Gordon Cook wrote:
>
> I have seen an assertion the beckwith burr at the CATO insititute in answer
> to a question threatened to turn ICANN into a government contractor to
> render it immune from suit.
I posed that question. I went to the Cato Institute for that
purpose.
> I consider this to be an irrelevant threat for the following reasons.
There are even more fundamental reasons:
-- The NewCo, by definition in the DOC's White Paper, was created in
order to give control over the DNS to a self-regulating entity in
the private sector, not a government instrumentality. If the DOC
asks for immunity for ICANN, it is admitting that the White Paper
has failed;
-- The DOC would, by asking for immunity for ICANN, thereby be
accepting liability for the violations of ICANN. As the avoidance of
such liability may be taken to have been an important motive for the
DOC's promotion of ICANN, the DOC may not now be allowed to escape
liability and at the same time protect ICANN, its creation for the
purpose of avoiding liability itself;
-- The two basic requirements for governmental instrumentality -
government control (i.e. determining price) and government
appointment of the entity's directors - are not met. Therefore the
only immunity claim open to ICANN is that of contractor immunity,
and there is no contract with the government for any services. Thus
there is no case for ancillary sovereign immunity of any kind.
P.S. I have the codes and cases to substantiate these, but you'll
excuse me if I don't cite them. No need to do their research for
them.
