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Refer UDRP to Secretary of Commerce
Only the US Congress has the power to write trademark laws for the United States of America.
The proposed UDRP creates new forms of trademark infringement that do not exist in true law. It
thus strips elected representatives of their power to determine social policy, and it deprives
individuals of civil rights and property rights that are actually protected by real law.
It does this by requiring Internet users to contractually agree to this new form of law, as a condition
of gaining access to the Internet. This form of coercion was authorized by the Department of
Commerce when it issued a statement of policy called the 'White Paper.' The White Paper
required ICANN to adopt the practice as a condition of winning its contract to administer the
The Executive Branch is not empowered to expand trademark law beyond the
level set by the Legislative Branch -- but the Department defends its action here by saying it merely
articulated "policy", while the non-governmental entity ICANN actually executes it. By Commerce's
reasoning, there are no limits to any action government might wish to take.
The doctrine of separation of powers in the US Constitution was derived directly from John Locke's
demonstration that vesting executive and legislative power in the same entity deprived citizens of
their property and rights, principally by cutting off appeals to improper government actions.
Although clearly efficient, mingling the two powers in the same source destroys democracy itself.
The Department of Commerce made itself both the Executive and Legislative branches when it
placed this 'policy' requirement on ICANN. It violated its obligation under the Constitution to
execute only the laws passed by Congress. In burdening ICANN with this requirement, it
inaugurated the ICANN era with an antidemocratic legacy, and ensured that ICANN's institutional
notions of democracy would remain weak and unstable.
I urge the ICANN board to reject any motion to vote on the UDRP at this time. Instead, I urge the
board to vote to send the UDRP to the Secretary of Commerce, requesting the Secretary to
undertake a legal review of the document to determine its faithfulness to Congressional