Dear Mr. Link, In view of the July 22 hearing on ICANN, the ICIIU respectfully submits the following questions. M. SondowQUESTIONS FOR ICANN AND THE U. S. DEPARTMENT OF COMMERCE REGARDING THE INTERNET PRIVATIZATION PROCESS 1. Questions for the ICANN Board regarding the ICANN Registrar Accreditation Policy: a) ICANN's Registrar Accreditation Policy does not mention a single right of a domain name registrant - the consumer - only rights of registrars, registries, and ICANN. It treats domain name registrants, the users of the Internet and the creators of e-commerce and the new wealth in the U.S., as objects to be exploited or as malefactors. In your opinion, is this in keeping with the White Paper's promise to give the users an equal voice in the NewCo process? b) Section I of the Accreditation Agreement ("Definitions"), while carefully defining "registry", "registrar", "registry administrator", "ICANN", "NSI", et cetera, includes no definition or term or mention of the registrant or domain name holder. How does this reflect the DOC's exigency that the Internet users be included in this process? c) Section III.F. ("Rights in Data") says: "The registrar shall be permitted to claim rights in the data elements III.C.1.d and e and III.D.1.d through j concerning active SLD registrations sponsored by it in the registry for the .com, .net, and .org TLDs...". Data element D.1.f is "The name and postal address of the SLD holder". How is it that ICANN can give a registrar rights in a registrant's name and address? The registrar or ICANN would then be able to use the registrant's name and address as they see fit. For what purpose? To sell to third parties so that the registrar, the registry, and ICANN can profit from the registrant's personal data? d) Section III.J. ("Business Dealings, Including with SLD Holders") subsection 5 says: "Registrar shall register SLDs to SLD holders only for fixed periods. At the conclusion of the registration period, failure to pay a renewal fee within the time specified in a second notice or reminder shall result in cancellation of the registration." Defining registrations as being for only fixed periods makes them so precarious that no individual or company with small resources could afford to take the risk of investing in them. This provision alone could destroy free enterprise on the Internet. Registrations should be for indeterminate periods, at the discretion of the registrant. Isn't the DNS at the service of the registrant? Why has the registrant no rights? Wouldn't it be far fairer to registrants if this provision read: "Registrations of SLDs will be for indeterminate periods of time and cancellation of the registration shall be at the discretion of the SLD holder, except in such cases where the registrant does not pay the applicable fees in a timely manner or when the SLD has been removed from the registrant by a decision of a competent legal authority"? e) Section III.J.7.g says: "The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party." How can this be complied with, unless the registrant expend tens of thousands of dollars searching the world's trademark databases and the records of all company names registered throughout the world, an impossible task. And why should it be done by the registrant? Shouldn't it be the responsibility of a party that attacks the registrant's use of and right to the name to go to such expense, rather than the registrant? f) Section III.J.7.i says: "The SLD holder shall agree that its registration of the SLD name shall be subject to suspension, cancellation, or transfer by any ICANN procedure, or by any registrar or registry administrator procedure approved by ICANN, (1) to correct mistakes by Registrar or the registry administrator in registering the name or (2) for the resolution of disputes concerning the SLD name." What possible justification is there for revoking a domain name because a registry or registrar made a mistake, that is, penalizing the registrant for an error made by the registrar or registry? As to disputes over a name, why should the domain name holder be subject to cancellation of the domain name as a means of resolving a dispute? Isn't it true that, since ICANN has no authority to create legislation or even to regulate, that a penalty such as cancellation should only be imposed by a competent legal authority, and should not be an extra-legal means of resolving disputes decided upon by a registrar or registry? g) Section III.K. ("Domain Name Dispute Resolution") says: "During the term of this Agreement, Registrar shall have in place a policy and procedure for resolution of disputes concerning SLD names." What policy or procedure will the registrar have in place? Any one that the registrar chooses, undefined by ICANN or by a legal authority, and to which the registrant will be required to submit without the registrant's input or consultation? There is no known arbitration procedure that is the work of only one side in a dispute. What about disputes arising from abuse of the domain name holder's rights by the registrar or the registry, such as for example the misuse of the holder's personal information, or undue interruption in service of the holder's domain name? Where are the provisions for protection of the registrant's, that is, the consumer's rights? 