[discuss] Possible approaches to solving "problem no. 1"

[Michel Gauthier]

At 16:25 17/02/2014, John Curran wrote:
>On Feb 16, 2014, at 8:20 PM, Michel Gauthier <mg at telepresse.com> wrote:
>
> > I understand that the USG position is that the root is an US property.
>
>Michel -
>
>  Could you provide a reference please from which you base this position?

The issue is complex. And important.

First we have to remember that Verisign was a "contractor" when ICANN 
was created. Contracts show that ICANN first acted as a 
sub-contractor the time they learn the task. IMHO an important 
bona-fide document is Mike Robert's proposal to the USG, as it tells 
how ICANN considered things. Mike can comment.

Then what we have to remember is that ICANN was NOT contracted the 
root-file management but the root server system, and was allowed to 
provide advises to the NTIA on possible changes. One of the 
disturbing issue is that ICANN is entitled by proposition and 
contract to charge for its legitimate services everyone, including 
foreign governments, except the USG. This is only conceivable if the 
matter being handled is an USG property. Also, the IP transfer 
authorized by the USG was valued to less than $ 10.000. Is that the 
value of the root-file?

 From my archives.

Historically the name space was created by Tymnet under a dedicated 
FCC license that should be find back.
http://archive.computerhistory.org/resources/text/Tymshare/tymshare.tymnet_passport.1982.102638884.pdf
Telenet was the first network to have an FCC license but Telenet was 
X.25 and did not need names.

Deregulation created a confuse situation where ATT and further RBOC 
supported the US Telenet effort in favor of X.25/X.75 at the CCITT. 
The militaro-instrial complex's technology was Unix/IP. The 
acquisition of Tymnet by McDonnell Douglas further to the acquistion 
of Telenet by GTE , the growing influence of datacoms as separate 
from telecoms, and the US position to consider them as a commercial 
service product during the preparation of the Uruguay Round led to 
the situation where the Internet was under the NTIA leadership while 
all the other foreign networks where under the regulation of their 
national FCC equivalent.

When Jon Postel inherited the Tymnet file, and kept firmly to ISO 
3166 (names) only (not being in the business to decide who is a 
country) while the ISO 3166/MA of the time favored an inclusion of 
X.121 (addresses). Tymnet had merged them both (using numeric-names) 
so the gateway with Telenet was OK and the Tymnet required only the 
trick of the dot-root. (this is someting JFC Morfin can better 
explain). Tymnet was aquired by McDD, then BT, then MCI (becoming 
Concert). In the process it downgraded to X.25, while the Internet 
took-off and developped the name space based upon the DNS flexibility.

So, legitimately, the root file,
- as an authoritative file for Class IN (ICANN/NTIA) seems to be an 
US. Gov property, through the FCC origin.
- as an international datacommunication report with a accompanying 
data base (http://intlnet.org/INTLHIST.HTM) used by Tymnet to comply 
with the FCC requirement, the concept belongs to INTLNET. I 
understand that this is the idea which is behind the planned 
HomeRoot/EZOP proposition which seems to gain momentum.

A few documents I gatehered, helped me to better understand the legal 
complexity and its mix with US power and soeverigty.

-  Department of Commerce: Relationship with the Internet Corporation 
for Assigned Names and Numbers. http://www.gao.gov/new.items/og00033r.pdf
-  a journalistic but very informed and pertinent report on it by 
Ronda Hauben. http://www.heise.de/tp/english/inhalt/te/8369/1.html. I 
think it is the most interesting one as its roots to NSF.

Otherwise some legal studies show the complexity of the issue.
http://www.academia.edu/2384627/US_Identity_Security_and_Governance_of_the_Internet
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1310&context=iplj

And obviously PR. Michael Froomkin constitutionality study. 
http://personal.law.miami.edu/~froomkin/articles/icann-main.htm

Professor Froomkin argues that the use of ICANN to regulate in the 
stead of an executive agency violates fundamental values and policies 
designed to ensure democratic control over the use of government 
power, and sets a precedent that risks being expanded into other 
regulatory activities. He argues that DoC's use of ICANN to make 
rules either violates the APA's requirement for notice and comment in 
rulemaking and judicial review, or it violates the Constitution's 
nondelegation doctrine. Professor Froomkin reviews possible 
alternatives to ICANN, and ultimately proposes a decentralized 
structure in which the namespace of the DNS is spread out over a 
transnational group of "policy partners" with DoC.

I suppose that Milton has also comments on this?
M G