Milton and all,
Milton Mueller wrote:
> I think Roberts deserves praise for engaging in the debate. This is a conversation we
> need to have. See comments below.
I agree it is a good thing that Mr. Roberts has in a very limited way decided
to actively participate. However it is far too little and nearly too late...
(See more comments below)
>
>
> > Commentary on Professor David Post's Essay of June 5 Concerning ICANN
> >
> > ICANN is pursuing
> > its work program as spelled out in the Government's White Paper on the
> > Management of Internet Names and Addresses and in the Department of
> > Commerce's Memorandum of Understanding/Joint Project Agreement with
> > ICANN that was executed last November.
>
> I agree with this, and probably Post does, too. The unfortunate fact is that the
>White
> Paper is a mandate for Internet governance, not for technical coordination. In a
> direct debate with myself and Post in Washington May 6, J. Beckwith Burr did not even
> attempt to deny this. Most obviously, the WP calls for the linkage of domain name
> assignment and trademark dispute resolution. This fundamentally and immediately moves
> ICANN out of the realm of technical coordination and into the realm of
> regulation/governance. Just as the FCC's control of radio spectrum allocation was
>used
> to license and regulate conduct and content, so ICANN's mandate has been to utilize
>the
> control of domain name registration to license and accredit registrars, impose a
> specific business model on the industry, and to police and enforce intellectual
>property
> rights. Post was making the charge of "governance," not that you were deviating from
>the
> White Paper.
Without the active participation and bottom-up stakeholder driven and
determined process, the ICANN Interim Board, *IS* deviating from the
most fundamental requirement of the White Paper. As such the form of
governance being practiced from the ICANN Interim Board is one of
a collective dictatorship. This is clearly *NOT* the sort of process that
is a bottom-up governance process. I think that Mike Roberts is very
well aware of this.
>
>
> > 1. Control of the Root Server
> > The system of [currently thirteen] functionally identical root servers
> > set up by Jon Postel is operated on a voluntary basis by a disparate
> > group of international organizations with a common interest in seeing
> > the Internet function well. In addition to the checks and balances
> > inherent in this distributed functionality and responsibility,
>
> There is an authoritative root server. All the rest download the zone files from it,
> and act as backups. There is no distribution of the responsibility for the
> authoritative zone files.
This is essentially right, but does not nor should necessarily remain so.
>
>
> > there are
> > the further checks provided by the fact that the major ISP's ultimately
> > have the power to determine what name servers are actually used in the
> > Internet. Various efforts to create a different root environment, such
> > as alternic, have thus far failed because the leaders of the ISP
> > industry see more value in a transparent and interoperable Internet than
> > in one in which multiple root systems vie for attention.
>
> Can you spell "lock-in by network externalities," Mr. Roberts? Efforts to start
> alternative roots have failed for the same reason that an attempt to start up a new
> telephone system without interconnection to AT&T would have failed in 1984. The
>value of
> a root (or a telephone network) depends on the number of users connected to it. The
> legacy root confers great power to its controllers simply by virtue of the fact that
>it
> is the legacy root, and everyone points to it. It would take enormous coordinating
> efforts and impose great risks of isolation upon anyone who attempts to break out of
>its
> lock. That's why we have a problem with Microsoft and its dominance of PC operating
> systems, too. There is, in short, no way around the fact that control of the root
> creates the possibility of exercising governmental powers.
Policies for determining the use and operation of the Root, as the White
paper eludes to should be made by the stakeholders, not by the ICANN
Interim Board itself. Those policies as they effect directly all stakeholders,
once established, should be the responsibility of the ICANN Interim Board
to enforce. This is not what the current process indicates.
>
>
> > Any significant evidence of the type of pathological behavior in the
> > management of Internet routing hypothesized by Professor Post in his
> > text almost certainly would lead to a similar type of government control
> > of the Internet, both in the U.S. and abroad.
>
> The more ICANN starts to act like a government and exercise quasi-governmental
> regulatory powers, the less scary this great bogeyman of "government control"
>becomes.
> ICANN now has a Government Advisory Commission that operates behind the scenes and in
> closed-door meetings. The Chairman of the GAC claimed in public that governments
>around
> the world played a major role in "making ICANN happen." Is ICANN a way of avoiding
> government control, or is it a way of avoiding the procedural restrictions and public
> oversight that typically accompany government action, at least in democracies?
Public or stakeholder oversight is a part of the requirements of the White Paper.
And it is this part that the ICANN Interim Board, and most specifically Mike
Roberts and Esther Dyson seem to believe, as they have publicly stated
on several occasions seem to wish and are willingly avoiding.
>
>
> > 2. Support for ICANN's Budget
>
> > the proposed fee [which] was explicitly stated to be no more
> > than $1, because it is not clear exactly what ICANN's costs will be or
> > how many names will be registered. Since ICANN is a non-profit, cost
> > recovery vehicle, the fee will be adjusted over time to produce revenues
> > that fund expenses - no more or less.
>
> The problem with non-profits is that in the absence of market competition, expenses
> are highly elastic. ICANN did not need to hold its Berlin meeting in the most
> expensive hotel in Western Europe. ICANN may or may not need to pay its CEO USD
>300,000.
> It is never difficult to find ways to get expenses to rise to the level of
> revenue. (If you need more advice on how to do this, contact me ;-)
Elastic expenses in a non-profit is an understatement, to be sure in most
instances. >;)
>
>
> > The comment period did not produce
> > any proposals for a more equitable means of supporting ICANN's
> > activities.
