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    USA Goverment Relations RIR MoU: ICANN's Bid for Independence from the US?
    posted by michael on Wednesday April 10 2002, @07:19AM

    ICANN has finally published its draft agreement with the RIRs "for comment". It's fairly unlikely that anything the public could say would possibly make a difference to this done deal, but there is something deeply troubling here that ought to especially interest the Bush administration. Does Nancy Victory read ICANNWatch? Karen Rose, are you there? ICANN is about to take a big step towards freeing itself from your power, just when there's some danger you might actually want to yank on its chain a bit. Attention Congress: this is where the Bush administration gave up whatever control it had over the guts of the Internet -- the IP numbering system. Corrected.

    No, it's not the money, although you'd be forgiven for finding that aspect of the deal slightly odd. Each RIR pays [Correction: Not "Each RIR pays" - Rather "As a group the RIRs pay"] ICANN about half a million per year. What do the RIRs get? As far as I can tell, for now they get left alone, mostly. Money for old rope from ICANN's viewpoint. And of course when there are new IP numbers to allocate, incumbent RIRs get them and a promise that there won't be any competitors. (Whether that really makes sense from a competition law point of view if/when IPv6 comes on stream we must leave for another day.) But, if ICANN is to be run off the backs of internet users, taxing IP numbers makes as much sense as taxing domain names. And on a per- number basis, it's a pretty small tax.

    No, the devil here is in a different detail: As drafted, this agreement entrenches ICANN into the IP numbering system. For the first time, ICANN proposes to strike a deal with a major set of players and not include a clause making that agreement assignable to any successor to ICANN chosen by the Dept. of Commerce. The US Dept. of Commerce are having their hands tied here, and I'm worried they don't even know it. This ought to be one of the first things Congress asks Commerce about when it holds hearings.

    Here are the lawyer's details:

    Start with section 6.3(f) of the draft RIR agreement. There, ICANN promises that it will "Not transfer any of its rights or authority regarding Numbering Resources to any other organization except in accordance with a Global Addressing Policy." Global Addressing Policies are defined in section 4(b) of the the ASO MOU; basically they are policies agreed by the ASO itself, in consultation with the RIRs. Thus the ASO acquires a veto on what until now was the Department of Commerce's (DoC) clear legal right to terminate ICANN and transfer its functions to a successor of DoC's choice.

    And, in section 11.2, entitled "Successors and Assigns" both ICANN and the RIRs agree that

    This Agreement may not be assigned by any Party without the prior written consent of the others, and any attempted unauthorized assignment will be void. Notwithstanding this prohibition, in the event any Party changes its jurisdiction of incorporation or tax status, this Agreement shall continue in full force and effect.
    Contrast all this with the text and spirit of the ICANN-DoC MoU. That agreement has a clause that protects the US Government in the event that it decides to abandon ICANN and transfer recognition as `NewCo' to another (more fit?) body. Originally this language read:
    5. If DOC withdraws its recognition of ICANN or any successor entity by terminating this Agreement, ICANN agrees that it will assign to DOC any rights that ICANN has in all existing contracts with registries and registrars.
    But DoC and ICANN amended it to read:
    5. If the DOC withdraws its recognition of ICANN or any successor entity by terminating this MOU, ICANN agrees that it will assign to the DOC any rights that ICANN has in all existing contracts with the registries and registrars, including any data escrow agreement(s) between VeriSign and ICANN with respect to the .com, .net, and .org registries.

    You might argue that the draft RIR agreement directly contravenes the above. Regional Internet Registries are, after all, registries. True, they register IP numbers, not domain names, but they are registries nonetheless. RIPE, for example, describes itself as follows: "The RIPE Network Coordination Centre (RIPE NCC) is one of 3 Regional Internet Registries (RIR) which exist in the world today, providing allocation and registration services which support the operation of the Internet globally."

    Or, you could argue, as ICANN surely will, that the context of the language quoted from the ICANN-DoC MoU suggests that the language was meant to apply only to domain name registries, and not to the RIRs. Suppose for the sake of the argument this somewhat dubious claim is correct. Doesn't it violate the spirit of the MoU with the DoC? And doesn't it come at a somewhat suspicious moment: at the very time when ICANN's very fitness is most universally suspect, will the US stand by and watch ICANN remove a good chunk of the US government's leverage over it?

    This agreement has a four year term, renewable, and no provision for passing on the relationship if DoC de-recognizes ICANN. I'm certain that the way in which the RIR contract amounts to a unilateral declaration of independence from the US was not lost on ICANN -- that's why it's willing to give the RIR's so much more autonomy than ICANN offered, say, the ccTLDs. (Indeed, the decentralization aspect of this agreement has much to recommend it; might make a model for other parts of ICANN if the delegations were to bodies less captured and enmeshed in self-dealing than the DNSO.) I'd love to know if the RIR's understood what they were doing -- is this a conscious ploy to start cutting the US out of the roots of the Internet, to shore up ICANN at a time when it actually looks as if there is a small chance the US might pull the plug? Or did the RIRs not know?

    And of course the biggest question is whether the U.S. government will make public or private comments -- or maybe if it can't get the clause changed, consider carefully whether it is wise to renew the MoU, or time to assign it before it's too late.

    P.S. Watch out for ICANN arguing that if DoC fails to assign the rights under the MoU to another body, but merely lets the MoU lapse (or perhaps ICANN fails to agree to a renewal), then all the rights to assign terminate and ICANN ends up holding all the marbles.

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    This discussion has been archived. No new comments can be posted.
    RIR MoU: ICANN's Bid for Independence from the US? | Log in/Create an Account | Top | 9 comments | Search Discussion
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    Re: RIR MoU: ICANN's Bid for Independence from the
    by fnord (groy2kNO@SPAMyahoo.com) on Wednesday April 10 2002, @12:03PM (#5798)
    User #2810 Info
    I bet they're rockin' to Jim Morrison and the Doors...
    They got the names, but we got the numbers
    Gonna win, yeah, we're taking over.
    Too bad the ICANN Cams accessible via the left sidebar don't have audio. -g
    [ Reply to This | Parent ]
    Re: RIR MoU: ICANN's Bid for Independence from the
    by michael (froomkin@lawUNSPAM.tm) on Friday April 12 2002, @03:06AM (#5820)
    User #4 Info | http://www.discourse.net/
    I'm not sure. I think it depends where IP#'s "come from". It isn't clear to me that they "come from" the US government which (I think) is what your comment implies. I thought if they "came from" anywhere it was "IANA" -- but the contract isn't with "IANA", and thus won't follow "IANA" when that function is hived off from "ICANN" next year. At that point the RIR deal will become ICANN's chief revenue source. ICANN will claim that the deal with the RIR's legitmates it as the authoritative source of IP#s. The RIR's will go along, since under this deal they call the shots -- they are entrenched and ensure that there's no danger of competition, and there's no chance they'd get any better deal in any other regime. I don't think at that point the US government will have the guts or international support to dispute this, which is why I think it's now or never.

    Once there are huge numbers of IPv6 numbers to hand out, why not split the IP# block for a given region, give a fraction to each of N registries and let them each figure out their own allocation strategies? Because dirigisme is more comfy than competition?

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