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Disappointed domain-name registrants, take note: You have an advocate in cyberspace. Law professor Michael Froomkin of the University of Miami says the Internet Corporation for Assigned Names and Numbers (ICANN) and its government parent, the Department of Commerce, may be vulnerable to legal attack. When the nonprofit ICANN — whose original purpose was to oversee the technical coordination of the domain-name system — writes rules for resolving disputes over domain names or establishes new top-level domains, Froomkin says, it is acting as an illegally sanctioned, unelected lawmaker. This may be grounds for class actions that could ultimately change the way ICANN coordinates the management of the Internet, says Froomkin, who helps run the ICANNWatch Web site and teaches Internet law. “I envision class actions by those who believe their property rights in their domains have been violated,” says Froomkin, who plans to publish a draft of his position on his Web site shortly. To domain-name registrants and others looking for a chance to fight ICANN, this may come as good news. David G. Post of Temple University Law School in Philadelphia, an ICANNWatch principal, says a class action would force the Department of Commerce to respond and clarify ICANN’s role. Post and others point out that when Commerce created ICANN in 1998, it was unclear whether the government delegated policy-making functions to the California nonprofit. If it did, the organization may be unconstitutional, because only elected legislators can make laws. If it didn’t, then ICANN’s rules should be subject to the federal Administrative Procedures Act, which mandates open meetings, published decisions and other hallmarks of democracy, most of which ICANN, as a nonprofit organization, lacks. Though ICANN, whose representatives did not respond to a request for comment, claims its “authority” is nothing more than a reflection of Internet community members’ willingness to use ICANN as a vehicle for developing consensus, others beg to differ. “ICANN is not just any old California nonprofit,” Post says. “Does it simply set standards, or does it also govern and make laws?” The debate continues, though the government’s establishment of the Internet agency recently got a thumbs-up in a July 7 report from congressional investigators at the General Accounting Office. “Our view is that the GAO has looked into this and found everything we did is fully in compliance with the law,” says Department of Commerce spokesman Arthur Brodsky. Froomkin retorts that the GAO’s report examined only the establishment of ICANN, not what the organization has done since. “The truly interesting issues start after ICANN’s formation,” he says. At least one candidate for a North American seat on ICANN’s board of directors agrees with Froomkin’s position. Internet guru Karl Auerbach is highly critical of what he calls “the shell game” played by officials at the Department of Commerce and at ICANN when anyone tries to pin down authority for transferring the power of a federal agency to a private nonprofit. Auerbach, a California lawyer who currently heads Cisco System’s advanced Internet architecture group, says if he wins a seat on the board of directors he will try to force ICANN to follow its charter promise to be open, transparent and accountable. “Right now it’s none of those,” he says. “It’s arrogant and condescending.” He says that if he is elected to ICANN’s board, “I’ll be the wild-eyed troublemaker digging through corporate materials to find out what really goes on.” Copyright(c) 2000 The Industry Standard

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