2. Question for Michael Roberts, Beckwith Burr, Esther Dyson, and the ICANN Board regarding the Registrar Accreditation Policy: In its Memorandum of Understanding with ICANN, the U.S. Department of Commerce committed itself to, among other things, promote "the technical management of the DNS in a manner that reflects the global and functional diversity of Internet users and their needs." In the light of this commitment, could you please tell us which of the following consumer organizations were consulted in the formulation of policy for the Registrar/Registrant relationship as embodied in the contractual Registrar/Registrant provisions of the Registrar Accreditation Agreement: World Consumer Protection Organization Consumer Project on Technology Consumer Federation of America Consumer Alert National Consumer Coalition American Counsel on Consumer Interests Consumers Union of the U.S. Consumers INternational Transatlantic Consumer Dialogue Liga Acci�n del Consumidor Australian Competition and Consumer Commission Australian Consumers' Association Consumer Affairs Council of the ACT Consumers Federation of Australia Bureau Europ�en des Unions de Consommateurs Instituto Brasileiro de Politica e Direito do Consumidor Consumers Association of Canada Organizaci�n de Consumidores y Usuarios de Chile Consumer Council, Denmark Suomen Kuluttajaliitto Organisation G�n�rale des Consommateurs, France Arbeitsgemeinschaft der Verbraucherverb�nde Kentro Prostasias Katanaloton Hong Kong Consumer Council National Association for Consumer Protection in Hungary Indian Federation of Consumer Organisations Consumers Association of Ireland Comitato Difesa Consumatori Consumers Union of Japan Federation of Malaysian Consumers Associations Procuraduria Federal del Consumidor Association Marocaine des Consommateurs Nederlands Consumentenbond Consumers Institute of New Zealand Consumers Federated Groups of the Philippines Russian Consumer League Association of Slovak Consumers Consumers Institute of South Africa Consumers Union of Korea Federaci�n de Usuarios y Consumidores Independientes de Espagna Sveriges Konsumentr�d Consumers' Foundation, Chinese Taipei Uganda Consumers Protection Association Ukrainian State Committee for Protection of Consumer Rights National Consumer Council (UK) 3. Question for the ICANN Board regarding the bylaw prohibiting Names Council members from the same organization: The ICANN Bylaws prohibit more than one officer of a corporation or organization from being a member of the DNSO Names Council at any one time. Furthermore, the U.S. Department of Commerce, in its Memorandum of Understanding with ICANN, committed itself to "the global and functional diversity of Internet users and their needs", and the DOC, in its White Paper on the domain name system, pledged itself to "not apply standards, policies, procedures or practices inequitably or single out any particular party for disparate treatment". How, then, do you explain that there are five officers of the incorporated organization CORE presently on the Names Council, two of them representing a single constituency? 4. Question for the ICANN Board regarding ICANN Supporting Organization meetings conducted by ISOC: Nowhere in the legal documents of ICANN is ISOC mentioned as an official or unofficial instrumentality of ICANN, nor could it legally be such. How, then, could you permit meetings of ICANN's DNSO, its Names Council, and its Constituencies to have been held by ISOC at its INET'99 conference? 5. Question for the ICANN Board regarding Michael Robert's prior arrangements with ISOC: What are the arrangements between Michael Roberts and EDUCOM, on the one hand, and ICANN/ISOC on the other, for EDUCOM to be given control of .EDU? When were those arrangements, if any, first made? What are the arrangements for allocation of IP address space to EDUCOM? 6. Question for Esther Dyson regarding ISOC running the NCDNHC mailing list: In Berlin, as a means of attempting to resolve the impasse and mistrust between the various organizers of the Non-Commercial Domain Name Holders Constituency, you suggested that a mailing list be set up for the NCDNHC by a neutral third party. Why, then, have you allowed ISOC, a partisan organizer of the constituency, to set up and run the NCDNHC's mailing list? 7. Question for Michael Roberts and Joe Sims regarding the exclusion of ICIIU representatives from the June 11th Names Council teleconference: By sending the message copied below, ICANN recognizes that the ICIIU and its supporters are organizers of the NCDNHC. How, then, do you countenance their exclusion as observers from the June 11th Names Council teleconference, and their marginalization from the NCDNHC formation process? Isn't it