contest it. You might say, "Hey, first come, first served" but that in itself is a policy.
"Politics" isn't just a dirty word that everyone wants to avoid getting entangled with. It is something that must come up in the course of society.
---
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
One said I don't have permission to access that file and the other said file not found. I do hope I get to read it when he's finished.
I have discovered a truly marvelous sig, unfortunately the sig limit is too small to contain i
Why is control of the DNS system and IP allocation a legitimate function of the US Government? Your article makes a case that the DoC can not use ICANN to delegate Internet rule setting. But, if this is not a legitimate role for the US Government, why can't they get out of this business?
Clearly, the government got into the business because they funded the computing experiment that grew to become the public Internet. But it seems to me that the DoC has been trying to get out of the responsibility of oversight for IP allocation and running the root servers. The process of forming ICANN was subject to the usual Federal rulemaking procedures and, while we may not like the result, it seems to have been done in a legal way.
I have discovered a truly marvelous sig, unfortunately the sig limit is too small to contain i
I've been a slashdot reader for quite a while. So no need to do this in the third person. (I wish they'd contacted me before slashdotting our server...I could also have told them the documents had moved.) The current online draft is being checked over to remove a very large number of spelling and formatting errors, and what I hope is a very small number of sourcing errors. A final version should be online some time next week for your quoting pleasure. Meanwhile, all 169 pages of the draft are now in one handy file. I intend to produce an HTML version in due course, but because the law review publishing this uses MS Word, which I don't use often, I have to find an easy way to convert the footnotes in a readable manner. Suggestions welcome.
Of the comments made so far, just two replies:
I have a blog.
It is a courtesy in the academic world not to quote from a work labeled as a draft. The process of peer review often finds significant errors or changes that need to be made in a work prior to final publication, and thus it is better for all concerned that those not be disseminated.
All Froomkin is asking for is that courtesy.
--
Michael Sims-michael at slashdot.org
if somebody puts a label on something saying "It's a draft, don't quote it", it's accepted without question.
That's because it's academic work and the final point of it is to be shared. It's a tradition older than patents and copyrights. The sharing of academic work for the benefit of all has existed in some form or another in recorded history longer than irony, and if we measure by your use of that, it's a healthier tradition as well. Why don't you leave deconstruction to the professionals and get to work on something useful?
-jpowers
-jpowers
What I get when trying http://personal.law. mia mi.edu/~froomkin/articles/icann1.pdf:
That seems pretty effective to me.
--
Turn on, log in, burn out...
The technical decisions have non-technical consequences when the system expands exponentially in relevance, scope, and power. Although ICANN is probably not perceived as being as important as the FCC at this point, the time will come when it is perceived as MORE important than the FCC. Certainly as Froomkin recognizes, a body that is making decisions about people's substantive rights will have come into being and developed ways of handling those decisions without any guidance, delegation or even consideration by Congress.
Rather than nationalize the problems, the tendency has been to try to internationalize them so that the technical nightmare of root getting split is never raised by the need of the rest of the world to not be dominated by the US. Of course, this internationalization is not supervised by our government, or any that I can tell.
A lot worse could happen than the US Government continuing to ignore the situation. There is a reason that the Internet defeated Microsoft's initial business model executed as a closed network. I can't see how anything the government would do that would be more formal would do anything except choke the net in red tape.
The Register covered this more than a month ago. Karl Auerbach also has some interesting comments on the legality of ICANN in US non-profit law. Read them here and here.
* Do try and keep up, YRO :)
Andrew - The Register
"The only good endian is a dead endian"
While technically your use of forbid is accurate, the spirit of the word (and it's synonyms) differs from that somewhat:
Anyway, gentlemanliness varies, so it's less of a forbidding or prohibition and more of a dissuasion.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
OK, so the author asserts ICANN is on shaky ground legally. What can we do about it? Who do we sue? Who do we lean upon?
I'd be thrilled if there were something I could be doing about this, but what?
-- He's fantastic, made of plastic....
that was the point to having prospective TLD owners submit 'intended use' reports. taco couldn't just take over .microsoft, unless the central governing group (which could be made up of ICANN and other TLD controllers) deemed their 'intended use' to be one that kept the internet free and unadulterated. that would keep cybersquatters from buying up all the TLD's as possible, as they'd have to answer to both ICANN and their peers.
:)
warning. it's real late, i just got home. forgive me if this makes no sense.
"I hope I don't make a mistake and manage to remain a virgin." - Britney Spears
if at first you don't succeed, try try again.
.dot :)
the current system obviously doesn't work well. let's try something else. at least my plan would put more control into the end-users hands.
and, taco would get his
"I hope I don't make a mistake and manage to remain a virgin." - Britney Spears
while having a centralized power for assigning names and numbers helps the internet from fragmenting into proprietary networks, i think that we could come up with a better way of running this. i don't want the people running the ICANN to have any political agenda. I just want them to keep things running smoothly. Taco wants his .dot (presumably for slashdot.dot/slash/) so why do we have to wait for these people to approve it? what it think the icann should be doing is giving out TLD's to organizations who apply for them (say Taco were to send in a request for control of ".dot" stating why ".dot" would be a necessary addition, or different than .com or any other TLD's, and what his intended use of the TLD is, who he's going to let use it, etc.) And then, people looking for a domain could then register through the TLD owner (if i wanted dotdotdot.dot, i'd have to go through taco) and all the ICANN's job would be is making sure that people stuck to their intended uses of their TLD's, and read peoples requests for control over TLD's. This way, there'd still be a centralized standard system, but it'd allow for more domains, and less power in the hands of ICANN, who seemingly has a political agenda. it would force a system of checks and balances, which i don't see today.
"I hope I don't make a mistake and manage to remain a virgin." - Britney Spears
The article (being a draft) forbids quoting without permission
That's illegal and a violation of your fair-use rights to quoting for the purpose of criticism. Don't accept it when people give you bad legal advice like that.
-- Anne Marie
Fair use can be waived by contractual agreements. If the person who gets a copy of the copyrighted work signs an NDA or some other contract not to reveal its contents, then fair use is not a valid recourse. The only tricky part is whether by posting the drafts on the web themselves, the authors have waived their rights by committing it to public circulation.
-- Anne Marie
Adobe has an online tool for converting pdf files to html. Just put in the pdfs' URLs, and hurry before they get slashdotted.
-- Anne Marie