COMMERCE DEPARTMENT FORMATION OF ICANN SEEN AS ILLEGAL END RUN AROUND THE ADMINISTRATIVE PROCEDURES ACT AND THE UNITED STATES CONSTITUTION MICHAEL FROOMKIN'S FINDINGS TO BE PUBLISHED IN DUKE LAW JOURNAL - LAWRENCE LESSIG LAUDS FROOMKIN'S CREATION OF FRAMEWORK THAT COULD FORCE REFORM

Since the Internet is decentralized and controlled at the edge, the only tool offering the hope of affecting control of the entire Internet has been the DNS. Without a fully functional DNS the Internet is unusable. Control of the DNS hierarchy starts with control single global root relied upon by the 13 global root servers to enable users to get to the globally unique destinations they wish to reach. Control over the sole authoritative root is the only thing that in a broadly misunderstood effort to privatize the DNS, that the US government has not yet given to ICANN.

For almost four years the COOK Report has chronicled the unfolding struggle for control of the DNS and the root. A struggle that for the last two years has been focused on ICANN. The rise of ICANN is a story of hideous complexity. Most people without vested interests in ICANN’s success have turned away in dismay as they observe its arbitrary acts, arrogant behavior and Byzantine structure. It leaves the lay person with a gut level sense that something is horribly wrong. But it is difficult for such a person to articulate with clarity precisely what is wrong and why it is wrong. The reason is that until now there has been no road map that identifies with precision what went wrong. At long last, University of Miami law professor Michael Froomkin has provided this road map in a landmark paper: "Wrong Turn in Cyperspace: Using ICANN to Route Around the APA and the Constitution" to be published by the Duke University Law Journal, October 2000, Volume 50, No. 1. The printer is expected to deliver the physical copies themselves before December 1, 2000. The article will be available of the Law Review web pages. The penultimate draft was placed at http://www.law.miami.edu/~froomkin/articles/icann1.pdf on October 16, 2000.

What follows is our attempt to distill the essential chain or arguments in this mammoth 166 page and 711 footnote long paper. We do so because we believe that the question of what happens to ICANN will be possibly the most important legal issue of the new decade. If this ICANN succeeds, there will be others to follow. Therefore we suggest that the determination of ICANN’s fate is a decision that will impact whether we live in a nation state with a legal system accountable to individual citizens or a corporatist state that is run on behalf of the private profits of global corporations. If it is the latter we will find that we have given up the critical philosophical foundation on which our nation was built. That our government exists first and foremost to preserve and protect the rights of each of its citizens.

Instead of holding these rights sacred, our government has taken the example set by Esther Dyson and Mike Roberts in their "leadership" of ICANN to make clear the insidious nature of the attraction of the Clinton WTO mantra of self-regulation for those internet players involved in content and intellectual property. Here self-regulation is self-dealing and constant conflict of interest. Here the purpose of the self-regulation is to avoid government responsibility for the due process rights of the little guy. Self-regulation of the physical network has so far worked adequately. Howver, ICANN’s self-regulation of the DNS on behalf of trademark holders is a self-serving attempt to pretend that conflict of interest can be wished away and that a century or more of American administrative law is no longer meaningful. The administration’s self-regulation propaganda will continue to prevail only if the legal system of the United States begins to enfranchise only corporations and confiscates what used to be rights of citizens.

Froomkin has looked at the creation of ICANN and has carefully crafted an explanation of why the creation of ICANN by the Department of Commerce violates American law. This article will summarize his chain of reasoning. In so doing it will seek to disseminate more widely an articulation of why ICANN’s ascendancy can and should be challenged. We believe that it is very important to use Froomkin’s compelling insights to educate both citizens and the executive and legislative branches of the US government. We need to understand quickly what has happened and why we should "be afraid." Out of such education it is to be hoped that legal or legislative redress may be found.

ICANN is preparing to grant new gTLD franchises to powerful corporate and international agency applications. Once these are in place it is difficult to imagine a successful challenge to what has been done on ICANN’s behalf. Individual and small business users of the internet need to be grateful to Professor Froomkin for his research and to the Duke University Law Review for its publication of this extraordinarily important article.

Editor's Note: This article is based on the draft of September 27, 2000. The article has been under going continuous revision since then. A check of most of our quoted passages shows no significant change between the draft of September 27 and that of October 16, which except for some cross correlation of footnotes to be done by the Duke Law Journal editors is final.]

