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1 Duke L. & Tech. Rev. [1] (2001)

handle is hein.journals/dltr1 and id is 1 raw text is: 




Cite as 2001 Duke L. & Tech. Rev. 0001


2/28/2001


                 AN  INTERVIEW WITH MICHAEL FROOMKIN


11      A. Michael Froomkin1 is an Administrative Law and Internet Law scholar from the
University of Miami School of Law and a vigorous critic of the Internet Corporation for
Assigned Names  and Numbers (ICANN).  He is the author of a controversial new law review
article, Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the
Constitution, 50 DUKE L.J. 17 (Oct. 2000), available at http://www.law.duke.edu/journals/dlj/.
In his new article, Professor Froomkin argues that ICANN's relationship with the Department of
Commerce  is illegal. We interviewed Professor Froomkin via e-mail about his new article and
about other recent ICANN-related events, such as ICANN's plan to assign new generic top-level
domains (gTLDs).2




912     Professor Froomkin, you argue in your article, Wrong Turn in Cyberspace, that
ICANN's  relationship with the Department of Commerce is either unconstitutional or in
violation of federal statutes. Can you briefly explain for us why you say that?

13      Hey, unfair question! The article took 168 pages for a reason. ;>

14      To vastly oversimplify, the argument is:

15      1. ICANN  is not just a standards organization. It makes social policy, e.g., the UDRP
[the Uniform Dispute Resolution Policy, under which trademark owners who claim another
party's domain name registration is improper can force the domain name owner into arbitration].

16      2. As such, it is either a state actor or private. If it is a state actor, then the Department
of Commerce  may not use it to avoid the rulemaking requirements of the APA [the
Administrative Procedures Act, which sets out procedures that all administrative agencies must
follow]. If it is private, then the Department of Commerce's delegation of policymaking powers
to a private group is too broad here to be constitutional, violating the doctrine in Carter Coal
(and re-stated in more recent Texas Supreme Court cases) that limits the giving of public power
to private groups-primarily on due process grounds.


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