ronda@umcc.ais.org: Quasi-gov Illegal nature of ICANN

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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