Re: [Ianaplan] A draft for your review

Brian E Carpenter <> Tue, 02 September 2014 03:35 UTC

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Date: Tue, 02 Sep 2014 15:36:03 +1200
From: Brian E Carpenter <>
Organization: University of Auckland
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Subject: Re: [Ianaplan] A draft for your review
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On 02/09/2014 14:55, Miles Fidelman wrote:
> Brian E Carpenter wrote:
>> On 02/09/2014 03:22, Richard Hill wrote:
>> ...
>>> Yes, but, but thus far there has been a contract between NTIA and
>>> ICANN that clearly had precedence over the ICANN bylaws.
>> IANAL, but I find it very hard to believe that a contract can have
>> precedence over the by-laws of a corporation. At the least it suggests
>> a serious failure of due diligence before signing the contract.
> Since it's the NTIA contract that grants ICANN the authority to perform
> the IANA functions, of course it has precedence.  

Sorry, that's a non sequitur. A corporation surely acts according to its
Articles of Incorporation and its By-Laws, and they (probably intentionally)
make no reference to the US Government or any of its agencies, and certainly
not to the NTIA contract. ICANN will not cease to exist, nor will its
charitable purposes change, when that contract lapses.

There was absolutely no consensus in 1998 that NTIA had any authority to
grant ICANN such authority anyway. At the time, everybody involved managed
to hold their noses because ICANN had to be bootstrapped somehow and
there was nothing to be gained by fighting the White House.

> Now, one might argue
> that the contract is in breach, because ICANN signed a contract that's
> in violation of its by-laws, in which case.... <what?>.  But, just
> because ICANN's bylaws says that it has the authority, doesn't mean it
> does.

True. Which is why the IAB and IETF worked hard to get an MoU signed,
to consolidate the above bootstrap. Personally, I felt that ICANN was
on very shaky ground until 10 March 2000 when its Board ratified
the MoU. Until that moment, the IETF and IAB could have walked away
in a heartbeat. There were off-shore copies of all the existing
IANA allocations just in case.