Most folks who are interested in this stuff have heard about this week's hearings by the US House of Representatives about the proposed ICANN-Verisign settlement contract.
There has been a lot of discussion regarding the presumptive renewal clause.
We should not forget that that clause came out of an earlier contract (one which came before the ICANN board when I still had a seat, and a vote. I voted against it.)
But the main point is this: The US government is not in a strong constitutional position to overturn a provision in a contract between nominally private entities, such as ICANN and Verisign.
So I've been thinking: Is there a way that .com could be taken from Verisign? I believe that it might be possible.
The starting point is this: ICANN has used the legal form known as a contract to convey to Verisign some sort of power over .com.
A general rule of law is that one can not transfer more rights than one possesses. There are, of course, exceptions and extensions - the most important here being that it is permissible to enter into a contract to convey rights which one does not yet have.
So unless ICANN promised under the contract to convey to Verisign some future rights then the most that ICANN has transfered to Verisign is whatever right ICANN itself has over .com.
If ICANN's rights towards .com were in some dependent on certain conditions then Verisign may not be able to defend retention of its rights over .com should those conditions fail.
That is not to say that should those conditions fail that Verisign might not have a claim against ICANN for failure to deliver an unencumbered right over .com. But the remedy under law for that might well be money damages payable by ICANN to Verisign rather than a judicial conveyance of .com back to Verisign.
So, are there reasons to believe that ICANN's position over .com is subject to some conditions? You betcha!
ICANN was not born with a silver-spoon of title to all the TLDs. Quite the contrary, ICANN received its authority over TLDs via some still quite vague mating rituals - called MoUs and purchase orders - between ICANN and various agencies of the US Department of Commerce. (I won't even ask here where the US DoC might find that it has any legal authority over TLDs except to say that it is a long unanswered question.)
And what the US DoC giveth by MoU and purchase order, the US DoC can taketh away.
Now, the IANA purchase order between the DoC and ICANN says nothing about title, ownership, or possession of TLDs - it merely refers to some notion of operational oversight. So if there is any mechanism of conveyance between the US gov't and ICANN it must be found in the NTIA-ICANN MoU.
So, if the US DoC were to not renew ICANN's MoU - which expires this September - then any rights that Verisign might have which are derived from ICANN's MoU would be extinguished at the same instant that ICANN's rights ended.
So, the on-off switch for Verisign's role over .com might well be in the hands of the folks at NTIA.Posted by karl at June 9, 2006 1:02 AM