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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