Dear Mr. Lessig,
I appreciate your having made a response to my post. I'm sure the
others who are reading these lists do as well. Nevertheless, there
are some things you say which are innacurate, and I feel obliged to
correct them. You are a serious person interested in clarifying
rather than obscuring the present situation, so I'm sure you won't
object.
In your reply, you say:
> Michael Sondow has been a strong and persistent critic of the ICANN process,
> and I have been an admirer of the good he has done. I have not been an
> admirer of his carelessness with other people's reputations.
I believe, in all honesty, that I have never been careless with the
reputation of anyone. I do accept, however, that I may have said
things which damaged the reputations of persons I accused of
wrongdoing. But is it I who have been remiss for making those
accusations, or is it the persons who committed the wrongdoing?
To put it another way, which is more important, the preservation of
right and justice or the preservation of face? There seems to be a
societal sickness in this country (and not only here) that
appearances are more important than actions. So long as events can
be "spun" so as to appear innocuous, the effects of those events on
the lives of human beings are deemed to be inconsequential. Public
figures commit the most heinous crimes, not falling short of murder
and even genocide, as in the unprovoked slaughter of defenseless
peasants in Latin America and elsewhere, yet it is considered bad
form and reprehensible to say or print the truth: that those crimes
were committed by so-and-so, and that so-and-so is guilty of evil.
I am not concerned with the reputations of individuals, but with the
future of digital communications. I don't care a whit for the
sensibilities of persons involved in this Internet privatization
process, but only for the sensibilities of the people, spread across
the planet, who need the Internet in order to learn the truth about
the world they live in. If the former were concerned more for the
sensibilities of these latter, they would need worry less about
their reputations.
> I do not
> consider Johnson/Post/Froomkin to be apologists for ICANN. Indeed, Post and
> Froomkin both have been strong and powerful critics of ICANN. Both have
> devoted countless (unpaid) hours to developing detailed and useful
> criticisms of the decisions of the board. Froomkin's work on the UDRP in
> particular is extraordinarily careful and right. To carelessly slander their
> work with the suggestion of conspiracy is, imho, wrong.
Your repeated use of expletives like "slander" and "conspiracy" here
is an unjust and wrongful exaggeration of what I said about these
people. In what way have I slandered them? By pointing out that they
are lawyers, that they have taken an oath to uphold the law, and
that by looking the other way when they witness violation of the law
they are breaking their promise to the society that has appointed
them its guardians? Is that slander? I don't think so. As to
conspiracy, I fail to see where I have ever suggested anything
resembling it.
You say that Post/Johnson/Froomkin are not apologists for ICANN, yet
they countenance and allow it to exist and do its evil every day by
not taking any measure within their power - and as lawyers they
possess the power of the law - to stop it. Mere criticism is not
enough to stop arrogant adventurers from getting their way, as we
have seen time and again in politics. Only their actual removal by
force, done by an authority with power to punish, can deter such
people from what amounts to their crimes.
You tell us that Post and Froomkin have devoted much time to
criticizing ICANN's policy decisions, and add that that time has
been unpaid. But there is other than monetary recompense. A lawyer
who is ambitious for professional or political advancement must
publish, and the lawyers in this process do so every time they
disseminate a criticism of ICANN. They become known as cyberspace
experts and ICANN commentators, which is useful to their careers.
Perhaps this is a natural and not blameworthy accessory to their
critical activity, but when it is allied with the avoidance of
central issues like the legality of institutions, constitutional
right, and individual justice, it is at the very least an ambiguous
pursuit. In any case, I believe you would have in all honesty to
admit that the advancement of a lawyer's career by public exposure
through publishing commentary on his or her chosen subject is in
itself a payment, although the monetary compensation were deferred.
In regard to Froomkin's work on the UDRP, I freely admit that it has
been useful. But is the UDRP a legal institution? If not, does
criticism of its faults, even if the result of that criticism were
corrections to it, rectify its existence and justify it? Aren't
these the first questions that must be asked by a lawyer, as they
would surely be by a competent judicial authority? To merely
criticize the details of an institution's decisions without
questioning its foundation is an obfuscation of its place in the
social and legal system. It is not unlike the bank robber who is
careful not to unduly upset the clients present during the robbery,
or the murderer who cleans the blood from the floor through
fastidiousness, or, to make an example closer to home, the
legislation that is passed which is carefully worded so as to appear
harmless, while causing the greatest harm in its effects.