your duty, as the Board of ICANN and upholders of its Bylaws, to instruct the other organizers of the NCDNHC and the DNSO Names Council to desist from denying the ICIIU and its supporters their rightful place in this constituency and in the DNSO? If you do not do this, aren't you admitting that your Bylaws, which call for fair treatment of all stakeholders, are meaningless and your organization a fraud? -------------------------------------------- Subject: Re: A proposed consensus draft v.2 Date: Thu, 17 Jun 1999 10:55:17 -0700 From: [EMAIL PROTECTED] To: [EMAIL PROTECTED], [EMAIL PROTECTED] Copies to: [EMAIL PROTECTED], [EMAIL PROTECTED], [EMAIL PROTECTED], [EMAIL PROTECTED] Any updated news on a NCDNHC compromise? The ICANN Board will be anxious for an update at its phone call next week. Thanks, Molly Shaffer Van Houweling ICANN -------------------------------------------- 8. Questions for the ICANN board regarding fairness and due process: The DOC's White Paper and MoU, as well as the ICANN's bylaws, commit ICANN to openness, transparency, fairness, and due process. Was it open and fair to give control of the DNSO website and listserv to a CORE operative - Elizabeth Porteneuve - who is using them to make propaganda for the gTLD-MoU and distort the history ofthe DNSO? Is it open and fair to allow teleconferences like the one on June 11 to take place that are closed to observers from the DNSO and from which constituency organizers like the ICIIU are disconnected on the whim of unelected, self-proclaimed Names Council officers? Is it open and fair to allow the DNSO to hold meetings under the control and supervision of ISOC, a special interest and contender for influence in a constituency, the NCDNHC? Is it open and fair for policy regarding the WIPO recommendations, authority over ccTLDs, registrar accreditation policy affecting users, and other essential policy of the DNSO and ICANN to be decided in closed sesions, at the meetings of private corporations, and by councils from which all opposition to the views of the ISOC/CORE special interests have been excluded? 9. Question for Esther Dyson regarding Names Council appointments in Berlin: In posts sent by you to the open mailing lists prior to the Berlin meeting, you stated that that meeting would be too soon for appointment of Names Council members by the yet-unformed DNSO constituencies. Why, then, did you encourage and permit the constituencies comprised of CORE and ISOC members to appoint their Names Council members in Berlin? 10. Questions for Paul Twomey, Chairman of the ICANN Governmental Advisory Committee: ICANN's bylaws specifically prohibit representatives of national governments from participating directly in the policy-making activities of ICANN. Are you aware of this? Have you read the ICANN bylaws? Does your government and the other national governments in the GAC wish a more direct role in the policy-making decisions of ICANN than what is permitted by the present bylaws? 11. Question for Beckwith Burr regarding the selection of the ICANN Board: In Supplemental Questions from the U.S. House of Representatives Subcommittees on Basic Research and Technology pursuant to the hearing on October 7, 1998, in which you were a witness, you were asked: "Does your Department have any concerns about the individuals nominated as interim board members under the ICANN proposal? How were the members of the board chosen?" You replied: "To our knowledge, the information provided by Joe Sims, counsel to ICANN, reflects the board selection process." Yet you were present on October 7 as a witness, seated at the same table with Joe Sims when he told the Committees: "I can't tell you precisely what person called what person", and "I just don't personally know", and "I don't think I actually know the answer of who actually made the telephone calls." Therefore you knew that Mr. Sims did not provide information on the board selection process. In your reply to the Committees' Supplemental Question on this subject, was it then your intention to mislead the Honorable Representatives, the Committees, the Internet community, and the American people about the true nature of the unelected ICANN board now regulating the Domain Name System? 12. Question for Joe Sims regarding the selection of the ICANN Board: In the Supplemental Questions posed by the Joint Subcommittees on Basic Research and Technology, pursuant to the hearing on October 2, 1998, in which you were a witness, you were asked:" Please explain how ICANN's interim board was established." You replied: "...Dr. Postel concluded that the most likely way to create an interim board that could obtain consensus support was to seek out highly qualified people who were specifically not representatives of any particular stakeholder group." Are you unaware that Michael Roberts, the current President of ICANN and apparent leader and chief policy-maker of its board of directors, was a founding director of ISOC, as well as the director of Educause, which is supporting ISOC in its bid to dominate the Non-Commercial Domain Name Holders constituency of the DNSO? Could you tell us, please, in what way Mr. Roberts fulfills Jon Postel's and presumably your criterion for serving on the interim board of ICANN, that is, not being a representative of a particular stakeholder group? 