[discuss] Some more legal tangles for ICANN

[David Conrad]

Parminder,

On Jun 30, 2014, at 10:11 PM, parminder <parminder at itforchange.net> wrote:
>> Such a change request is obviously outside of policy, thus NTIA should reject it.
> Court order is policy, or higher than it.... 

The policy of which I was speaking was (of course) global consensus policy, the stuff NTIA looks to see if ICANN is following prior to authorizing a request.  In the scenario at issue, ICANN would be ignoring global consensus policy by submitting a request for authorization that (presumably) would NOT have positive acknowledgement of the existing delegatee. According to existing policy, that request should be rejected by NTIA before ever getting to the implementation step.  In order to get around the authorization step, the US District Court would need to amend the court order to compel the US Government to contradict historic foreign and domestic policies. I am skeptical the US Government would not appeal such an order. If nothing else, I would assume I will have long since retired before that particular issue would be resolved.

>>  The root server operators (and others) would then be required to server the new zone. I have some skepticism that all the root server operators (and others) will actually do so.
> You are side stepping here the extremely relevant point that out of the 13 root service operators, 10 are subject to the jurisdiction of the same court, and they will damn well comply and make the changes too - whether it requires another small step of another specific order to them or not. 

Actually, I suspect if the US root server operators were issued a court order to compel them to do something like this, a number would choose to relieve themselves of the burden of running root servers, but that's beside the point.

You seem to be presupposing a "One Ring To Bind Them All" form of court order that has universal power and applicability and is not subject to appeal. As I haven't been following this too closely, the only document I've seen to date has been a demand for records (which I suspect will ultimately be quite disappointing, particularly as no money has ever changed hands for services ICANN has provided for .IR), so it is difficult for me to comment on the content of the court order you appear to assume has been issued.

>> Far more likely in my opinion: a new root authority will be established, the root trust anchor will be updated to reflect that new authority, and the root server operators (and others) will pull the zone from that new authority.
> Neither of the scenario look too good to me.

At least we agree on one thing. It is unfortunately not uncommon for lower courts to not fully understand the issues on which they pass judgements.  Fortunately, there are appeals processes that allow for more focused evaluation of the issues and the judgements. It is indeed possible that, after all appeals are exhausted, there would be a court order that forced the US Government to authorize a .IR redelegation.  However, I would assume that since this would not be a rapid process (to put it mildly), there would be sufficient time for the multistakeholder community to develop alternative mechanisms that would render the decision moot.

>> The core problem here is an assumption of top-down control of the Internet.  Despite the cliche, in reality, authority really does derive from the bottom-up. In this case, authority rests with the resolver operators that configure the trust anchor and/or the root server operators (and others). ICANN, the root management partners, and the vast array of policies, processes, and systems that exist are merely an agreed upon convention that facilitates updating the root zone.
> David, not only are all of these fully subject to law, and in this case, unfairly to the US law, it would be quite unacceptable if they were operating outside any kind of law. 'Bottom down' looks a good anarchic term when it suits a certain status quo, but the facts are as they are. 


I don't recall anyone actually suggesting actions are not subject to law. Rather, I was merely pointing out the fact (as it is) that the derivation of authority for operational decisions related to the Internet is decentralized and found primarily in the myriad end points. Since there is no global law nor mechanism to force compliance globally, the end result is a set of conventions (aka "voluntary standards") individual actors choose to comply with (or not as the case may be). I understand this may not conform with the way you choose to view the Internet.

Regards,
-drc

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