Well-said, John…… -- It's better to burn out than fade away.
Begin forwarded message: > From: "Dave Farber" <[email protected]> > Subject: [IP] John Gilmore on ICANN. > Date: May 27, 2015 at 7:08:30 PM EDT > To: "ip" <[email protected]> > Reply-To: [email protected] > > I believe this is not an inaccurate description from a historical standpoint. > I also attend to agree with many of the points John takes. > > Dave > > ---------- Forwarded message ---------- > From: "John Gilmore" <[email protected]> > Date: May 27, 2015 6:46 PM > Subject: Re: [IP] How global DNS could survive in the frozen lands outside US > control > To: <[email protected]> > Cc: "ip" <[email protected]> > > ICANN has built itself a nice monopoly, with very little outside > influence or control. Now it wants to reduce that to "zero" outside > influence or control. The community and the US Government should > decline to do so. (PS: The community has little or no say over this.) > > Back when ICANN was formed in 1998, EFF proposed that ICANN's > "nonprofit" corporate charter should include some basic protections > for freedom of speech and press, due process, international human > rights, transparency, and such. See: > > > https://w2.eff.org/Infrastructure/DNS_control/ICANN_IANA_IAHC/19980923_eff_new_iana.bylaws > > https://w2.eff.org/Infrastructure/DNS_control/ICANN_IANA_IAHC/19980924_eff_new_iana_pressrel.html > > "... any foundation for governance of a communications system, such as > the Internet, should stand on the fundamental human right of free > expression. ... What was suppossed to be an excercise in Internet > democracy has become an excercise in Internet oligarchy" - Barry > Steinhardt, EFF President > > and see generally: > > https://w2.eff.org/Infrastructure/DNS_control/ICANN_IANA_IAHC/ > > ICANN's management and lawyers refused to include any such provisions, > on the theory that if they were included, then people could succeed in > suing ICANN if it violated freedom of speech or the press, did things > to domain holders without due process, or was not transparent about > its activities. ICANN management wanted the right to violate those > human rights and public oversight provisions -- and they ultimately > got it. No court can decide whether ICANN's actions violate > international human rights law, because ICANN is not required to > follow international human rights law; it isn't a government and it > never signed those treaties. It isn't required to follow the US Bill > of Rights, because it isn't a government. It isn't required to follow > basic transparency policies like Freedom of Information or Open > Meetings, except to the extent that the US Government currently > requires that under their contract with ICANN. It isn't required to > follow anything but California and US nonprofit law (which it > deliberately violated anyway, see below). Yes, the sole substantive > rules that govern ICANN are the same ones that control the struggling > 2-person environmental group or underfunded health clinic doing a bake > sale in a nearby park. The creation of an unaccountable ICANN was all > handled by ICANN's "unpaid volunteer" lawyer, Joe Sims of the Los > Angeles firm Jones Day, who later, once the gravy train was set up, > started charging ICANN a good chunk for his ongoing advice. As of > 2014, ICANN pays Jones Day almost $4 million annually for legal > services. > > ICANN soon started charging domain registrars a fee of 20c per year > per domain, for doing nothing except protecting itself from outsiders > and paying itself large wages. ICANN sets the amount of this fee > itself, and there is nothing that outsiders, or ICANN's customers, can > do to challenge it or change it. It is currently 18c per transaction, > and raises about $80 million dollars per year, all of which ICANN > finds some way to spend on itself and its lawyers. By 2014 it had > more than 300 employees churning around looking for ways to spend > money on themselves and their contractors. More than 30 of these > "nonprofit" employees make more than $250,000 a year or are "paid > directors", with the CEO wasting $900K/year. It also spent about > $575K of your domain fees lobbying the government on its own behalf > ("a staff registered lobbyist and two government affairs firms"). See > pages 7-9 and 30 and 52-53 of: > > https://www.icann.org/en/system/files/files/fy-2014-form-990-31mar15-en.pdf > > At one point a single outside critic, Karl Auerbach, slipped onto the > ICANN Board of Directors. ICANN is (was?) a California nonprofit, and > the Directors of a nonprofit have responsibility for the acts of the > nonprofit -- and have rights to oversee its acts. They can inspect > the physical premises at any time, and can see and copy any documents > that the business has. Otherwise the theory that the Board is in > control is a hollow mockery, and California law doesn't allow that. > ICANN claimed that its Board members could not actually access basic > information like the financial statements of the organization (how > much money comes in, how much goes out, and for what reasons). Not > only did ICANN management refuse. The rest of the ICANN board, > including Chairman Vint Cerf, refused, and circled the wagons to > protect ICANN from actual transparency. In 2002, EFF helped Karl file > a lawsuit under California law to enforce his rights. ICANN contested > the lawsuit, and Vint filed a declaration