DoC ICANN Violates Either APA Or the Constitution

Froomkin’s indictment in his opening paragraph is succinct: "The United States government is managing a critical portion of the Internet’s infrastructure in violation of the Administrative Procedures Act (APA) and the Constitution. For almost two years the Internet Corporation for Assigned Names and Numbers (ICANN) has been making domain name policy under contract with the Department of Commerce (DoC). ICANN is formally a private non-profit California corporation created, in response to a summoning by U.S. government officials, to take regulatory actions that the Department of Commerce was unable or unwilling to take directly. If the U.S. government is laundering its policy making through ICANN, it violates the APA; if ICANN is in fact independent, then the federal government’s decision to have ICANN manage a public resource of such importance, and to allow - indeed, require - it to enforce regulatory conditions on users of that resource, violates the non-delegation doctrine of the U.S. Constitution. In either case, the relationship violates basic norms of due process and public policy designed to ensure that federal power is exercised responsibly."

He assumes that the Department of Commerce was serious when, in response to presidential directive in the summer of 1997, it talked about rule making. However when the Green Paper of late January 1998 was poorly received in Europe the Department of Commerce changed its course and authored what became known as the White Paper policy statement in early June 1998. Froomkin correctly characterizes this White Paper policy as: "Abandoning earlier hopes of issuing a substantive rule, which requires statutory authorization and is subject to judicial review, the policy statement instead set out goals that the administration thought could be achieved without rulemaking."

At the end of November of 1998, the Department of Commerce signed a Memorandum of Understanding with ICANN indicating the two would seek to work together to carry out the goals of the White Paper.

Evading Notice, Comment, Due Process and Judicial Review

One of ICANN’s most significant acts has been its imposition of the Uniform Dispute Resolution Policy (UDRP). Froomkin points out that DoC has in some cases covered up what he later shows to be policy making by ICANN as if "they were matters of contract" falling "outside the rulemaking strictures of the Administrative Procedure Act." In other cases he finds that that the DoC treats ICANN as " an arm’s-length private body exercising autonomous choices that could take effect spontaneously, without DoC’s participation or responsibility. DoC has thus made, or acquiesced in ICANN’s making, via research contracts rather than agency adjudication or rulemaking, some of the most important decisions relating to the near-term future of the Internet thus evading notice, comment, due process, and judicial review."

Froomkin suggests that arguments for privatization are often made on grounds of economic efficiency. In this case however "rather than privatizing a revenue-generating function, the government is privatizing a policy-generating function and because the privatization is subject to sufficient strings to make ICANN’s actions fairly chargeable to the government." He correctly points out that not enough is known about the details of how much authority the DoC exerts to enable one to ascertain whether DoC tells ICANN what it must do in deciding matters of policy. If this is the case Froomkin finds that "DoC’s use of ICANN to make rules violates the APA."

There follows a powerful paragraph that deserves quotation in full: "There is substantial evidence, discussed below, that DoC has directly instructed ICANN on policy matters. Furthermore, as ICANN is utterly dependent on DoC for ICANN’s continuing authority, funding, and indeed its reason for being, it would be reasonable to conclude that the corporation is currently so captive that all of ICANN’s decisions can fairly be charged to the government. If so, the DNS has not in fact been privatized at all, even temporarily. At least in cases where ICANN does what DoC tells it, and arguably in all cases, DoC’s use of a private corporation to implement policy decisions represents an end run around the APA and the Constitution. To the extent that DoC launders its policy choices through a catspaw, the public’s right to notice and meaningful comment, to accountable decision-making, to due process, and to protection against arbitrary and capricious policy choices, self-dealing or ex parte proceedings are all attenuated or eliminated; so too is the prospect of any meaningful judicial review. The result is precisely the type of illegitimate agency decision-making that modern administrative law claims to be most anxious to prevent."

Delegation of Public Power to Private Groups Ensures No Accountability

The only logical choice to make if one believes that DoC does not dictate policy decisions to ICANN is that it has decided to allow ICANN to make its own decisions. If this is the case Froomkin finds that DoC "violates an even more fundamental public policy against the arbitrary exercise of public power, the constitutional doctrine prohibiting the delegation of public power to private groups. Most famously expounded in two pre New Deal cases, Carter v. Carter Coal Co. and A.L.A. Schechter Poultry Corp. v. United States, the private non-delegation doctrine focuses on the dangers of arbitrariness, lack of due process, and self-dealing when private parties are given the use unaccountable private body that many feel has already abused its authority in at least small ways and is indisputably capable of abusing it in big ways, and nearly (but, as argued below, not quite) eliminated the possibilities for judicial review of critical decisions regarding the DNS. So far, ICANN appears to be accountable to no one except the DoC itself, a department with a strong vested interest in declaring its DNS ‘privatization’ policy to be a success."

