www.nettime.org
Nettime mailing list archives

tbyfield: Patrick Greenwell's letter to Nader/Love re ICANN
nettime on Wed, 30 Jun 1999 11:05:28 +0200 (CEST)


[Date Prev] [Date Next] [Thread Prev] [Thread Next] [Date Index] [Thread Index]

tbyfield: Patrick Greenwell's letter to Nader/Love re ICANN


- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 
<nettime-l-temp {AT} material.net> is the temporary home of the nettime-l list
while desk.nl rebuilds its list-serving machine.  please continue to send
messages to <nettime-l {AT} desk.nl> and your commands to <majordomo {AT} desk.nl>.
nettime-l-temp should be active for approximately 2 weeks (11-28 Jun 99).
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 


Date: Tue, 29 Jun 1999 15:21:33 -0400
From: t byfield <tbyfield {AT} panix.com>
Subject: Patrick Greenwell's letter to Nader/Love re ICANN

<http://stealthgeeks.net/nader.html>

   Note: If you are interested in endorsing this letter please email your
       name, address, URL, and affiliation(if you wish) to:
       patrick {AT} cybernothing.org
       This letter, along with a link to those endorsing it be sent to
       every U.S. Congressional representative. A list of individuals and
       organizations endorsing this letter may be found here.
       Background information on this letter may be found here.
         _____________________________________________________________
       
        Ralph Nader
            P.O. Box 19312
            Washington, DC 20036
            James Love
            Consumer Project on Technology
            P.O. Box 19367,
            Washington, DC 20036
            Dear Ralph and James:

         1. I would like to take this opportunity to express my deep
            appreciation for your letter to the ICANN board dated June
            11. It is both heartening to see that the ICANN board has
            chosen to respond to you, and disappointing that, despite the
            inquiries of a number of individuals on similar issues, the
            board has been completely non-responsive.

         2. I am also writing to offer some perspective on the answers
            that Ms. Esther Dyson has offered to you on behalf of the
            ICANN board. I do so as someone who has been an active
            participant in this arena for over two years, as a past board
            member and representatitve of the Internet Service Providers
            Consortium(ISP/C), as a steering committee member of the
            International Forum on the White Paper (IFWP) and as a past
            employee of two different prospective domain name registrars.
            While I serve in none of these capacities at present, I have
            chosen to remain involved in these issues out of personal
            interest and my belief that what occurs will greatly affect
            the Internet, its users, and their right to be represented in
            the decisions that affect them.
         
         3. Since the ICANN board -- by unjustifiably raising the specter
            of paid NSI agents acting as saboteurs -- has taken the
            unfortunate tack of attempting to divert attention from the
            questions you have asked, I feel it prudent to offer my
            position with regard to NSI lest I be mistaken for one of
            these boogymen. I have been a long-time critic of NSI, having
            been a victim of their fatally flawed domain dispute policy.
            Being even further upset by what I believe to have been
            nothing less than the hijacking of the former Internic site,
            I created an alternative site with similar functionality:
            http://209.133.38.12. I have never been, nor am I now, the
            recipient of any item of value from Network Solutions.
            Nothing would please me more than to see an end to the NSI
            monopoly in the .com/.net/.org registries, and a level
            playing-field for all would-be competitors.
            ICANN and the White Paper 

         4. In her response, Ms. Dyson states "The initial board is
            following the guidelines set forth in the United States
            Government's policy paper of last June (the White Paper)..."

         5. A copy of the White Paper may be obtained at:
            http://www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.htm

         6. I encourage you to retrieve a copy and review it for
            yourselves.

         7. There are a number of very significant areas where the
            Interim board is indeed not following the letter and/or the
            spirit of the White Paper:

            Representation of Internet users on the ICANN Board

            The White Paper:

         8.
            
     "The Board of Directors for the new corporation should be balanced
     to equitably represent the interests of IP number registries,
     domain name registries, domain name registrars, the technical
     community, Internet service providers (ISPs), and Internet users
     (commercial, not-for-profit, and individuals) from around the
     world. Since these constituencies are international, we would
     expect the board of directors to be broadly representative of the
     global Internet community."