with the court in support of > their position. ICANN lost that lawsuit, and Karl got to look at the > financial reports -- but did not get to show the finances of this > "nonprofit" to the public. ICANN immediately revised the procedures > for electing their board, to make sure that no critic would ever get > on the board again. However, they did start being more transparent > about their finances, since these would have to come out in their > publicly available income tax returns anyway. See: > > https://www.eff.org/cases/auerbach-v-icann > > https://www.eff.org/press/releases/icann-director-seeks-court-order-review-records > https://www.icann.org/resources/pages/fiscal-2014-09-15-en > > Fast forward another few years, and ICANN decided to sell new > top-level domains. The bidding process was completely rigged to > ICANN's benefit; bidders sent in a non-refundable $185,000 per > proposed domain and were guaranteed exactly nothing in return. Domain > speculators sent in a frenzy of money, as expected, and ICANN raked in > a one-time profit of $350 million. Some of those domains have gone > live since, and as expected, they have mainly benefited ICANN. > Recently in 2015 ICANN auctioned off ".app" for $25 million, which it > says went into a "designated purpose" fund, which ICANN of course has > sole control over. As with the about $80 million in recurring revenue > from domain registrars and registries, they have struggled mightily > but succeeded in finding ways to waste almost all of these hundreds of > millions on themselves and their buddies. As of 2014, they estimate > that all but $100M has been spent, and that is carefully hoarded in a > "Risk Reserve" for "future costs that cannot be estimated" (up to now, > only $1M in "risk reserve" has been actually spent). In 2014 they > spent or wasted $17M with Ernst & Young, $16M with KPMG, $8M with "JAS > Global Advisors", $4M with Interconnect Communications, $2.8M with > Price Waterhouse, and $2.6M with Chambre de Commerce Internationale, > all for the new top-level domains program. See: > > > https://www.icann.org/en/system/files/files/financial-report-fye-30jun12-en.pdf > > https://www.icann.org/en/system/files/files/adopted-opplan-budget-fy14-22aug13-en.pdf > > ICANN recently decided that the money it receives for each domain name > registered does not obligate it to do anything in particular; or as the > lawyers put it on page 75 of: > > https://www.icann.org/en/system/files/files/fy-2014-form-990-31mar15-en.pdf > > ICANN HAS DETERMINED THAT THE REGISTRY AND REGISTRAR AGREEMENTS DO > NOT INCLUDE ANY OBLIGATIONS FOR ICANN THAT PERTAIN TO EACH SPECIFIC > REGISTRATION OF A DOMAIN NAME. ICANN CONSIDERS THAT ITS CONTRACTUAL > OBLIGATIONS ARE UNRELATED TO A SPECIFIC DOMAIN NAME REGISTRATION, > WHICH THEREFORE DOES NOT CREATE SPECIFIC PERFORMANCE OBLIGATIONS > WHICH WOULD REQUIRE A DEFERRAL OF REVENUE OVER THE DURATION OF THE > REGISTRATION. AS A RESULT, ICANN HAS CHANGED ITS REVENUE RECOGNITION > METHOD SO THAT THE TRANSACTION-BASED FEES ARE RECOGNIZED AS REVENUE > WHEN EACH TRANSACTION OCCURS. > > In other words, they specifically state that you are paying them for > NOTHING when you pay them every year (via your registrar and registry) > to renew your domain name. The reason you have to pay? Because they > control the root and they demand payment, not because they are doing > anything for you. > > One minor drag on ICANN's ability to do exactly what it wants has been > the original US Government contract to run the domain name system. > Whenever ICANN got a little too crazy, the government would gently > suggest that perhaps it would re-bid that contract to somebody a > little less crazy. As far as I can tell from outside, the USG has > used a very light touch in this process. Anyway, the USG has never > been particularly unhappy about creating monopolies for the private > benefit of the monopolies. But nevertheless, the structure galled > other countries, especially those who want to use international > institutions dominated by governments to impose their own kind of > cultural baggage (censorship, wiretapping, etc) on global Internet > users. Or kleptocrats who could see how any international institution > that managed to wangle control of ICANN could start extracting free > money from the Internet; ICANN would just pass the costs down to all > of us, in a way that we already have no way to contest. So "Get the > US out of domains" became a rallying cry for a kind of misguided > leftists in alliance with third world autocrats. That is the current > "debate" in the multi-decade debacle of ICANN. > > To sum it up? If domain users have zero control over ICANN, if > ordinary domain owners have zero control over ICANN, if ISPs have zero > control, if domain registrars have zero control, if governments have > zero control, if even its sinecure board members have zero control, > then who will have any control over what ICANN does with the domain > name system that billions of people rely upon? The answer is pretty > simple: ICANN management and lawyers will have full control, fat > personal salaries, a pot of hundreds of millions that they're sitting > on, recurring revenues that are totally set by their fiat, and the > rest of us will have zip. Any questions? > > John Gilmore > (speaking for myself, not for the Electronic Frontier Foundation)
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