nettime on Tue, 29 Jun 1999 11:24:09 +0200 (CEST) |
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ronda@umcc.ais.org: Quasi-gov Illegal nature of ICANN |
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - <nettime-l-temp@material.net> is the temporary home of the nettime-l list while desk.nl rebuilds its list-serving machine. please continue to send messages to <nettime-l@desk.nl> and your commands to <majordomo@desk.nl>. nettime-l-temp should be active for approximately 2 weeks (11-28 Jun 99). - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Date: Mon, 28 Jun 1999 18:35:44 -0400 (EDT) From: ronda@umcc.ais.org (Ronda Hauben) To: nettime@basis.Desk.nl Subject: Quasi-gov Illegal nature of ICANN Following is an exchange from the IFWP list about the fact that ICANN is being created by the U.S. government in violation of laws in the U.S. that prevents the Executive Branch of government from setting up private corporations as it claims it is doing with ICANN. MF>"Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu> writes: RH> Ronda Hauben wrote: ICANN is illegal and the U.S. government's effort to create ICANN is unconstitutional. Is the Government Corporate Control Act (GCCA) online? If so where? I will take a look at your article when I get the chance, but have you looked at the opinion issued on the illegality of the FCC schools and libraries corporation? MF> You will note there that most of the corporations the GCCA aimed to squash MF> were formed by US government employees and owned in whole or part by the MF> USG. ICANN is different: no USG employees formed it, and the USG owns none Postel, whose name the early formation of ICANN was being done under was a U.S. government contractor when ICANN was incorporated and essentially it was in his name that the bylaws etc were supposedly all done. The GAO (Government Accounting Office) ruled in an opinion (which I can supply for those interested) that the Schools and Libraries Corporation that the FCC tried to create wasn't legal. Yet this is not the kind of example Fromkin gives. The fact that the U.S. government is creating a so called private corporation to do government activity means that the people involved in ICANN become government functionaries, as they are acting under the color of the law guiding what U.S. government entities have to do. Fromkin is turning the law on its head, claiming that if someone isn't a U.S. government employee it is ok for the the U.S. government to create a corporation for him to do public business as a private entity. But that isn't ok. That is a violation of the law. The point of the law is not the employee status of the person who incorporates though that will have some bearing on trying to figure out what is going on, but it is if the corporation is being created as a private entity to do the public's business. That is the essence of the letter of the law that has to be examined and that is the essence of how ICANN is in violation of the law. Also the U.S. Dept of Commerce treatment of my proposal submitted before ICANN was given the U.S. government contract shows how ICANN is in fact a creature of the U.S. government. My proposal wasn't even considered despite the fact that it deals with the problem of protecting the Internet Names and Numbers and protocols in a way that ICANN fails to do, but the claim was that my proposal didn't match the dictate of the U.S. government design. My proposal is online at http://www.columbia.edu/~rh120/other/dns_proposal.txt For the U.S. government to design ICANN as a so called private entity is the violation of the law, according to the discussion of the law in the GAO opinion relating to the illegality of the FCC's creation of a Schools and Libraries Corporation. But more seriously, the U.S. government has a responsibity to deal with the standards of the Internet. It cannot farm that out to some private sector concocted facade. The Internet is too important to the U.S. and others around the world for the U.S. government to be trying to evade its obligations under the constitution to be responsible for social welfare of its population. The problem of how to protect the Internet names and numbers and protocols from power grabs by corporate or national or international entities is a problem that requires considered treatment. The issue is how to provide an appropriate institutional entity to deal with the Internet names and numbers and protocols and other standards. That was the problem my proposal took up. That is *not* the problem that ICANN takes up. ICANN is only being created with built in conflicts of interest to figure out how to share up the loot between the most powerful contenders. Playing games of violating the Government Corporate Control Act with claims that Postel didn't work for the U.S. government or that the U.S. government isn't funding ICANN are only further evasions of the fact. ICANN has announced it will fund itself by taxing all Internet users. The U.S. government is responsible for this as it has no authority to give ICANN the Internet names or numbers or protocols. Thus the deeper in the U.S. government and ICANN get the more of a mess they will be making of the Internet. The point is to figure out what is needed to protect the proper functioning of the DNS, IP numbers and protocols, and that isn't ICANN. Also what is needed to make it possible to scale the Internet. That isn't to create some bogus domain name councils, to try to disenfranchise all users of the Internet who are the real stakeholders. MF> However, the USG appears to have urged that it be formed, and MF>provides its main support with a critical contract (although significant The USG did more than urge that ICANN be formed. It provided the blueprint to be followed. This is forming ICANN regardless of the figureheads it gets to sit on its board. MF>funding comes from outside the USG, via donations). So ICANN is probably That is not true. The U.S. government claims it is giving ICANN billions of dollars of public and cooperative resources in planning to turn over to ICANN controlling functions of the Internet. The so called companies making donations are making it to an illegal entity and are only making investments for the windfall they expect to reap from getting the contracts that ICANN will bestow on them. (Haven't some already benefitted in this way.) ICANN has no basis in law to be giving out contracts potentially worth millions or even billions of dollars. ICANN is incorporated under laws treating it as a charity. This biggest giveaway in U.S. government history to a supposed charity is creating a new low in U.S. government unconstitutional activity. ICANN has no basis to be overseeing government functions or taking them on. Yet that is what is happening. There is a constitution in the U.S. that provides what the government has the authority to do. ICANN is the effort of the U.S. Executive Branch to annul the Constitution. The U.S. government is *not* allowed to give away functions of government to private corporations. It can't give away the right to tax U.S. citizens, though I realize it is trying to bestow that privileges on its corporate friends. The U.S. government has *no* constitutional or legal authority to create ICANN nor to give it ownership nor control over the essential functions of the Internet. This would be illegal under the anti trust act if any corporation came by such legitimately, and is doubly illegal for the U.S. govenrment to try to create such a corporation. MF>in technical compliance with the letter of the GCCA, even 31 U.S.C. sec MF>9102 (although that's the closest call). Whether it complies with the MF>spirit of that act is another question. There is no technical compliance or you would have stated the basis here and were not able to. Ronda