ICANN suffers virtually no constraints in what it does. It is not constrained by the due process, public review and comment procedures designed to ensure the accountability of government administrative agencies. While the actions of corporations are restrained by competitors and shareholders, ICANN has no competitors and because it is non profit, no shareholders. While many non profits have members who can challenge misbehavior, ICANN has gone to great lengths to deny its members the redress that they would normally have available to them under the California public benefits corporation statute by which they are incorporated. While most non profits are restrained in their ability to raise funds, ICANN has turned its DNS registration franchises into sources of substantial income and with ICANN’s recent fund-raising tactic of charging substantial fees for reviewing new top level domain applications, ICANN is getting even more funding.

Froomkin concludes: "The result is a body that to date has been subject to minimal accountability. Only the Department of Commerce (and in one special set of cases NSI or its registry) currently has the power to hold ICANN to account. NSI currently has no incentive to use its limited power and DoC has nothing to complain of so long as ICANN is executing the instructions set out in the White Paper. The accountability gap will get worse if DoC gives full control of the DNS to ICANN."

Froomkin examines in detail the question of whether ICANN is engaged in rule making in carrying out its DNS policy. He finds that " if ICANN is engaged in policy-making, and if DoC is reviewing these decisions, and retains the authority to countermand them, then DoC’s adoption of or approval of ICANN’s regulatory and policy decisions are subject the APA."

"If, on the other hand, ICANN is engaged in policy-making and DoC does not retain the power to countermand ICANN’s decisions, then DoC has delegated rulemaking and policymaking power to ICANN. This probably violates the APA since it was done without a proper rulemaking; regardless of the applicability of the APA, it violates the Due Process Clause and the non-delegation doctrine of the U.S. Constitution, as well as basic public policy norms designed to hold agencies and officials accountable for their use of public power."

Froomkin finds that "since ICANN’s Board and staff operate largely in secret, it is difficult for outsiders to know how much influence the DoC has over ICANN’s decision making. As a result, the statutory and constitutional arguments in this paper are presented in the alternative. The two arguments are very closely related, however, in that both rely on legal doctrines designed to promote accountability and prevent the arbitrary exercise of government power."

The DoC ICANN Defence: Private Party

Froomkin explains how DoC and ICANN defend themselves against his charges: DoC claims that ICANN is a private party operating at arm’s length removal from DoC and that ICANN is a standards setting rather than a policy making body. Government agencies are forced by the Administrative Procedure Act to pay attention to due process concerns designed to see that citizens do not suffer from the arbitrary use of government power. DoC argues that because ICANN is a private corporation it is not bound by the APA.

Froomkin’s rebuttal is vigorous and correct: "In fact, as detailed below, ICANN’s relationship to DoC is nothing like the arm’s length relationship suggested by the private party story. Although ICANN is private, it is no ordinary corporation, and its relationship with DoC is highly unusual. ICANN is totally beholden to DoC for its creation, its initial policies, and especially DoC’s loan of control over the root. This control over the root is the sole basis of ICANN’s relevance, power and financing, and DoC can take it away on 120 days notice. More than anything, ICANN seeks to achieve permanent and perhaps irrevocable control of the root when the current MoU expires. DoC has some control over ICANN through the stick of the MoU, but the real control comes from the carrot. ICANNs ability to retain or expand its control over the root is entirely at DoC’s discretion."

Froomkin explains three reasons why DoC cannot be considered to have an arm’s length relation ship with ICANN. First ICANN does not have the authority to create a new TLD without DoC approval. Neither NSI may change the content of the root without written DoC approval. "Second, DoC’s retention of the power to take control of the root away from ICANN is of enormous significance, as it forces ICANN to be exquisitely conscious of DoC’s requirements. If ICANN fails to meet DoC’s expectations, DoC can choose another body to replace ICANN. All of the relevant agreements provide that if DoC recognizes another entity as ‘NewCo" in ICANN’s place, then the obligations to ICANN in those agreements immediately terminate. "Froomkin continues "ICANN’s only reason for existence, and the sole source of its power over the DNS is that the thirteen root servers treat it as authoritative, and that the government instructed NSI, another contractor, to both defer to ICANN’s policy and to pay it money . The root servers recognize ICANN only because DoC signed an MoU with ICANN and announced that ICANN is the relevant authority. Were the U.S. government to transfer its recognition to another authority, the root servers would be under no more legal obligation to recognize that new authority than they were to recognize ICANN, but their move is all but certain. So long as the root servers recognize ICANN’s authority, ICANN is able to dictate contractual terms to registries and registrars who wish to be included in the legacy root. By dictating terms to registrars, ICANN can also enforce terms on registrants, since ICANN can (and does) require that registrars include standard terms in contracts with registrants."

