[CCWG-ACCT] latest letter from Cruz et al FYI

[David Post]

At 02:58 AM 5/22/2016, Andrew Sullivan wrote:
>On Sat, May 21, 2016 at 11:13:38PM +0000, Phil Corwin wrote:
> > Indeed, there is no definitive determination as to whether 
> property is involved.
>
>What is never clear to me in these discussions is what property people
>think there _could_ be.  I don't mean this to be a rhetorical
>question.
>
>Let me put it another way: suppose there were property there for the
>US Government to hold, and they decided to hold it and refuse to let
>people in the world use it.  What is it that people think would go away?
>SNIP

First off, I'm one of those who does NOT think the root zone, or 
anything else the US government is 'disposing' of here, is 
"property."  Property doesn't describe a thing, it describes a legal 
relationship between people and things; a clump of earth, or an idea, 
isn't "property" unless and until the law says that someone can take 
"ownership" of it.  Other than the physical machines running the zone 
files, there's nothing here that qualifies as property in that sense, 
nothing that the USG can plausibly be said to 'own' - imho.

But, to answer your question:  suppose the USG decides otherwise, and 
says "this is property, and we're not going to dispose of it at this 
time."  You shouldn't assume that the USG will "refuse to let people 
in the world use it" - I think a much more likely scenario is that 
the USG does what it has been doing up to now, which is to contract 
for the service of making it available to the world.  I think you're 
suggesting that by deeming it "property," the USG will go after ICANN 
and others and say:  Stop using our "property."  But it doesn't have 
to do that - it can just go back to the status quo, where it bids out 
a contract for these services.  The current contract holders could 
get that, via extension - or USG could reprocure it from some other party.

What "goes away" in that scenario is the only thing that has ever 
been on the table in the first place:  USG's "endorsement" of ICANN 
and the whole IANA superstructure as the authoritative source of 
names, numbers, and protocols.  That was incredibly valuable and 
important in 1998 - not sure how it would play out today.
David


*******************************
David G. Post
Volokh Conspiracy Blog http://www.washingtonpost.com/people/david-post
Book (ISO Jefferson's Moose)  http://tinyurl.com/c327w2n
Music https://soundcloud.com/davidpost-1/sets
Publications & Misc. http://www.ssrn.com/author=537   http://www.davidpost.com
*******************************  
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20160522/d5a9bc19/attachment-0001.html>