As the time ticks away on Senator Cruz’s ersatz Doomsday clock, possibly accompanied by the fat sound of Mic Michaeli’s analog synthesiser riff, it is easy to dismiss all his arguments as the ravings of a disappointed Cecil Underwood.

Some in the ICANN community have described Cruz as a skilled orator. This isn’t precisely accurate.

He is certainly a competent orator but his outstanding skill is that he is a brilliant courtroom advocate. That is to say, once armed with a brief, he excels at using every barristerial tactic to advance his cause.

And you need only look at his professional career outside of politics to realise that he has a razor-sharp analytical mind (in relief and stark contrast to the man who outplayed him to take the Republican Presidential nomination).

And, as was demonstrated at the Senate Hearings he called into the transition last week, Senator Cruz is devilishly effective at surgical cross-examination, although, being both centre-forward and referee in this football (soccer) game, it did seem more than a little like he was fishing for trout in a barrel with a twelve bore.

Like all honourable witnesses, faced with cross-examination, Göran Marby was open and honest, and when asked if ICANN is bound by the First Amendment answered directly and apothegmatically.

Unfortunately Senator Coons, the ranking Democrat didn’t really shine in his role as opposing counsel, so we are left with the one-sided abiding view that Senator Cruz wanted to produce, and which is now being retweeted ad nauseam.

Never mind the fact that ICANN, as a private sector organisation has never been subject to the First Amendment, and that has never had any obligation to respect any of the fundamental rights such as free expression, fair hearing, right to property (including intellectual property) among others, Senator Cruz, as stage-manager of this particular piece of theatre the other day, easily managed to highlight this in a way to suit his own agenda.

Many in ICANN have, in the past, been worried that adopting a written commitment to fundamental rights such as free expression may lead ICANN to be obliged to interfere in how domain names are managed by registries (and by ccTLD managers in particular). Such a fear would appear to be completely unfounded, and displays a lack of awareness of the relationship between ccTLDs and ICANN, as well as recent work by the ccTLD community, the GAC and the ICANN Board on interpretation of pre-ICANN policy.

Further work is afoot within the ICANN community to produce a future direction for ICANN on fundamental rights.

But ICANN’s lack of a binding, public, commitment to fundamental rights—such as are embodied in the First Amendment, for example—at the time the transition was scheduled for does seem to be an omission; which omission, it appears, might have significantly damaged the chances of the transition succeeding on Oct 1 by giving further ammunition to the opponents of the transition.

We have not long to wait to find out how significantly!

Nigel Roberts FRSA is Director (Technical & Legal) at CI Domain Registry and one of the co-rapporteurs of the CCWG Human Rights sub-group. This article is a personal view only.