Re: State of Nature & the Regulation of TLDs

[Kent Crispin <kent@songbird.com>]

On Sun, Jul 19, 1998 at 11:57:44AM +0100, Jim Dixon wrote:
> On Sat, 18 Jul 1998, Karl Auerbach wrote:
> 
> > We're doing something somewhat unique here -- we are forming an entity
> > which will receive a grant of privilege, amounting to a worldwide monopoly
> > over a global asset from the United States, without any competitive
> > bidding process.
> >
> > I'm just trying to make sure that whatever we do is done with absolutely
> > squeeky clean adherence to lines of authority tracing all the way back to
> > the Constitution.

That could take a long time :-)

> > But aside from issues of anti-trust, it is very clear to me that there
> > will have to be an explicit legislative act to exempt the transfer of the
> > DNS data (the contact records) from the Privacy Act (5 USC 552a).

That may be.  I think Ira & co need to be convinced, if so.  No matter
what, we aren't going to get any special legislation passed without 
their strong support.

Furthermore, it isn't necessary to transfer the contact data.  Here 
how the transfer to nIANA could be done, without ever transfering the 
contact database:

    1) A new registration agreement is developed that covers the
    privacy issues.  All new registrations and re-registrations must 
    abide by this agreement.

    2) a completely separate, new database is started for new 
    registrations and re-registrations.  All entries in this new 
    database must have signed the new registration agreement.  It's a 
    new database, "owned" by nIANA.

    3) NSI is given a two year contract to manage the old database.  
    At the end of the two years all domain registrations will have 
    expired, and all registrants will have re-registered in the new 
    database.

    4) at the end of the two year extension the old database is 
    destroyed. 

Under this plan the old database will *never* be made public; a
completely *new* database will have been created; *no* data will ever 
be transferred from the old database to the new one -- the net effect 
is that everybody just re-registered in a new system.

This is not trivial, technically, and it is an inconvenience for people 
to fill out their contact data again.  But it is certainly doable, 
and it can be done in such a way that there is no realistic issue 
about a database being "transferred".

> Should we conclude that the new corporation cannot be created until
> such an act has been passed?  Or that the new corporation cannot
> assert authority over the .com/net/org contact records until the
> act has been passed?

Clearly not.  Postel's draft bylaws:

    ARTICLE XII: INTENT
     
    These Bylaws are intended to be transitional in nature and to aid
    in the initial governance of the Corporation.  These Bylaws are
    intended to be amended or replaced by the Board within one (1)
    year after their adoption; provided, however, that these Bylaws
    shall remain in full force and effect until such time as they are
    amended or replaced. 

What we really have is an interim corporation, not just an interim
board (I called this a "Transition Trust", in one of the notes I
submitted.)  

> > > Less importantly, but something that nags on me: is there any reason why
> > > California is constantly discussed as the site of incorporation
> >
> > It nags on me as well. And not just the geographic issue.  Indeed, I'm not
> > at all certain that a non-profit corporation is even the way to go.
> > Perhaps something like a for-profit with the shares all owned by a trust
> > with the beneficiaries of the trust being "the community" is better.
> > Perhaps not.  But it should be an open issue, just like the site of
> > incorporation.
> 
> We need to come to a decision on this as soon as possible.

A transition corporation with two explicit functions:  1) take 
control of the current gTLDs; and 2) establish the final 
organization.   We should be able to decide on that in the short time 
we have...

>  There seems
> to be consensus (well, rough consenus ;-) that the incorporation will be
> in the United States.  The preferred form is a corporation with members
> who have the right to appoint and replace directors (board members).  In
> my experience in the UK, such a non-profit is a company limited by
> guarantee.  Is there no US equivalent?
> 
> The site of incorporation should be whatever US state offers the most
> appropriate corporate structure.  The corporation's principal office
> need not be in the same state as the state of incorporation - many
> Wall Street businesses are incorporated in Delaware.

For the transition corporation these are all minor details.  It will 
have only a limited lifetime.

-- 
Kent Crispin, PAB Chair			"No reason to get excited",
kent@songbird.com			the thief he kindly spoke...
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