The UDRP is an extra-legal institution in violation of the commerce
clause to the U.S. Constitution; yet it's decisions are being pawned
off to an impressionable public as law (see http://www.dnlr.com),
and it is therefore a subversion of our society, which is based on a
legal system that is supposed not to be arbitrary. Criticisms of or
objections to its decisions based on criteria of whether or not
those decisions conform to the rules of the UDRP are a pointless
smokescreen obscuring its parental fault: the utter lack of
democratic process in its creation. The same goes for all other
ICANN institutions and sub-committees. Neither they nor the UDRP can
be restrained by criticism, not even Mr. Froomkin's, from doing
wrong and harming citizens, because they are the product of an
undemocratic process that excluded the great majority of users of
the Internet, and were created, and function, without congressional
oversight and judicial review. And since the people controlling the
operation of the UDRP and ICANN's other procedures are not
responsible to the public, and are not accountable to congress and
the courts, they will continue to use the UDRP for their own
advantage and that of their interests, regardless of the criticisms
of Froomkin or anyone else.
> Michael's post does raise a more fundamental question, which is usefully
> addressed: does one work with ICANN or deny its "legitimacy." In my view,
> and as I have said, ICANN was born in sin. I was a strong critic of it at its
> creation; I was extremely skeptical it would escape capture, and I watched
> as it pushed itself into existence (over the work of the IFWP process) in
> ways that I thought were improper.
Then why didn't you say so at the time, and use your professional
license and your influence to correct or stop it?
> But in my view, the test of legitimacy is not whether an institution has a
> virgin birth. (We should not forget, the United States constitution itself
> was illegally ratified; there were many then who insisted that it was born
> in corruption). The test of legitimacy is what the institution does. I have
> criticized some of what the institution does; I will, in the course of these
> weeks, address the issues raised about the institution in the future.
There are non-sequitors here, Mr. Lessig. You say that the test of
an institution is not in how it was created but in what it does, and
that you have criticized what it does. Do you then agree that ICANN
has acted improperly? If so, to what degree? You mitigate, by saying
that you criticized only some of what ICANN has done; does this mean
that only some of what it has done was in your opinion wrong, or
that you have not criticized all of its wrongdoing?
Is the future separate from the past, Mr. Lessig, as you imply? Will
ICANN become a responsible institution, even though it has acted
irresponsibly until now? You seem to suggest that this is possible.
But isn't this like saying that it is alright for a person in
authority, for example Esther Dyson, to step down once they have
achieved their purpose, and that once they are no longer in the
position of authority they are no longer to blame?
I suggest to you that you have not made an effort to stop ICANN from
its wrongdoing when you had the chance, and that you now wish to
diminish consciousness of its wrongs so as to reduce the blame that
might come to you for your own laxness in opposing them.
What ICANN does in future will be a consequence of what it has done
in the past. Justice requires the punishment of past actions when
they have been destructive, in order to prevent worse from happening
in the future. That is the philosophically correct way for a society
to proceed. If wrongdoing is not arrested and punished it thrives,
is an example of successful avoidance of law, and results in the
dissociation of society and anarchy. That anarchy is now setting in,
in the Internet, through the sale of gTLDs to the highest bidder so
that ICANN's minions may pay themselves absurdly inflated salaries,
or so that they may go on to high-paying jobs with companies they
are favoring, rather than the allocation of TLDs where they would be
most useful; and this is the natural consequence of the anarchy that
results from allowing undemocratic institutions to flourish. This is
the end product of letting successive wrongdoings go unarrested and
unpunished while waiting to see what the wrongdoers will do in the
future.
> But by
> running for a board position, this much should be clear -- I believe the
> best way to make sure that ICANN does no harm is to participate in the
> process to assure that it does some good.
ICANN has done harm, and neither you nor anyone else has managed to
stop it by participating in it. I, too, participated in it for a
while, until I saw with my own eyes and had the proof that no one
who opposed its decisions or criticized them had the slightest
effect. The people who created ICANN have an agenda, and they
deviate from it for no one, not even for Larry Lessig. They cannot
be stopped by reason and argument, because they are not unaware of
what they are doing, they are not in error, but are perfectly well
aware of the consequences of their actions and wholeheartedly desire
those consequences, so enamored of personal gain are they and so
selfishly indifferent to others. And if you intend to convey to us
the idea that a little good makes up for much bad, I can only warn
you that history never sees things that way, having, as it does, all
the facts at its disposal.
