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

[Nigel Roberts]

Among people who really know what the IANA does there is a strong 
rebuttable presumption that property IS involved.

You need to go back not to 2000, but to 1984 and even slightly further 
back to understand.titles

The whole DNS is a single domain. Soi-disant 'top-level' domains are 
delegated from the invisible name ('.)

Those TLDs were delegated under various different sets of condition, 
mostly but perhaps not entirely, set out in various RFCs, until around 
2000 ICANN abandoned them, except where ccTLDs were concerned.

But the key thread running through the RFCs is 'these requirements apply 
recursively throughout the tree'.

It is trite to say that property can be tangible or intangible. In 
England, you can have "intangible" realty, for example, such as 
leasehold land**.

A domain name, such as SEX.COM is property.

Well, the NAME isn't property, but the bundle of rights -- mainly 
contractual in nature -- that are associated with it, certainly is.

It is not a stretch to argue that IF the country-code TLD of .XX is 
property (and I think there's a well-argued academic paper by someone to 
whom we give great respect, that says it is . . .) THEN the root domain 
is also a form of property.

The interesting thing is that ICANN owns nothing and has no powers given 
to it by Authority.

This totally contrasts with organisations such as the UK's Ofcom, which 
we call quangos. ICANN really is unique in this regard. It's a regulator 
that has no formal regulatory powers.

It only does what it does becuase the actors involved treat its rules as 
binding.

This is fascinating, becuase I would say that's pretty similar to large 
parts of the (partly unwritten) British Constitution. That is said to 
trade certainty for flexibilty, which is perhaps not what we want in ICANN.

But that's another rathole we don't want to go down, I suspect, unless 
everyone's so bored with normal work.

_________________________________________________________________________
(** As an aside, for any purists, strictly speaking, even freehold land 
is 'sort of intangible' in the UK, as unlike some US states, such as, I 
vaguely recall, Nevada, title to realty is not alloidal -- the Queen is 
the ultimate owner)

On 23/05/16 08:27, Mueller, Milton L wrote:
>
>> -----Original Message-----
>>
>> Indeed, there is no definitive determination as to whether property is
>> involved.
>
> Incorrect. For people who know what the IANA actually does, there is little doubt about this question. Neither the authoritative root zone file nor the ability to modify it is "government property"  For those who care to listen to reason, the issue is explained here: http://www.internetgovernance.org/2015/09/29/does-the-iana-transition-constitute-a-transfer-of-us-government-property/
>
> I was around and involved in 2000. The 2000 GAO report was commissioned during a highly partisan period in which a certain business interest very much wanted a finding that it was government property and could not be transferred to ICANN. The GAO basically ducked the issue, indicating that it could not support such a finding but in order to keep the Senator who commissioned the report (who was acting on behalf of that business interest) happy, said that it was "inconclusive."
>
> But look at what they _do_ say:
>
> "The Department undertook its domain name system management responsibilities to carry out the President's directive to support efforts to privatize the domain name system. Under these circumstances, neither the Department nor any other federal agency is under an explicit statutory obligation to manage the domain name system including control over the authoritative root server."
>
> "The Department has no specific statutory obligations to manage the domain name system or to control the authoritative root server."
>
> "control over the authoritative root server is not based on any statute or international agreement"
>
> The 1998 modification of the Verisign cooperative agreement in which the US Commerce Department asserted authority over RZF modifications does not assert or in any way suggest that this power is "government property."
>
> Case closed.
>
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