>
> The good thing about a domain name tax, as opposed to certain other funding
> mechanisms, is that it does not bias ICANN toward large contributors who might
> influence policy. Properly controlled, a domain name tax is a relatively democratic
> method of supporting ICANN. I am still, however, concerned about the creation of a
> huge surplus and its diversion to the creation of a huge and unnecessary bureaucracy.
> What mechanisms are in place to align real costs with the size of the tax?
Your concern Milton is well placed. The mechanisms to align costs in
concurrence with the tax, is also an area that the stakeholders should be
directly involved in determining.
>
>
> > In the idiom of the ICANN Bylaws, consent of the governed
> > is obtained through the operation of the public notice and comment
> > provisions. If there is a better way, let us hear it.
>
> Ah, Mr. Roberts. "Consent of the governed." You have lost your debate with Mr. Post.
> This is precisely the point we are trying to make. You are exercising
> quasi-governmental powers. At best--and to some of the more anarchically inclined,
> this is not very good--you can moderate those powers by putting into place
> representational structures, public notice and comment, checks and balances. Those
>are
> political processes, sir, let there be no doubts or misconceptions about what is
>going
> on.
Precisely, Milton. And yet another area where the ICANN Interim Board
has abused its position and neglected it's responsibility to the stakeholders.
>
>
> > 3. The WIPO Report
> > the ICANN Board did not "adopt" the
> > WIPO report in its action on May 27; instead, it took a series of
> > detailed steps which included referring the majority of the report to
> > its newly constituted Domain Name Supporting Organization for analysis,
> > review and recommendation. It took these actions after five months of
> > study and comment by members of its constituencies and its staff
>
> That is an interesting assertion. The WIPO report was not finished and released until
> April 30, 1999. The DNSO constituencies did not exist until May 28, 1999. Where did
> those five months come from?
Good question, and one that has been posed to Mike Roberts before as well.
I doubt that there will ever be an unequivicable answer anytime soon....
>
>
> The real issue here is that WIPO represents the view of the trademark community, not
>the
> Internet community, which is supposed to be your constituency. 80% of the
> participants in the WIPO process were trademark lawyers and IP owners, looking for
>ways
> to protect their rights. WIPO is itself an agent of those interests. The views of
> individuals, free speech advocates, small businesses, registrars and registries, ISPs
> were not reflected in the WIPO proposals. What ICANN needs to do is initiate a
>process
> to define its *own* proposals for reconciling TM and DN rights.
Completely agreed.
>
>
> Just to indicate how poorly this issue has been aired, you, Mr. Roberts, admitted in
> Berlin that you had never before heard of the polic option that registries can
> function effectively without *any* dispute resolution policy. The policy option
> presented to you by the New Zealand registry, which is completely successful, was
>news
> to you.
The New Zealand option should not have been a surprise to Mike Roberts
as it was presented to him on more than one occasion via E-Mail. It
appears from this statement that Mike Roberts made in this regard is
either disingenuous or he is not reviewing his E-Mail very closely.
Whichever the situation might be, this sort of statement does not bode well
for his position with the ICANN, and would directly indicate that he is
not earning his compensation.
> This indicates that ICANN's Board still has a lot to learn about this issue. Your
> propensity to view the WIPO report as the last word on the subject--and to adopt
>parts
> of it in your accreditation contract before WIPO was even finished with it--does a
> disservice to your constituency.
Not only is it a disservice to Mr. Roberts constituency, of which we are not
really sure of at this juncture, it does a disservice to the stakeholders and the
process as a whole. This seems to be an indication of incompatancy.
>
>
> > and the actions reflected the consensus comments it received in the public
> > notice and comment periods of both the March (Singapore) and May
> > (Berlin) Board meetings.
>
> Public comments overwhelmingly asked you to set aside the *entire* WIPO report and
>refer
> the entire matter to the DNSO.
This is indeed true, and also that the WIPO report should be referred to the
ICANN membership for their review and approval as well before action, if
any should be taken on it.
>
>
> > this requirement for open access to the identity of those
> > responsible for operating a domain name in the Internet goes back to the
> > very early days of the American academic Internet and has been a
> > mainstream attribute of Internet culture for many years. It seems to me
> > and to many others to be a useful principle worthy of being continued.
>
> Perhaps. Perhaps not. The point is: a) it's a public policy decision, not an act of
> technical coordation, and b) you made the decision without any accountability.
Accountability doesn't seem to be the ICANN's strong suit, or the NTIA's for
that matter.
>
>
> > 4. Scope of ICANN Activities
> > ICANN's role in this area is limited to
> > "coordinating the assignment of Internet technical parameters as needed
> > to maintain universal connectivity on the Internet."
>
> Please explain to everyone how the reservation of famous names in the domain name
>space
> is necessary to "maintain universal connectivity on the Internet." Please
> explain how and why complete and accurate contact information in a publicly
>accessible
> database is needed to "maintain universal connectivity on the Internet." Please
>explain
> how the imposition of a *uniform* dispute resolution process is needed to "maintain
> universal connectivity on the Internet." Please explain how requiring a business
>model
> that mandates shared registries is related to the goal of "maintaining universal
> connectivity on the Internet." Once you explain these things I will perhaps
>understand
> better how you can continue to claim that ICANN "doesn't do governance."
All good questions. And ones that have been posed many times during this
skewed process without answers to any from the ICANN Interim Board.
>
>
> --
> m i l t o n m u e l l e r // m u e l l e r @ s y r . e d u
> syracuse university http://istweb.syr.edu/~mueller/
Regards,
--
Jeffrey A. Williams
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail [EMAIL PROTECTED]
Contact Number: 972-447-1894
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208