"Third, DoC and ICANN have a warm and cooperative relationship, although whether that relationship is best characterized as a partnership, master-servant, or self-regulatory body and supervising agency is hard to discern. Whatever the precise nature of the relationship, it certainly is not arm’s-length. In particular, it cannot reasonably be characterized as DoC calling ICANN into being, signing an MoU with it to give it authority, and letting it go off on its own."

Standards Making

Since ICANN is not a private arm’s length entity free to adopt its own policy, Froomkin next explains why Dyson, Roberts and Sims always go to such lengths to claim that ICANN does nothing more than technical coordination. If this were true then ICANN would be only a standards setting body and Froomkin points out that there is substantial legal precedent for the federal government to grant standards setting authority to private corporations. As Froomkin puts it those who defend ICANN say: "ICANN does not do ‘policy’; if there was any policy to be done (DoC is a little vague on this), it was done in the White Paper-a statement of policy. And ICANN most certainly does not do ‘regulation’ or ‘governance’. ICANN is at most implementing the key pieces of the White Paper policy - privatization, Internet stability, increasing competition, bottom-up coordination." He continues: "if it were true that ICANN was limited to "technical coordination" that would rebut the claim of an unconstitutional delegation of power. In fact, as detailed below, the standard setting story ignores reality. While some of what ICANN does can fairly be characterized as standard-setting, key decisions would certainly have been rule making if done directly by DoC, and remain regulatory even when conducted by its proxy [ICANN]."

Avoiding All Accountability

Later in his paper Froomkin finds that "DoC is not the first agency to seek to use the corporate form or to create a private corporation to achieve desired ends. The Government Corporation Control Act (GCCA) is Congresses most comprehensive modern attempt to define when and how federal officials may use private corporations for public purposes." He then notes that corporations by the executive branch ‘to act as an agency’ without specific legal authorization." A page later Froomkin notes that the GAO’s General Counsel in its examination of the FCC’s creation of the Schools and Libraries Corporation and the Rural Heath Care Corporation dismissed the idea that either organization was independent of the FCC by stating that the GCCA "prohibits an agency from creating or causing the creator of a corporation to carry out government programs without explicit statutory authorization." In short one way that ICANN could be created outside the constraints placed by the Government Corporation Control Act was for the DoC to decide to publish the White Paper as a "formally non-binding policy statement." Doing this appeared "to be a successful end-run around the GCCA - which suggests that the GCCA may need amendment." For Froomkin concludes: "By calling for NewCo to form ‘spontaneously’ government officials avoided directly creating the corporation." In doing so they avoided the accountability that the GCCA would have brought to ICANN.

Under a heading called "Structural Failures / self-dealing" and a sub heading of"Time" the Froomkin draft states: "ICANN’s structure taxes time as well as money. The profusion of constituencies, working groups, ad hoc committees and the like means that only those with an enormous amount

of time to devote to ICANN issues can stay abreast of every developing ‘consensus’ policy. In practice, those who can afford to pay someone to represent them - predominantly commercial interests who hire lawyers or delegate managers to be their spokespersons - are able to dominate. Un-organized groups such as users or small businesses must rely on volunteers, and tend to be outnumbered in committee."

On the following page Froomkin adds: "For an entity designed to make rules relating to the Internet, ICANN and its subsidiaries seem oddly dependant on attendance at physical meetings. Because ICANN sees itself as global, its meetings are peripatetic. This policy, which has the advantage of making it more possible for geographically disparate groups to attend the occasional Board meeting also makes consistent participation by those without substantial expense accounts impossible. People who cannot attend meetings of the Board are able to take part in debates in only the most limited and derivative way - the few remote comments read to the meeting are filtered and edited by the readers, as contrasted to attendees who queue for a microphone and can say whatever they like." So much for the public notice and comment rule-making procedures of the APA.

