[NA-Discuss] Foreign Policy and the Internet

[Eric Brunner-Williams]

Hi Glenn,

This is the continuation of the note I sent the na-discuss list
yesterday. As a reminder, I'm running for the North American RALO ALAC
Rep, not writer for Foreign Policy, so I'm going to skip over the low
hanging fruit like whether the ITU is an obscure UN agency and so forth.

The fundamental issue for the contractor (ICANN) exercising delegated
rule making authority from the DoC/NTIA (Froomkin theory) or as a sui
generis public-private multi-stakeholder actor (Simms theory) are not
identical.  No court has decided which theory, Professor Froomkin's,
or Outside Counsel Simms's, is correct, so one needs to consider both.

If ICANN exercises delegated rule making authority, then ICANN needs
to advise the DoC/NTIA on what issues raised by third party
governments present no technical or administrative challenges to the
current operational practice.  This may, as advice must, in theory, be
inconsistent with the government's current position of record as it
enters discussion with other governments.

If ICANN is sui generis -- and Mr. Simms' theory appears to have been
holed below the waterline earlier this year when the government held
competitive bidding through the GSA for the IANA Function, not once,
but twice -- then it need not, in theory, advise the government on
issues which do not have operational or contractual consequences. It
may decline to offer advice which may be inconsistent with the
government's current position.

This then, whether or not to attempt to form advice which may be not a
mere echo or paraphrase of the government's current position, is a
"choice of theory of ICANN" question.