A lot of discussions surrounding WSIS and ICANN focus on the oversight function of the US government. Hans Klein’s recent paper sheds a good light on the different contracts between ICANN and the USG. However, Klein does not discuss how legitimate these contracts are.
Any undergraduate law student knows that one party can only sell, rent or otherwise grant rights to goods and services it personnally owns. So the question is fundamentally: does the US own the Internet ? Surely, the USG owns the US military network, as well as the federal and possibly the academic. But the Internet is a network of networks. Can the USG impose its oversight on networks it does not own ? Based on this hypothesis, the contracts between the DoC and ICANN could only apply to the USG networks. Extending these contracts to any network directly or indirectly connected to the US administration ones would be a gross legal mis-conception, especially outside the US, as US law is not applicable elsewhere in the world.
Saying that the US owns the Internet because it financed part of its development would be like pretending that the EU should have oversight on each and any GSM telephone network in the world because the standards were developed with EU research money, or that the Finnish governement holds a right on every installation of Linux because it was developed by a Finnish student on the Helsinki university computers.
Unfortunately, neither the ICANN board, nor the staff have ever questioned how legitimate these contracts are and if they should not be considered void by design, because the other party has no right to contract on a service it does not own.
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You know, I would almost pay to have the popcorn concession when
smurf cartooneys occupy ICANN offices until the G root server operators take down http://websmurfer.devnull.net/.
> Are you suggesting that various governments would agree to the
> jurisdiction of a United States district court
No. As a general rule, no country is bound by a court decision taken in another country, unless there is a mutual recognition. It is a very difficult issue to solve. This is why ICANN tried to move some cases to international instances, like the International Chamber of Commerce.
Notice however that ICANN now has an office in Brussels, Belgium. Some companies might be tempted to bring cases before Belgian courts instead.
Are you suggesting that various governments would agree to the jurisdiction of a United States district court applying the law of California in any dispute with ICANN?
While I could live with the EU proposal, it looks like overkill in the case of ICANN. I suggested some months ago a sort of GAC+, which is in line with the recent proposal from Tricia Drakes and Michael Palage.
This being said, I stand by my word that the powers of the US DoC should not extent beyond what it is allowed to control. This is actually confirmed by the US General Accounting Office : “It is uncertain whether transferring control would involve the transfer of government property to a private entity.”
My understanding is that you support the EU “compromise” position. Is that correct?
I hope you’re familiar with:
A refutation of Metcalfe’s Law and a better estimate for the value of networks and network interconnections [PDF], A. Odlyzko and B. Tilly.
(And since your blog unfortunately lacks a preview button, so I don’t know whether the a tag will make it through…)
http://www.dtc.umn.edu/~odlyzko/doc/metcalfe.pdf
Dishonesty is a very relative concept. If you could add more substance to your opinion, we might be able to discuss it.
Fluffy owns the ‘net.
Your framing of the agreements between ICANN and the USG as “fundamentally: does the US own the Internet?” strikes me as fundamentally dishonest.
It’s one thing to read a journalist’s casting of a government minister’s generalizations: like the Guardian’s or BBC’s narration of Viviane Reding’s apparent cluelessness. But it’s quite another thing to read to read your comments here.