            ICANN:

         9. There are no members serving specifically to represent the
            interests of Internet service providers, or individual
            Internet users on the current board. One board member, Jun
            Murai, accounts for the sum of board representation in the
            areas of IP number registries, domain name registries, domain
            name registrars, and is the only board member with
            discernable experience and participation within the Internet
            technical community. Linda Wilson, as President of Radcliffe
            College apparently represents not-for-profit organizations.

        10. Thus, out of eight groups that were to be equally
            represented, there is a single board member to represent four
            of these groups, with Ms. Wilson representing one other. This
            leaves three other groups completely unrepresented by the
            present board. As such, the current board objectively fails
            to meet the representation criteria outlined in the White
            Paper.

        11. It is also perplexing that an organization -- which is
            ostensibly charged with largely technical management duties
            in the areas of domain names, IP address and protocols --
            would have on its board so few persons with actual
            operational expertise in these areas.
            The "Interim" Board vs. "Initial" Board
            The White Paper

        12. " As outlined in appropriate organizational documents,
            (Charter, Bylaws, etc.) the new corporation should:
            
     appoint, on an interim basis, an initial Board of Directors (an
     Interim Board) consisting of individuals representing the
     functional and geographic diversity of the Internet community. The
     Interim Board would likely need access to legal counsel with
     expertise in corporate law, competition law, intellectual property
     law, and emerging Internet law. The Interim Board could serve for a
     fixed period, until the Board of Directors is elected and
     installed, and we anticipate that members of the Interim Board
     would not themselves serve on the Board of Directors of the new
     corporation for a fixed period thereafter."

            ICANN:

        13. Ms. Dyson in her response offers:
            
     " The White Paper calls for the consensus entity that became ICANN
     to 'appoint, on an interim basis, an initial Board of Directors (an
     Interim Board)' [emphasis in original]. This 'initial' Board was to
     serve until it established "a system of electing a Board of
     Directors." Thus, the terms "initial" and "interim" were clearly
     synonymous in the White Paper."

        14. I believe if you examine the text of the White Paper, you
            will learn that -- Ms. Dyson's attempted juxtaposition of
            "interim" with "initial" nonwithstanding -- no such
            synonymity exists.

        15. It is also important to note that the details of the
            selection of the current unelected Interim board -- which
            ostensibly resulted from the "bottom-up" decision-making
            process that is the hallmark of the Internet -- are extremely
            hazy at best. I invite you to ask the board what criteria was
            employed in selecting these particular board members to serve
            as the representitives of the Internet Community, and who was
            doing the selecting. It is my sincere hope that you may be
            able to elicit a simple, honest and straightforward response
            to these questions, when the rest of the Internet community
            has been unable to.

            Openness and transparency

            The White Paper:
            
     " The new corporation's processes should be fair, open and
     pro-competitive, protecting against capture by a narrow group of
     stakeholders. Typically this means that decision-making processes
     should be sound and transparent; the basis for corporate decisions
     should be recorded and made publicly available."

            ICANN:

        16. Despite continued calls for transparency mechanisms such as
            open board meetings, the current ICANN board has instead
            choosen to operate behind closed doors. Indeed, other
            organizations within the ICANN structure -- such as the Names
            Council, and the Government Advisory Council -- have adopted
            similar closed-door policies in conducting their affairs. The
            boards' refusal to conduct meetings in the open, where they
            are subject to public review, has created an unfortunate
            precedent that has become the status quo within ICANN.

        17. If you review what scant information that does exist, namely
            the Board meeting minutes located at:

            http://www.icann.org/minutes/notes-minutes.html

        18. I think you will find that there is little in the way of an
            objective basis for or explanation of the vast majority of
            decisions being made.

            "Cybersquatting" and the WIPO report

            The White Paper:

        19.
            
     " The U.S. Government will seek international support to call upon
     the World Intellectual Property Organization (WIPO) to initiate a
     balanced and transparent process, which includes the participation
     of trademark holders and members of the Internet community who are
     not trademark holders, to (1) develop recommendations for a uniform
     approach to resolving trademark/domain name disputes involving
     cyberpiracy (as opposed to conflicts between trademark holders with
     legitimate competing rights), (2) recommend a process for
     protecting famous trademarks in the generic top level domains..."

            in addition:

        20.
            
     "Further, it should be clear that whatever dispute resolution
     mechanism is put in place by the new corporation, that mechanism
     should be directed toward disputes about cybersquatting and
     cyberpiracy and not to settling the disputes between two parties
     with legitimate competing interests in a particular mark. Where
     legitimate competing rights are concerned, disputes are rightly
     settled in an appropriate court."