13. Question for Beckwith Burr regarding the selection of the ICANN testbed registrars: In the DOC's Memorandum of Understanding with ICANN, Article V Section A(2) states: "The parties agree that mechanisms, methods, and procedures developed under the DNS Project will ensure that private-sector technical management of the DNS shall not apply standards, policies, procedures or practices inequitably or single out any particular party for disparate treatment unless justified by substantial and reasonable cause and will ensure sufficient appeal procedures for adversely affected members of the Internet community". Are you aware that three out of five testbed registrars accredited by ICANN are in CORE? Is this your idea of an equitable policy? One must assume that all 34 applicants that passed fulfill the technical and financial criteria for accreditation, so how were the five chosen for the testbed? Did you know that one - AOL - has never functioned as a registrar before, whereas a number that have been performing the equivalent of registration for years were not among the five and are suffering a loss of business due to the unfair price competition imposed by the testbed? What appeals procedure, as ensured in the MoU, is in place for the adversely affected members of the Internet community? 14. Question for Joe Sims regarding inequality of stakeholder representation in the DNSO: In your sworn testimony to the U.S. House of Representatives Joint Hearings on the Domain Names System on October 7th of last year, in response to a question about the inclusion of all the stakeholders in the ICANN privatization process posed by Chairwoman the Hon. Constance A. Morella, you said: "And so the structure, as it was proposed, includes these three separate supporting organizations, two of which obviously respond more to the operators and technical people involved in the Internet, and one, the domain name supporting organization, which is clearly focused on business and individual users of the Internet." You and the ICANN interim board have given four constituencies to businesses: Commercial and business entities; Trademark, intellectual property, & anti-counterfeiting interests; ISPs and connectivity providers; and Non-commercial domain name holders (through businesses' second-level organizations like ISOC). Will you please tell us now what provisions you and the interim board have made for the inclusion of individual users in the domain name supporting organization? 15. Question for Beckwith Burr regarding ICANN's incorporation in California: In follow-up questions to the October 7th hearing of the House Committee on Science, you were asked by the Honorable Representatives: "Do you agree with the ICANN's proposal to incorporate in California? Would incorporating in Delaware, or a different state make more sense?" You replied: "The Department of Commerce takes no position on the relative merits of individual state law, but in general the Department of Commerce believes that the private sector is in the best position to determine the most appropriate state of incorporation for the new corporation." What did you mean by "the private sector"? Would you have the House Committee on Science and the Internet community believe that you did not know that it was Joe Sims, and Joe Sims alone, who decided to incorporate the NewCo in California, in face of the opposition of Tamar Frankel, chairman of the IFWP and therefore more worthy by far than Joe Sims to be considered a representative of the private sector's consensus? Further questions for the ICANN Board and the NTIA: 3) What role has Vint Cerf played in the formation of ICANN? Is Mr. Cerf planning to be a candidate for President of ICANN? What are the funding arrangements between his company, MCI, and ISOC and CORE? Have payments been made between MCI and ICANN other than those attested to by the GIP? Between MCI and CORE? Between MCI and any of the individuals on the ICANN Board or on any of ICANN's sub-entities? What about payments from IBM? 4) What is the true role of David Maher, who appears to be a member of CORE, ISOC, INTA, and IBM all together, in ICANN? Who pays for Mr. Maher's travel expenses? 5) Who is Javier Sola? What are Mr. Sola's connections with Christopher Wilkinson, a member of the Policy Oversight Committee of CORE, and with the European Union, whose spokesperson in ICANN is Christopher Wilkinson? Why was Mr. Sola chosen as ISOC's V-P for conferences? What are his connections with CORE? What is the European Internet Business Association, of which he is president? What is the AUI, of which he is secretary? Who funds those organizations? What are Mr. Sola's connections with David Maher? How did Mr. Sola come to chair the DNSO Names Council? Why was he allowed to eject people from the June 11 NC teleconference when he wasn't the leader of the call? Who set up that call? What are Mr. Sola's connections with Michael Roberts and Joe Sims, who were on that call but never spoke? 