ICANN Special: New legal hurdles (Part 1)
Exclusive ICANN - the secretive body that controls the Internet's key functions - could look unrecognisable in the future if a host of new and unrelated legal challenges go ahead. We're examining these in two parts, and here's the first.
According to legal expert Michael Froomkin, Professor at University Miami School of Law and author of Reinventing the Government Corporation critics who argue that ICANN was created illegally may be looking in the wrong place. Instead, he argues in a paper to be published imminently, it's ICANN's relationship with the government that is illegal. In other words, aggrieved parties would sue the DoC, not ICANN itself. He outlined his work to The Register.
Here's a summary of his arguments.
Unlike the UK, which has spawned thousands of agencies operating with little or no oversight, the more sophisticated US system bristles with constitutional and case law defenses against extensions of state authority. "ICANN is our first quango - and in the United States we have no place for quangos," says Froomkin.
ICANN is a private company registered under Californian non-profit laws, and was created in response to an invocation by the US Department of Commerce (DoC), rather than by an act of Congress. ICANN carries out a set of contracts between government contractors, or from the DoC to contractors, or among third parties. But if extensions to government authority are judged to encroach on a citizen's constitutional rights, they're still subject to constitutional review. For example, says Froomkin, the Supreme Court decided that the private company Amtrak - which had a federal statutory charter that explicitly denied it was a government agent - was nevertheless judged to be an extension of government power. So it only has to look like a duck, walk like a duck, and quack...
Acting the part
When, and how then will the DoC be judged to have crossed that line that line? Two legal safeguards could be invoked by aggrieved parties.
The first, says Froomkin is the Administrative Procedure Act, a Federal Statute that starts at section 551 of the US code. The APA establishes rights of judicial review against agencies that act on behalf of a state department. Contracts awarded to technical standards-settings bodies that pursue a narrow and clearly defined remit don't typically fall foul of the APA. But the problems start when the agency starts to prescribe social policy. That's when citizens are entitled to judicial review.
"If you want to make a rule; you must publish it," says Froomkin. "You can argue that there are rules without rulemaking, which is prohibited under the Administrative Procedure Act - an act that governs most agencies most of the time". The APA, he points out, applies to all rules - the most significant exceptions being military affairs, contracts and public property. So does that exempt the DoC? That's trickier. Right now it's difficult to gauge whether the DoC is involved in reviewing the rulemaking. "Is the Department of Commerce keeping a review of each decision or not? I'd love to know," asks Froomkin.
If ICANN is merely setting technical standards, it's probably in the clear. But if it's setting social policy -- rulemaking -- then the question is to what extent the DoC is reviewing the procedures. Such decisions need written notice and comments under the terms of the APA.
The second safeguard is that if ICANN does indeed claim that it's independent of the Department of Commerce, then the DoC stands to violate the delegation to private parties doctrine (DPP). This seeks to limit self-dealing and due-process violations by government proxies.
"It's not been used much in Federal Courts since the New Deal; although in State Courts its been used plenty," he says. "Some would say it's fallen into disuse - I don't agree. It could be possible to persuade a court to revive it."
One huge exception for what the US Code describes as public property, loans, grants, benefits, or contracts [our emphasis].
Isn't ICANN looking after public property? Well, it is and it isn't. Network Solutions Inc looks after the root server - and NSI is a private company of course. NSI claims ownership of the .com file and has been busy in recent weeks sending out bills to domain names it doesn't own - but that's by the by.
ICANN is looking after an intangible says Froomkin: "Now in US law, non-tangibles come into four categories: trademark, patent, copyright and trade secret. But the Government can't own the copyright on things it has published - - unlike in the UK - thanks to the 1976 Copyright Act." Recent cases don't give much backing to such an argument. "Control and ownership are not the same thing - especially in the context of the APA," he notes.
The US government watchdog the GAO issued a report in early July which failed to conclude that public property changed hands when ICANN was created.
However the real legal headaches for ICANN may only just be starting. As you can read in Part 2: The California Question, it can anticipate another quite different challange in its own back yard.