[At-Large] ICANN75: Mandatory Funded Traveler Registration for Roberto Gaetano

Karl Auerbach karl at cavebear.com
Mon Jul 25 19:59:06 UTC 2022

Wow, that's some "waiver"!   The California lawyer neurons in my head, 
upon reading this thing, are screaming "California Civil Code section 
1670.5!!!!!"  This provision can effectively remove "unconscionable" 
terms from contracts (such as this ICANN "waiver") or even void the 
entire agreement.


There are other similar California provisions, such as 1770(a)(19) 
(which is probably inapplicable because this waiver is not a sale or 
lease to a consumer.)

A couple of indicia of "unconscionable"ness are things like denial of 
damages and limitations on the right to seek court relief, both of which 
are in the ICANN "waiver".  Now, an indicator of unconcionable-ness is 
not the same as being unconscionable.  But such indications are the kind 
of yellow bricks that paved the road that led Dorothy to Oz.  So ICANN 
has, via this overreaching "waiver" has at the least started down the 
road to being subject to these California laws.

I am, of course, presuming (perhaps incorrectly) that this agreement is 
made under, interpreted under, and enforced under the laws of California 
- but the agreement sloppily forgets to mention these rather important 

The waiver, to my highly opinionated and jaded eyes, appears drafted by 
someone who has not yet begun a career in law and who, if they have 
started, is unlikely to finish well.  (More likely perhaps is that this 
is the work of some low level associate has followed the practice of 
medieval Scholastic monks who, when copying manuscripts, copied and 
merged text without actually thinking about the meaning of what they 
were copying and merging - the most famous example being the fable of 
Noah and the Ark where, after ages of copying and merging, there are now 
divergent counts of how many animals of each kind.)

There is an old, and very bad joke:

   An airplane crashes directly onto the border line between California 
and Nevada.  Where are the survivors buried?

The joke is that one does not bury the survivors who, presumably, are 
quite alive.

Well, ICANN's "waiver" makes promises on behalf of parties who do not 
yet exist, like heirs and assigns.  There are much better ways to draft 
an agreement to limit the propagation of obligations and duties to third 
parties.  I was also amused by the sloppy drafting that left "personal 
representatives" and "executors" dangling in a limbo of ambiguity 
between two inconsistent sentences in the "waiver".

And, of course, whenever an agreement uses words like "forever" my mind 
says "remember the rule against perpetuities" - but that's something so 
arcane that probably nobody understands what it means.

I do hope ICANN was not billed by its law firm for the drafting of this 
thing.  And I find it sad that, ICANN, an organization whose legal 
purpose is "to lessen the burdens of government" and that obtains its 
legal existence as a "public benefit" corporation, feels that it must 
protect itself by the Procrustean technique of chopping the rights off 
of those who wish to attend its open and public meetings.


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