July 30, 2006


There's been a lot of noise recently about NTIA and ICANN.  In particularly there has been a lot of noise that NTIA might somehow cast ICANN free but that NTIA, and thus the US, would retain ultimate control of the DNS root zone.

What, exactly might that mean?

ICANN was, like all other private corporations, born only with what its incorporators (Jones Day) put into it, which in ICANN's case wasn't much worth mentioning.

So, where did ICANN get its authority over "the IANA function" and the various top level domains and the IP address space?

And from where did ICANN get the L-root server and what was the legal vehicle used to perform the transfer?

ICANN has various relationships with the US government.  One of these is via ICANN's "MoU" with NTIA.  Another is that ICANN is the contractor that is tasked to perform, at no cost, on a government procurement for "the IANA function".

Recently NTIA has asked about the possibility of moving that IANA function to another contractor.  I asked NTIA via e-mail whether that included the L-root server.  They replied, via e-mail, that it does not.

So let's take it that the procurement for the IANA function does not involve the L-root server.

That must mean that ICANN derives the L-root server via the MoU.  Trouble is, the MoU says nothing about the L-root server.

NTIA, Jones Day, and ICANN have over the years created a legal mess - a sloppy, tangled spaghetti of vague legal verbage scattered over several written agreements and who knows how many oral ones.  And all of this is covered with a rich sauce made from a complete disregard of the question whether or not NTIA has the legal authority to even be in the ICANN-making kitchen at all.

Somewhere in that mess is the L-root server.  Or perhaps it isn't in that mess - perhaps it was one of those things that slipped by, or maybe it went as an oversight, or perhaps it was an overt usurpation.

And is it not a clear and direct conflict-of-interest should ICANN be in the business of overseeing the behavior or root server operators when it is one of them itself?

Whatever the reason, it leaves the L-root server an orphan in this dance of mutual attraction and revulsion that ICANN and NTIA have been doing for so many years.

So, if NTIA "releases" ICANN then what happens to the L-root server?  Does it remain with ICANN.  If so, on what legal grounds is that permissible?  If not, than how is NTIA going to manage this bit of returned GFE (Government Furnished Equipment)?

And, if NTIA removes its hand from ICANN's shoulder, one wonders how long it will be before we see people in various countries begin to ask, perhaps in the form of legal actions, whether ICANN, now that it no longer acts with the color of the US government, is a combination in restraint of trade in violation of their country's laws?

Posted by karl at July 30, 2006 2:13 AM