Froomkin Examines ICANN Legitimacy 51
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.
Re:You can't forbid quoting (Score:1)
It is possible to be forbidden from performing an action, by forces other than law. Decency and courtesy, for example. If I find a photo album of you and your mother's dog in compromising sexual positions, I might be legally entitled to publish part of one of the photos. But out of respect for the dog's reputation, my gentlemanliness might forbid it. Law takes a back seat.
draft everything (Score:2)
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.
Re:The Constitution works just fine (Score:2)
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.
Re:Why not make TLD roots peer? (Score:1)
And for the other cases, there are already multiple root name servers, 13 IIRC. And that boxes are definetly no desktop PCs *g*. I remember an article that was published earlier this year, covering the story about upgrading ROOT_A, because the old Sun Enterprise 10000 had problems to serve the about 450 million hits a day.
And thats also the reason why you can't put this information on freenet
Michael
Re:You can't forbid quoting (Score:2)
~luge
The Constitution isn't Internet-enabled (Score:5)
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
The Constitution works just fine (Score:2)
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.
Whinge, whine, miss the point. DNS is dying. (Score:2)
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.
Re:bad link (Score:1)
ICANN can force nobody to use their schemes (Score:3)
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).
Re:pro/con/fook icann (Score:2)
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.
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Articles are Gone (Score:2)
My Question for Froomkin (Score:2)
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.
Anyone can be a root domain server. (Score:1)
Do you know who really gives ICANN its power? Paul Vixie. If He picked a different set of servers to plunk down in the default root cache file in BIND, that's what people would use. US government or no, that file is really where ICANN gets its power over the domain name system from.
Re:Whinge, whine, miss the point. DNS is dying. (Score:2)
I bet you didn't read the article before flaming.
I argue:
ICANN is bad because of the evil precedent it sets for other US government functions to be run by similar entites.
The answer to the DNS problem is ... to decentralize the policy-making and have lots of entities working in parallel to create new TLDs.
Froomkin is here (Score:3)
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. [miami.edu] 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:
Who rules cyberspace? (Score:1)
Eric Lee has written an article on ICANN and others called Who rules cyberspace? [themestream.com], it's written from a labour movement perspecive.
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Epitaths (Score:1)
Not that the guy is dying or anything, but it got me to thinking. I think I'd love to have it said of me, after I'm gone, "He kept closer tabs on (insert large powerful entity here) than (large powerful entity) would have preferred."
-TBHiX-
if ( LARGE_POWERFUL_ENTITY == Cthulu )
{
why_this_is_an_epitath = true;
}
Re:OK, so what do we do about it? (Score:1)
Re:You can't forbid quoting (Score:2)
All Froomkin is asking for is that courtesy.
--
Michael Sims-michael at slashdot.org
No need to be a jerk. (Score:2)
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
From TBTF log... (Score:1)
Cite? That's still quoting right? You little...
(Oh my..., may I quote from you, pleeeeze?)
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Re:I may be really silly... (Score:1)
I don't think anybody here would care finish reading the 171 page Part I document first before posting here... The only except would be: you know this ahead of time, read it, and see the article here.
Hmm... maybe there should be new moderation option: "-1,Did not read article before posting".
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dd if=/dev/random of=~/.ssh/authorized_keys bs=1 count=1024
Re: You can't forbid quoting (Score:3)
What I get when trying http://personal.law. mia mi.edu/~froomkin/articles/icann1.pdf [miami.edu]:
That seems pretty effective to me.
--
Turn on, log in, burn out...
Re:The Constitution isn't Internet-enabled (Score:1)
ARTICLE VI.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; 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.
Treaties get a lot of slack vis-a-vis the Constitution. Mind you, the procedural roadblocks to treaties are quite substantial, such as Senate approval. On the other hand, we have a lot of treaties that have been signed by our President that the Senate never gets around to approving, but the executive branch lives by as a matter of course.
Use Of Government Power (Score:4)
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.
ICANN-ot believe this (Score:1)
I have felt that any form of direct or indirect governmental or paragovernmental control over the Net is wrong, but it's always nice to see this view validated in a new way.
The only guyw who should have say on the nature of the Internet are the guys who wrote the RFC's and the comments thereof.
quoting articles (Score:1)
Go ahead, have at it. In the U.S. anyway it is called "fair use".
Froomkin has since updated the draft, link here... (Score:2)
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 [theregister.co.uk] and here [theregister.co.uk].
* Do try and keep up, YRO :)
Andrew - The Register
Re:pro/con/fook icann (Score:1)
I think we would all just like to see that agenda be one of keeping the internet as free and open a resource as possible, and minimizing infighting. Do you really think ICANN's track record indicates that they can (ha ha) in fact sustain such a goal for us?
Re:Fair use/quoting? (Score:1)
I think this will help.
If that doesn't some it up for you, try nolo.com [nolo.com]'s Fair Use Guide [nolo.com].