6) When was Paul Twomey first approached to head ICANN's Governmental Advisory Committee? Who approached him about it? What are his connections to ISOC? To the trademark lobby in Washington and Brussels? To Christopher Wilkinson? To Vint Cerf? To David Maher? 7) What was Beckwith Burr talking to Roger Cochetti about at the FTC meeting in Washington on June 9th, that they needed to hide at the end of the corridor after everyone else had entered the hall? 8) What contributions, if any, have MCI and IBM made to the Democratic Party? If contributions have been made, when were they made? 9) What persons in the Department of Commerce or other Departments of the U.S.G. have professional or commercial connections to MCI, IBM, and the other companies financing ICANN? 10) Is ICANN planning to destabilize the Internet by splitting the root and starting a second "A" root at NIST (see: http://www.icann.org/minutes/berlinminutes.html and recent news from INET)? 11) Is this what the DOC and ICANN meant by "creating competition"? 12) What percentage of the name servers on the Net will voluntarily point to the new root? 13) What coercive measures will ICANN and the DOC use to convince those who do not voluntarily point to the ICANN root to do so? 14) What will ICANN charge for their new "service"? 15) Will ICANN (that is, the GAC) now confiscate all ccTLDs that do not subscribe to ICANN's root? Question for Secretary William Daley regarding the DOC's support for ICANN: On April 21st you said: "This announcement [of the new domain name registrars] is also a measure of how far we've come in moving towards private management of the domain name system. When we recognized ICANN in November, we knew that this new, not-for-profit corporation would have to earn the respect of the Internet community. The enthusiasm with which companies respond to ICANN's call for competing registrars demonstrates that ICANN is earning this respect. I want to congratulate and thank the ICANN board who, in the best tradition of the Internet, have volunteered their services in this important cause." Have you ever wondered, Mr. Daley, why those nine people have "volunteered" to form the NewCo, which will have fundamental authority over the Internet, and why they remain in their positions of power even while suffering constant attacks from those of us in the Internet community who, despite what you said in your statement, are quite discontent with ICANN and the perverted process to take control of the Internet for a few that ICANN is overseeing? Did you never wonder why they are there, how they got there, and why they remain? In 1997, Scretary of State Madeleine Albright stopped a coalition of private organizations that had devised a plan for taking control of the Internet for their own purposes. These unconscionable persons, the leaders of ISOC, CORE, INTA, ITU, and others, had devised a scheme for creating an international organization, with no foundation in law, no authority nor democratic process, to be centered in Geneva. Ms. Albright, taking heed from the loud protests coming from small Internet enterpreneurs who saw their future stymied by an international cartel, and realizing that the illegal coalition could have no support from government, sent people to stop it. Denied the support of governments, that initial effort of the illegal coalition failed. But the coalition remained intact. Now, thanks to the disappearance of responsible authority in the form of the late John Postel, and by means of a surreptitiously chosen interim ICANN board, those same forces, intent on forming their Internet cartel and controlling the Internet for their purposes, are succeeding where they failed two years ago. If not stopped, these people will soon control every one of the six constituencies that make up the Domain Names Supporting Organization of ICANN, its policy-making counsel on domain names. And through the control of the DNSO that they will have wrested from the Internet community thanks to facilitation by an undemocratically chosen and partial interim board, they will control elections and eventually the Board of ICANN, and with ICANN the Internet. One must assume that you are not unaware of the true nature of ICANN, the manner in which it was brought into being, who controls it, and who it represents. My question to you then is this: Why do you and your Department support this unfair, undemocratic, and probably illegal organization? Submitted by Michael Sondow Chairman, ICIIU ============================================================ International Congress of Independent Internet Users (ICIIU) http://www.iciiu.org [EMAIL PROTECTED] Tel (718)846-7482 Fax (603)754-8927 ============================================================
