[wg-c] ICANN as a private entity (was:Eureka?)

[Joop Teernstra <terastra@terabytz.co.nz>]

At 07:22 AM 8/08/1999 -0700, Kent Crispin wrote:
>On Sun, Aug 08, 1999 at 10:37:08PM +1200, Joop Teernstra wrote:

>> 
>> There is no need to come up with bad analogies here.
>
>Yes, I agree.
>
>What I said was fact, not analogy. 

I meant: There is no need *for me* to come up with bad analogies. I was
briefly tempted.

>This discussion is on the
>fundamental legal basis for ICANN, the basic legal environment in 
>which it exists.  It is a *private* corporation with contracts with 
>other entities.  From a legal point of view Tony has described it 
>precisely.  Once again, this is not analogy, it is simple fact.
>
>> 1. ICANN is not your garden-variety private entity. It is under obligations
>> to be as public as possible.
>
>Nonetheless, it is a *private* entity.  It is not a part of any 
>government.  Those obligations, from a structural legal point of 
>view, are the same as for a non-profit corporation with a government 
>grant to study amphibians in ephemeral streams.
>
You are arguing like what is called down-under a "bush-lawyer".  
I understand your specialty is network-security. In other words, you are
paid to think like a detective. To think bad hacker thoughts.
Now you are way off base.
Talking about "structural legal point of view" , whatever that is, brings
you on the terrain of people who have been taught *why* there are legal
structures.

>> 2. ICANN sits at the apex of a hierarchy pyramid controlling a set of
>> singular chokepoints of the Internet. Under such circumstances imposing
>> contract terms=governance.
>
>Yes, it is a monopoly.  I said that.  From that perspective,
>Microsoft engages in governance, through contract terms it imposes on
>its distributors.
>
Nobody has handed Microsoft it's monopoly power on a platter, under an MoU
with a Branch of the US Administration.
Now it's you coming up with the bad analogies. 

>> 3. Only a properly constituted ICANN with all it's elected directors in
>> place could take decisions of such import.
>
>Nonsense.  ICANN could take such decisions immediately.  From a
>practical point of view it might be counterproductive to do so, but
>from a legal point of view it is perfectly free to make any decisions
>it likes.  This is true whether there are elected directors or not.
>
Nonsense? What do you mean then by your "practical" point of view?

>> 4. If ICANN would do such a thing against the wishes of the majority of the
>> stakeholders, especially if these non-profit entities happened to be
>> operating with a common purpose, ICANN would be found acting in
>> contravention of both the White Paper and the MoU with NTIA.
>
>This does not contradict anything  I said.  Furthermore, the current 
>situation is transitional.  The USG is supposed to be out of it all 
>by Sept 2000, in which case the MoU and the White Paper are no 
>longer legally relevant.  The only legal control the Government will 
>have will be through anti-trust, restraint of trade kinds of things.
>
If that is true, you have just delivered the single most persuasive
argument to undermine the legitimacy of  whatever the ICANN board is
contemplating to do today.

--Joop Teernstra LL.M.--  , bootstrap  of
the Cyberspace Association,
the constituency for Individual Domain Name Owners
http://www.idno.org