Dthreennis wrote, on: Sat, 10 Jul 1999 05:44:03 -0700 (PDT):
>Hi Kent
>
>Re your comment to Jon Zittrain:
>
><<ICANN is a corporation, it is not a government. It has, or will
><<have, contractual relationships with other corporations and
><<organizations. Corporations are bound by the law, like all other
><<persons, real or fictitious.
>
><<There are other international corporations that exert significant
><<control over other entities through contracts; we don't speak of
><<their bylaws as a "constitution".
>
>ICANN may be a corporation, but it was created by government,
>endowed with taxpayer resources, and charged to carry out a governmental
>function.
Correction: it was charged to carry out a private function. That's
the whole point.
>At best, ICANN is merely -- and temporarily -- a government =
>contractor assigned the task
>of privatising governmental resources and functions. At worst, it is a =
>thinly disguised government
>agency that has reinvented itself as a "business." Nevertheless, its =
>long-term goal is to someday
>become a private entity carrying out a private function.
It *is* a private entity.
>For so long as it is a government contractor, it functions as the govern=
>ment
>whenever it engages in any action mandated by government which affects =
>the
>constitutional rights of citizens.
> Even its non-mandated actions may ass=
>ume the
>proportions of state action if it exerts monopolistic control over some =
>aspect of life in the manner of
>a government.
>
>As long as it is still a government creation, still carrying out a functi=
>on that
>has not been privatised, its actions are subject to constitutional scruti=
>ny and total
>governmental oversight. So the task of amending its by-laws is, at prese=
>nt, a public, not a private,
>matter.
According to that same reasoning, therefore, amendment of NSI's
bylaws by NSI is a public, not a private, matter. Boeing is a gigantic
amends its bylaws, it's a public matter -- Boeing is a gigantic
corporation, with big big defense contracts with the USG, and it's
inconceivable that its contracts don't have *some* potential effect
on the constitutional rights of citizens. In fact, carried to its
absurd conclusion, every defense contractor would be required to
subject bylaw changes to public scrutiny -- there is no way of
knowing what change might or might not impact "constitutional rights"...
That is, you are simply incorrect. *No* contractor is required to
make its bylaw changes a public matter, just because it has a
contract with the government. It is conceivable that a contractor
might sign a contract with the USG that required its bylaws to be
public processes, but I have never heard of that being done, and
ICANN has not done this. Instead, the MoU speaks of a "joint DNS
project" where the USG and ICANN will jointly develop policy-making
procedures. Either party could drop out of that MoU without penalty
-- such a breakdown would mean the end of the project, which in fact
neither party wants.
>It is too bad the Board keeps falling into thinking that it is a private =
>company already, and
>therefore free to do whatever it wishes.
In fact, ICANN *is* at this very moment a private corp, and it can
indeed do what it wishes -- as a private corporation it can do
anything it damn well pleases, within the constraints of the law, the
contracts it has actually signed, and what it can talk people into.
The directors could throw away the bylaws and start again from
scratch. They could drop the MoU with the USG and go into the real
estate business.
But in fact what they will do is continue the joint DNS project with
the USG to come up with a sound policy-making process for DNS.
There is nothing written in the MoU, though, that says that the
current bylaws are gospel or a "constitution", or anything.
--
Kent Crispin "Do good, and you'll be
[EMAIL PROTECTED] lonesome." -- Mark Twain
