Well DOC/NTIA did make this mistake, but haven't got the
guts to
admit it. But it is well documented. I also agree that
this will be
a very big deal and battle. However given the choice between
having the registry database in the hands of NSI vs ICANN I would
at this juncture opt for NSI. Why, you might ask. The answer
is
really relatively simple. ICANN's "Accreditation Policy" is an
terrible
example of what the would do with that data.... Enough said...
Rod Dixon wrote:
I would add that one of the more troubling statements made during theRegards,
hearing came from NSI, when they argued that the NSI - NTIA agreement
transferred to them (presumably from the U.S. government) a proprietary
interest in the registry database. In other words, we now know that
there is no way that the negotiations between the DOC and NSI will lead
to NSI giving up control over the registry database. We should expect a
long hard fought legal battle...coming soon. I do not understand how the
folks at NTIA could have made this error (if, indeed, they did) since
the DOC did not have the constitutional authority to transfer a database
held in "public trust" over to a private corporation. This issue is
going to be a very big deal, IMHO.d3nnis wrote:
>
> The Subcommittee on Oversight & Investigations held a hearing today in
> which 3 panels of guests responded to
> different sets of questions regarding the question "Is ICANN Out of
> Control" (A question mark by a name indicates that I'm not positive I'm
> identifying the speaker correctly.)
>
> The commitee itself opened with a fairly strong statement that classified
> ICANN as "a grand, fascinating experiment" (Klink), and as a group whose
> "role is to oversee the DNS' transition to the private sector" (Upton?).
> Klink indicated strong reservations about ICANN's even considering
> *requiring* registrants to subscribe to an ADR and entering the area of
> Famous Trademarks. On the whole, the committee seemed very apprehensive
> about ICANN.
>
> Panel 1 (the ICANN Board): Dyson stated that ICANN is a completely
> consensus-based venture. This notion was discredited as the committee
> members turned the discussion to the "game of chicken" between NSI and
> ICANN. Rutt from NSI appeared to irritate the committee with his
> insistence that NSI reserved the right to decide for itself whether ICANN
> was living up to the terms of the White Paper.
>
> Klink repeatedly characterized the $1 fee as a tax, and challenged Dyson
> whether the purpose of the tax wasn't directly to permit ICANN to enter the
> regulatory arena by promulgating TM regulations. Dyson never conceded
> that, but she also failed to refute it effectively.
>
> Digette reinforced the idea that ICANN is entrusted by taxpayer resources
> by asking panelists "Who owns the IP in the registry?" Dyson and
> Pinkus(?) both said this was public property, while Rutt claimed that NSI
> owned its registry data, provoking more irritation on the committee.
>
> The committee pointedly asked about the lack of openness in Board meetings:
> panelists backpedalled while pointing out that future meetings would be
> open. Roberts communicated that ICANN was open and inclusive, and even
> quoted the White Paper's requirement that NewCo not give disparate
> treatment to different groups.
>
> The overall impression I formed from Panel 1 was one of discord, confusion,
> and spin-doctoring.
>
> Panel 2 had three distinct factions: Mikki Barry, Jamie Love (absent),
> and Grover Norquist were advocates of the individual. Mikki made a
> stunning, on-point statement of the serious civil liberties issues raised
> by the board's advocacy of IP issues, and reminded the committee that there
> is no individual's constituency in spite of Panel 1's assertions. She
> noted that the hearings focussed too much on the commercial aspects of the
> Net, reminding them that it was a vehicle of human communication. She
> advocated leaving TM issues to the judiciary.
>
> Norquist delivered a well-honed statement that the $1 fee was a tax, and
> asserted that Congressional authorization was required for any such act.
>
> The second faction was Harris Miller from the Info Technology Assn (ITA).
> He advocated ICANN regulation of TM
> issues. He denied that NSI was a monopoly, and instead likened it to a
> food service concession at a highway rest stop. He thought ICANN was
> functioning well.
>
> The third faction was Jon Zittrain of Berkman, and Jon Weinberg of Wayne
> State (Law). Both of them refused to take a clear position on the
> constitutional issues , preferring to characterize the IP issues as hotly
> disputed questions. Weinberg did take a swipe at the 'awful' Abraham bill
> on Cybersquatting. Zittrain agreed with the characterization of NSI as a
> monopoly.
>
> The committee congratulated the panel on its clarity and focus. They
> polled the panel as to whether DOC required more Congressional authority in
> order to engage in the activities currently underway, and whether they
> advocated a moratorium on further elaboration of policy by ICANN. Mikki
> and Norquist(?) advocated a freeze.
>
> The profs disavowed a freeze, and suggested waiting until after the
> November Board meeting (when the 3 SO's would have replaced the current
> board) to see where things were. Zittrain suggested that Congress had
> until October 2000 to intervene under the terms of the current ICANN
> contract, so why hurry?
>
> Panel 3 included Registrar.Com, AOL, and CORE. AOL and Registrar.Com felt
> that ICANN was very open and inclusive. They criticized NSI and InterNIC
> for shortfalls in quality and delays. CORE stated that ICANN could not
> accomplish its goals as laid out because of insufficient resources.
>
> The committee had to adjourn before questioning Panel 3. They agreed to
> submit questions in writing
>
> The hearings ended with a remarkably strong statement by a member I
> couldn't identify (Pickering/Bryant?) who compared ICANN to the
> 'constitutional convention of the internet'. He made it clear that he
> felt ICANN's missteps were extremely serious, and had strong constitutional
> implications.
>
> Overall, the net effect of the three panels seemed to be no-clear consensus
> on a need for immediate action by Congress. Mikki's was really the only
> voice for individuals and small businesses -- a serious
> underrepresentation.
>
> I invite any other listeners to fill in pieces I missed or overlooked.
>
> Dennis Schaefer
>
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Rod Dixon, J.D., LL.M.
Visiting Assistant Professor of Law
Rutgers University School of Law - Camden
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