            ICANN:

        21. Completely ignoring the very clearly articulated guidelines
            above, the ICANN board has instead chosen to embark on a much
            more ambitious path, stating in their May 27th press release
            located at http://www.icann.org/berlin/berlin-press-rel.htm
        22.
            
     "The Initial Board noted that the scope of this policy should be
     wider than the cases of abusive registration with which the WIPO
     report deals, and ultimately cover all commercial dispute issues
     linked to Domain Name registrations."

        23. This statement alone, should remove any possible
            misperception that ICANN is not attempting to operate in a
            governance role. ICANN, entirely disregarding its mandate,
            would offer itself the authority to decide the manner and
            means by which a persons' property may be confiscated in ALL
            commercial disputes linked to Domain Name registrations
            without the benefit of a court of appropriate jurisdiction.

        24. The ICANN board also passed a resolution in Berlin regarding
            uniform dispute resolution: "FURTHER RESOLVED (Resolution
            99.43), the ICANN Board endorses the principle that a uniform
            dispute resolution policy should be adopted for Registrars in
            the .com, .net, and .org Top-Level Domains (TLDs);"

        25. In taking this action against the .com, .net, and .org
            registry, ICANN has singled out NSI and their customers for
            this treatment. There are over 240 TLDs in existence, several
            of which are direct competitors of NSI. How is the goal of a
            level-playing field aided by the implementation of a
            "uniform" dispute policy that is only applicable to some TLDs
            and not others? Why is an organization claiming that it
            exists for "technical coordination" purposes in the business
            of MANDATING dispute policies at all?

            Funding

            The White Paper:

        26.
            
     " Once established, the new corporation could be funded by domain
     name registries, regional IP registries, or other entities
     identified by the Board."

            ICANN:

        27. Eschewing any of the above-mentioned groups as funding
            sources, ICANN instead has chosen to fund itself by assessing
            a $1 per domain tax on each domain name.

        28. If there is any question as to whether imposition of such a
            fee is a tax, I welcome you to examine the finding of the
            court in the case "William Thomas, et al vs. Network
            Solutions", a decision that is located at
            http://www.aira.org.

        29. While it is certainly understandable that a funding mechanism
            for ICANN is necessary, it is completely improper that a tax
            be imposed without the representation of those being taxed --
            in this case, the individual domain name owner. In fact, I
            believe a fairly well known revolution occurred with the
            concept of "no taxation without representation" as one of its
            founding principles.

        30. That an unelected board is in the business of imposing taxes
            on an unrepresented constituency -- which would be forced to
            be the primary source of funding for this organization --
            should offer some indication of the gravity of the situation
            that faces us all.

            ICANN and its bylaws

            The "Initial" Board of ICANN

            ICANN bylaws:

        31. Article V: Section 1 of the ICANN bylaws state:
            
     " The initial Board of Directors of the Corporation ("Initial
     Board") shall consist of [a] nine At Large members, [b] the
     President (when appointed) and [c] those Directors that have been
     selected in accordance with these bylaws by any Supporting
     Organization(s) that exists under Section 3(a) of Article VI during
     the term of any of such At Large members. The At Large members of
     the Initial Board shall serve until September 30, 1999, unless by a
     two-thirds (2/3) vote of all the members of the Board that term is
     extended."

            ICANN in practice: 

        32. Currently, there are only the at-large members of the ICANN
            board. Half of the "Initial" board has not been seated as of
            yet. It would seem for the purposes of the bylaws, that there
            exists no "Initial" board of ICANN at present, yet the board
            members present are already engaging in substantive policy,
            acting as if the "initial" board was properly constituted.

        33. The term of the interim board members that are seated is to
            expire within three months, yet, while comfortable in taking
            aggresive policy actions in other areas, the board has been
            unable or unwilling to establish a membership that is to
            elect 9 members.

            The structure of and representation of Internet users within
            the ICANN Supporting Organizations

            ICANN bylaws 

        34. The ICANN bylaws state that the initial constituencies of the
            Domain Name Supporting Organization would be comprised of the
            following:

             " 1. ccTLD registries;
                 2. commercial and business entities;
                 3. gTLD registries;
                 4. ISP and connectivity providers;
                 5. non-commercial domain name holders;
                 6. registrars; and
                 7. trademark, other intellectual property and
                 anti-counterfeiting interests."