Beware– More ICANNs to Come

"The issue then is whether an attempt to vest power in an agency or a private body is constitutional. In the case of ICANN, there is no statute. Congress at no time determined that the DNS should be privatized, or indeed legislated anything about national DNS policy. Instead, DoC itself chose to delegate the DNS functions to ICANN, relying on its general authority to enter into contracts. ICANN is also a very unusual corporation. There are many government contractors, both profit-making and non-profit. But it is unusual for a nonprofit corporation to be created for the express purpose of taking over a government policy-making function."

"There is a danger, however, that ICANN may not be unique for long. One administration spokesman has already suggested that ICANN should be a model for regulation of other Internet-related issues such as accreditation standards for distance learning, and e-commerce over busness-to-business "closed"networks." [Froomkin cites: DoC General Counsel Andrew Pincus, Remarks at the Meeting of the Bar of the District of Columbia (Apr. 25, 2000); see also Brian Krebs, Regulators Would Do Well To Mimic ICANN - White House (visited Aug. 18, 2000) <htip://www.newsbytes.com/pubNews/00/148011.htm1>] Froomkin continues; "The specter of a series of ICANN clones in the U.S. or in cyberspace should give one pause, because ICANN is a very bad model, one that undermines the process values that motivate both the APA and the due process clause of the Constitution."

Toward the end of his paper Froomkin returns to this theme: "For all of its problems, ICANN commands substantial support, and not all of it from the stakeholders who dominate it. Many believe that the need for some sort of management of the DNS is so pressing that, until they see a viable alternative, ICANN is the only game in town (others, who wish to preserve the status quo as long as possible, may see ICANN as the least bad way of blocking change). To many of the participants in the DNS wars, especially old ICANN hands imbued with the libertarian traditions of the founders of the Intemet, anything that takes power away from government is presumptively, and sometimes irrebuttably, better than a governmental solution."

"These views are mistaken, if only because there is more at stake here than the Internet. Even if ICANN were thought to be a good thing, [seeing it just in the context of] a narrow focus on the Internet ignores the pernicious effect of ICANN on the U.S. government itself and on our democracy for there is a real danger that ICANN will not be a fluke, but will be used a model for additional erosions of responsible government. DoC’s use of ICANN undermines accountability. Every government power must be exercised in accordance with law and with the Constitution. But ICANN is a private non-profit California corporation; unless it is a government actor or advisory committee, neither the APA nor the Constitution apply to it.

The APA and the Constitution apply to DoC, however, and this is where the main violation of law is to be found. Allowing DoC to use ICANN to make non-technical policy decisions violates basic norms of governance and accountability. DoC cannot quasi-privatize the DNS in a manner that allows the US to retain ultimate control of the root zone file but achieve deniability about everything that its agent or delegate does with day to day control. Depending on one’s view of the DoC-ICANN relationship, the violation may be a failure to make a general and prospective rule in conformity with the APA’s procedural requirements, or it may be the delegation of so much control to ICANN that it violates the Carter Coal doctrine [of non-delegation of public functions without congressional authorization] under the guise of technical standard setting." Additionally, the DoC-ICANN alliance is an endrun by the federal executive branch which circumvents the role and oversight of the federal congressional and federal judiciary functions.

ICANN’s Choice of New TLD’s Not a Technical Matter

Given that ICANN has received 47 applications for more than 100 new TLDs ICANN is likely to find that as Froomkin says "there are more technically qualified applicants for new gTLDS than ICANN wishes to create, and ICANN chooses among them based on some idea of the ‘quality’ or ‘usefulness’ of the proposed gTLD, or the extent to which the applicant promises to enact social policies such as privacy or trademark protection, then ICANN will have clearly crossed the line into making social rather than technical policy. It cannot seriously be suggested that choosing whether the world is better served by".banc," ".shop," or ".xxx" is an issue with any "technical" content whatsoever. This is a question of social and political import only, the technical issues are identical whatever a TLD happens to be called. As such, the selection among technically qualified applicants on social merit is an adjudication that DoC cannot delegate to ICANN so long as the DNS remains in DoC’s ultimate control."

Froomkin shows some approaches that might be made toward correcting the travesty of justice that ICANN has become. He concludes: "If the current quasi-privatization of the DNS is illegal, then DoC needs a new policy to deal with the DNS. (Indeed, I am certain that uncertainty as to how to answer the question, "If not ICANN, then what?" is an important part of the reason why opposition to ICANN has yet to reach critical mass.) DoC has at least four options."

Having promised Professor Froomkin that we’d stop here we refer our readers to the concluding pages of his article - available we hope in about 30 days.