> That makes me a collaborator, no
> doubt.
Have it that way, if you wish.
> And when the revolution comes, I will accept my noose with grace.
You do wrong to jest about such things. There have been revolutions,
and there will be more. America was founded by a revolution, and
when the victims of arrogance, prejudice, and greed are tired of
being victims America will put a stop to it, one way or another.
And you must pardon me if I doubt that you will accept the noose
with grace. I have seen people in your position confronted with the
facts and with the people whose lives were affected by their
ill-considered decisions; they have no grace, and always beg
piteously for mercy. You should go and live with the peasants in
Chile or Brazil or Costa Rica first before making statements like
the above, rather than spending your sabaticals in Berlin. Then
perhaps you would not make jokes of what is so serious to others.
> For similar reasons, I think Michael's slander of the Berkman Center is
> equally off base.
What slander is that? Stating the fact that the Berkman Center was
instrumental in the demise of the IFWP and has aided and abetted
ICANN at every stage? These are known and proven facts, not any sort
of slander. The slander is in doing them, not in saying they were
done.
> No doubt the Berkman Center (like CDT, like the Markle
> foundation, like other organizations) has worked to try to make ICANN work
> well.
By calling off the final and most important meeting of the IFWP? By
holding forums to discuss the creation of the SOs while they were
being rigged up elsewhere? By maintaining websites devoted to the
formation of an At-large membership while the ICANN Board was
forming itself into a nominating committee and a procedures
committee to ensure that the users of the Internet would never have
more than a pitiful cry in the dark? By providing the cadres to
ICANN's staff who would invent clauses to be put into the Registrar
Accreditation Agreements that give registrars the unilateral right
to revoke registants' domain names without cause? By selling the
idea that this was a democratic process responding to the public
will, while all policy decisions were being taken behind closed
doors by a few special interests? Do you call this "to try to make
ICANN work well"?
> But it is more than a bit extreme to suggest that Berkman is
> responsible for ICANN. (I've known academics who have an inflated sense of
> their own importance; but no one in the Berkman Center is so illusioned.)
So you say that the Berkman is an accessory, and not the principal
defendant?
> But again, it is just wrong to say of Zittrain or Cabell that they are
> "apologists" or "propagandists" for ICANN. It is wrong on the merits, and
> wrong for this debate.
I doubt if there is a single intelligent member of the IFWP who does
not think that Zittrain and Cabell, to name just two members of the
Berkman implicated in this unholy process, are apologists for ICANN.
That has been virtually their sole function.
As to your apparent quibble about merits and this debate, I must
remind you that the debate is about merits. Furthermore, this is no
mere debate, from which all participants go home unaffected. Real
policies are being carried out that affect me and the many other
users of the Internet who are now subject to ICANN's prejudicial
regulation. Businesses are being ruined because the websites they
depend on are being closed down. Righteous protest is being stifled
and freedom of speech thwarted because domain names are being taken
from their rightful owners and given to those being protested
against. And the Internet's development towards a world-wide system
for economic exploitation and social surveillance and control is
being implemented.
Zittrain, Cabell, McLaughlin, Nesson, and you yourself have a hand
in this. If the Berkman Center has tried to steer the process into
lawful and democratic channels it has failed. The process has been
conducted by dirty backroom dealing, of which there is ample proof
and witness. But, like Post, Johnson, and Froomkin, the Berkman
Center does not act to stop it. It fears the powerful, and suspects,
or knows, that the powerful desire ICANN. If it is not the culprit
or a co-conspirator, it is at the very least an accessory and
apologist. Looking the other way when a crime is being committed, or
excusing the offendors, are also wrongful acts.
> If one has criticisms of someone's position,
> criticize the position. Save the slander for United Airlines.
Criticizing positions is precisely what I have done. Nowhere have I
slandered anyone. Your attempt to portray what I write as slander is
nothing more than an attempt to avoid responsibility. No one is
fooled.
Michael Sondow
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"The course of the past has impressed us with the firm
conviction that no good ever comes of falsehood, and we
feel warranted in refusing even to experiment in that
direction."
-- Thomas Henry Huxley
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International Congress of Independent Internet Users (ICIIU)
http://www.iciiu.org [EMAIL PROTECTED]
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