Re:You can't forbid quoting (Score:2)
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 [dictionary.com].
I don't want ICANN. (Score:1)
Get OpenSSH and GPG NOW!
"How the Internet is and will be governed" (Score:1)
Anyone remember Napster?
Of course, because it's still around. And why?
Because the Internet is one of the most governmentally resistant entities in history, aside from the Church. So, by analogy, if the Government is a 'vaccine for a virus', then the Internet is Ebola, and the vaccine is as impotent as Al Gore in the playboy Mansion at midnight.
I understand that this
The only fool bigger than the person who knows it all, is the person who argues with him.
OK, so what do we do about it? (Score:3)
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?
Re:The Constitution works just fine (Score:2)
Well, what if the treaty conflicts with the U.S. Constitution? I say that in the U.S. it must be determined null and void by the courts. In other countries, their courts have to rule on the validity of the treaty.
The U.S. government is trying an end run around this process. The Hague Treaty on Jurisdictions and Foreign Judgments (now under consideration by U.S. agencies) is attempting to get people to use the U.S. courts to win judgments against foreigners, then use this treaty to collect from them.
If it applies to "intellectual property" such as trademarks, and to domain names, then the Internet will effectively be governed by U.S. laws (and, even more ominously, the U.S. state in which the case was filed). Or, if it means that U.S. citizens are subject to judgments in foreign courts, then many of us will lose our liberties.
I'd like to see a comment here by Karl Auerbach, the newly elected North American at-large delegate to ICANN, about what he thinks of this process. I believe he will say that if the lawyers and "intellectual property" interests get control of the process, the Internet will lose.
Re:pro/con/fook icann (Score:2)
warning. it's real late, i just got home. forgive me if this makes no sense.
Re:pro/con/fook icann (Score:2)
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
pro/con/fook icann (Score:3)
I may be really silly... (Score:1)
But is ICANN all that powerful? It seems to me, and I may be wrong, but there's only like 6 top level servers for DNS iirc. (Wasn't it Lee, that prevented something or other by requesting 6 people do something?).
That to me is the power. I still don't see why ICANN *HAS* to be *THE* authority. The entire internet is built on chaos. Hell, no one says you have to use BIND in the first place anyway.
Re:"How the Internet is and will be governed" (Score:1)
Because the Internet is one of the most governmentally resistant entities in history, aside from the Church. So, by analogy, if the Government is a 'vaccine for a virus', then the Internet is Ebola, and the vaccine is as impotent as Al Gore in the playboy Mansion at midnight.
I don't think it is. As the paper and many other sources explain there are only a couple major name servers (13?). If the govt really wanted (or multiple govts) they could force all those servers to remove a domain. Currently, the only way I can lose a claim on a domain is if a trademark holder wins an arbitration. It isn't much of a stretch to think that I could lose a domain name for expressing unpopular/"offensive" ideas. It's all a question of what ICANN's arbitration says.
That being said, ISPs take down web/FTP sites all the time for various things - porn, piracy, general offensiveness, etc. This isn't directly related, but it shows the internet is not resistant to people in power making decisions. A cease and desist lawsuit or a criminal charge is very effective in changing the content of the web. A recent US Congress bill would have required ISPs to maintain a list of gambling websites and block them.
A smart alternative to lawsuits is the Mojo idea: locate in the Caymans or the Isle of Man. Since these states make most of their money thumbing their nose at international conventions, a cease and desist order sent to an offshore website means absolutely nothing. The only way these guys can get shut down is by ICANN (Methinks, maybe wrong) so it really does matter what the heck ICANN does.
Re: You can't forbid quoting (Score:1)
Re:I don't want ICANN. (Score:1)
Why not make TLD roots peer? (Score:1)
Re:OK, so what do we do about it? (Score:1)
Re:OK, so what do we do about it? (Score:1)
What Froomkin's opinion of legality means (Score:1)
Legality be darned - why do you think we have warships in Bahrain to be attacked? One of those babies is about one-tenth the size of the Canadian fleet, or one-twentieth the Denmark Navy. And we calve those in such large numbers we don't really know exactly where they all are.
So, in the end, sound and fury, signifying nothing. Unless the entire world is willing to boycott the internet and make its own, it really doesn't matter how we gained the power to create ICANN, it's ours to dispense with as our silly politicians want to.
And it doesn't really matter if it's Al Gore or George Bush - the end result is still going to be the same. Now, Nader, that might be different, but that's why we keep him off the airwaves and the ballots - he might actually do the right thing.
Re:My Question for Froomkin (Score:1)
And my question is, do we trust anyone else to handle it, given all that is happening in China and the UK (examples) with their attempts to control even email?
Democracy is the worst form of government, except for all the other forms.
You can't forbid quoting (Score:2)
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.
unfortunately, it's not so clear (Score:2)
Adobe's online pdf conversion tool: (Score:4)