Froomkin’s final call is appropriately eloquent. We can only wonder who will hear it? "The ultimate problem with DoC’s reliance on ICANN is not the corporation’s secretiveness, or its decisions, or its fight against accountability. Rather the problem is that DoC’s reliance on ICANN, and endorsement of its activities, undermines basic elements of accountability and due process on which the administrative state is based. By lending ICANN its control over the DNS, DoC created a system in which social policy is made not by due process of law, but by something that begins to resemble government-sponsored extortion."

Lawrence Lessig Comments

In a brief interview on October 17, 2000 Stanford Law School Professor and ex candidate for the ICANN board Larry Lessig complimented Professor Foomkin for having drawn a well argued road map of grounds for legal action against the US Department of Commerce for its actions in creating ICANN. Lessig said that with the legal research solidly done it would now be much easier to convince those opposed to ICANN to unite around a legal challenge that would most likely be class action in form.

Lessig said that he would prefer an ICANN done right, namely one that did only technical coordination and not policy, to a Department of Commerce entity that did make policy subject to what he regards as a cumbersome, bureaucratic and expensive Administrative P rocedure Act. The question of course becomes how to convince ICANN and DoC to change their agenda.. To this end a group ready to bring suit could approach with demands. If the demands were

not met, the group could file suit. One way of obtaining a change in DoC ICANN behavior could be a settlement that is put in place as a condition for dropping the suit. Faced with an unambiguous certainty of up to three years of litigation, the forces behind DoC's and ICANN's position would listen to reason rather than have the suit go forward, or so Lessig hopes.

ICANN Member at Large Elections

On October 11, it was heartening to see Kal Auerbach and Andy Müller-Maguhn win member at Large board seats. Also on October 11 a BWG member wote: "There were 3 different elections:

1) The marginals: Africa & Latin America: Players ride. 130 votes cast in Africa; 1,402 in L.A. In both ICANN nominated candidates got over 80% of the votes.

Note however that the person elected from Africa, although not an ICANN critic at all, is very fair minded and supports the GA's role and the role of individuals. I don't know much about Campos, but his replies on the forms suggest he thinks ICANN is basically ok, not too many new TLDs needed, but UDRP and other reforms are.

2) The rich West: Not happy with ICANN.

N.A. Almost a marginal. Only 3,449 votes cast. Only 32% for ICANN nominated candidates, including lessig. Almost 3/4 voted to repudiate current icann policy if you just count count Simons, Lessig & Auerbach. The anti-icann crowd beat the pro-icann crowd. Auerbach and Lessig were ALLIES and cooperated in slating with Simons; together they got 75% of the first choice ballots in N.America.

Europe. A third of the total ballots. Only about 1/4 for ICANN nominated candiates.  Both victors are ICANN critics. Expect fireworks.

3) Asia. The big one: A vote for ICANN status quo. 17,745 votes - more than half the total cast. 95% for ICANN nominess. The winner says "In my opinion, ICANN has interpreted its mission in a cautious but still proper manner. ICANN has a coordination function to perform to ensure the seamless operations of the Internet. In exercising its coordination function, ICANN must take into account the legal and policy impacts of its management decisions, and therefore its scope of mission is not limited to purely technical issues." Thinks the UDRP is at least OK, maybe great.

Winner is resident in DC area! Number one goal listed at http://www.mkatoh.net/FAQ.htm#Goals is: "To make ICANN a 21st Century model for international organizations" See also http://www.mkatoh.net/speech/icann_katoh072000-e.ppt (arguing ICANN should be model for 21st century organizations). More than half the voters are in the Asia/Pacific region. And they picked a DC IP lawyer [who is a japanese citizen and an employee of Fujitsu]."

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Text Box: The October issue of the Law Journal is devoted to the law school’s thirtieth annual symposium on administrative law. This symposium was dedicated to understanding the issues presented by ICANN. In addition to the Froomkin article it contains an Introduction by Professor James Boyle of Duke University School of Law and a second article "ICANN and the Problem of Legitimacy by Professor Jonathan Weinberg of Wayne State University. When we asked Professor Weinberg for a very brief summary of his article he responded: "The article examines three ways in which ICANN has sought to establish its own legitimacy. It concludes that neither ICANN’s adoption of the trappings of an administrative agency, nor its adoption of structures that make it resemble a representative (that is to say, elective) government body, nor its invocation of "Internet consensus," are successful in supplying legitimacy."