Re: [icann-eu] Does the ICANN legally exist (this is not a joke)?

[Jeff Williams <jwkckid1@ix.netcom.com>]

Jefsey and all,

Jefsey Morfin wrote:

> Gentlemen,
> I asked a complex legal question to Louis Touton three days ago without
> response yet. I suppose I may now publicly post it on different lists as it
> interests the laws the whole world.

  Don't expect an answer form Louis anytime soon, Jefsey.

>
>
> The question is to lawyers from every country:
>
> "ICANN being a no member corporation, does ICANN exist according the laws
> of your country and if not may a corporation of your country enter into
> legally valid relations with it?"

  As a non-profit corporation I don't believe that in most countries the
fact that ICANN doesn't really have a membership is relevant.

>
>
> I would like to build a table indicating the countries where relations are
> no problem, the countries where relation are not possible (if any) and the
> countries where this is grey area. I will publish that table.
>
> Thank you for your cooperation on this interesting issue.
> Jefsey
>
> PS. Consequences and suggestion
>
> Would even a limited number of countries be unable to legally relate (pay a
> donation, pay a bill, sign a service agreemnt, justify travel expenses to
> attend ICANN meetings, etc...) ICANN should have Members. It would be no
> use to seek legal waivers from the local governements since these waivers
> could be challenged in the USA according to the local standard laws.

  You might also look into trade agreements with these respective countries
as well.

>
>
> I though about the consequences of such an obligation and found that we may
> now (after two years of maturation under the ICANN and after the positions
> taken in MDR) find a very simple and easy solution, fully respecting what
> the ICANN tries to achieve and responding to most of the questions risen
> for a few weeks. It also happens that all the lay people I explained it to
> though it was the existing situation.
>
> This solution :
>
> 1. does not change anything in the ICANN organization
> 2. fully responds to the charter of the ICANN as an international consortium
> 3. insures the unicity and the protection of the root system while
> permitting the dissemination of root servers systems
> 4. fully addresses the ccTLDs demands
> 5. fully addresses the @large concerns
> 6. maintains the same involvement of the GAC, protects the US rights while
> clearly showing the privatization of the Internet is irreversible
> 7. does not require any important review of the bylaws allowing to delay
> them until the end of the @large study, in order to have a global reshape -
> based upon study and experience - towards a stable and string ICANN
>
> It simply consists in accepting that the root is the directory of the ICANN
> Members where cc/gTLDs represent the @large community they serve. What most
> of the people think it does.
>
> This means that the ccTLDs would form the ICANN/GA:

  Why only ccTLD registries?  What about existing gTLD registries?

>
> -  the ICANN would be the organization they desire with as many WG they wish
> -  they would pay a flat yearly Membership fee voted by them through the
> ICANN/GA as part of the ICANN budget
> -  their MDR unanimously voted contract would become the ICANN Membership
> agreement
> -  their MDR Best Practices would be the Member's Charter.
> -  the SSRAC and CRADA would de facto become associated to TLDs as part of
> the ICANN/GA

  Ok, but again what about already existing gTLD registries?

>
> -  the root ownership would this way become common property of its true
> stakeholders and real owners the users.

  Yes it could if existing gTLD registries were included.

>
>
> With the following advantage for stability:
> -  ccTLD management assignment would be protected: reassignment would
> consist in GA voting the exclusion of a Member and accepting a new Member
> with the approaval of its government (if a member of the GAC). A public and
> a decision among peers.

  Too complex and is likely divisive.

>
> -  the private nature of the Internet would be demonstrated
> -  its democratic bottom-up nature would be made plain: ccTLDs legitimacy
> would clearly come from their Local Internet Community and ICANN's
> legitimacy from the ccTLDs, i.e. indirectly from the users.

  Again though, this leaves out existing gTLD registries.

>
> -  there could be several temporary root server systems implemented (one or
> more per area) to provide better root stability under SSRAC control,
> without fear for the root integrity. This would give time to devise a DNS
> upgrade.

  DNS does not need an upgrade, technically speaking to incorporate
other root structures, Jefsey.

>
>
> This also means that:
> -  no other change of any kind would be necessary in the current bylaws and
> SO organization
> -  in accordance to their Best Practice and to heir own benefit the ccTLDs
> would promote the development of their @large community

  Not so unless you include other gTLD registries and root structures
from the beginning.

>
> -  the ccTLDs being involved in every aspects of the ICANN activity and
> forming the ICANN Membership, each SOs representation at the BoD should
> include one ccTLD.
> -  the equilibrium within the BoD between SO's Directors and @large
> Directors would be natural since legitimacy would come from a developped
> @large community (probably made of the free members of the local NICs) and
> would correspond to an "ownership" by the real market which would allow
> better relations with established similar services like Telcos.
> -  there would be no problem at having @large Directors and @large NICs
> Directors directly elected (NICs @large Directors providing a simple and
> open way for good relations with their community and a natural selection
> process towards the election to the BoD of informed and commited persons).
>
> I am no lawyer but it seems that the current agreement with the USG would
> remain quite unaffected and satisfied by a fair, democratic and realistic
> solution. The USG would remain the signatoree of the CRADA and could accept
> other co-signatorees among GAC and ccTLDs, still controlling this way the
> stability of the system.

  This assumption biassed upon your flawed premise cannot work unless
again, other gTLD registries already in operation are also included.

>
>
> I would suggest that the "million" of TLDs explained by the Board to the
> GAC would be competitively registered through the ccTLDs  (the bylaws call
> for such a competition and some ccTLDs could be cheaper than $ 50.000 :-)
> !!! ) .

  The $50k fee that ICANN charged was strictly to boost their budget and
was grossly inappropriate.

>
>
> Individual Domain holders would probably represent the natural backbone of
> the local communities with the ISP should also accepted as a DSO community.
>
> I note that such an approach would accept the present Chinese evolution
> while maintaining the coherence and the political stability of an ICANN
> became the Internet "common house".

Regards,

--
Jeffrey A. Williams
Spokesman INEGroup (Over 112k members strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
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