            [note: ccTLD stands for "Country Code Top Level Domain." gTLD
            stands for "Generic Top Level Domain"]

            Further:

        35.
            
     "(c) Members of each Constituency shall select three individuals to
     represent that Constituency on the NC, no two of which may be,
     except with the consent of the Board, citizens of countries in the
     same Geographic Region, as defined in Article V, Section 6.
     Nominations within each Constituency may be made by any member of
     the Constituency, but no such member may make more than one
     nomination in any single Constituency; provided that this
     limitation shall not apply to any Constituency with less than three
     members."

            ICANN in practice

        36. One of the most contentious areas in the formation of ICANN
            has been the composition of the "Domain Name Supporting
            Organization" (DNSO) within ICANN. The DNSO's role is to
            develop substantive policy recommendations on any domain-name
            related issues, including but not limited to domain name
            conflicts, and the addition of top level domains to the root
            servers. The DNSO would also select the Names Council, which
            would be charged with delivery of such policy, as well as
            selection of three ICANN board members.

        37. In this scheme, individual domain name holders are offered 3
            out of a possible 21 seats on the Name Council. The other 18
            would go to businesses, and/or their representatives. This
            presents a situation where the DNSO is dominated by business
            interests. The individual domain name owner, the one being
            forced to bear the costs of funding ICANN, will *never* have
            adequate and/or equal representation within the ICANN
            structure.

        38. The ICANN board has rejected all proposals by which an
            individual may fully participate in the DNSO. In the nine
            months since its formation, the ICANN board has failed to
            establish a general membership, a membership that would elect
            their successors. This, despite the hard work of the
            membership committee in furnishing the ICANN board with a
            completed report on membership.

        39. It is also of great import to be aware that there is no
            substitute for physical presence within ICANN. Although the
            medium that ICANN would govern requires no specific physical
            presence, allowing for instantaneous communication worldwide,
            there has been no attempt to offer physically distant
            constituents voting rights.

        40. At the last meeting of ICANN, held in Berlin, several of the
            Supporting Organization constituencies were recognized by the
            ICANN Board. Immediately thereafter, votes were taken by
            members of those constituencies physically present to elect
            Name Council members. No opportunity was afforded those not
            physically present to vote for their representatives. Thus,
            those not physically present are inadequately, and in some
            cases completely unrepresented, although persons have been
            elected to fill spaces. In truth, the Names Council, while
            not even fully constituted, has begun making substantive
            decisions regarding the DNSO.

        41. In its admirable quest to remain truly international, ICANN
            has embarked on a permanent world tour, holding meetings in
            different countries. While they are to be commended for this
            commitment to diversity, it has the unfortunate side effect
            of leaving anyone -- without the significant time and funding
            necessary to travel the globe -- completely unrepresented at
            ICANN meetings. Needless to say, the group that is most
            impacted by this lack of representation consists of the
            individual domain name owners.

            ICANN's adherence to its bylaws

            ICANN in practice

        42. To date, ICANN has unquestionably violated its own bylaws
            directly at least two times:

            Duly appointed Name Council representatives were forcibly
            ejected from a meeting.

             In accordance with the aforementioned bylaws, NSI (the only
                 member of the gTLD constituency,) named three
                 individuals to the Names Council: Don Telage, a NSI
                 employee; Richard Sexton, of the Top Level Domain
                 Association; and Joop Teernstra, a representative of the
                 an organization called the "Individual Domain Name
                 Owners Constituency." However, in the next Name Council
                 meeting on June 11th, Javier Sola, a Names Council
                 member, stating that he was operating at the instruction
                 of the ICANN board, and with ICANN Interim CEO Mike
                 Roberts and ICANN attorney Joe Simms present, ejected
                 Richard, and David Johnson, counsel for NSI from the
                 Names Council teleconference. Further, Don Telage,
                 Senior Vice President, Internet Relations and Special
                 Projects of NSI, was relegated to "observer" status. The
                 Names Council members present voted to close the
                 meeting, and as such a member of the press was denied
                 access to the call. Now that the minutes are available,
                 it is evident that the topic of discussion was the WIPO
                 report, something of vast public import.

            ICANN bylaws

             "(g) No more than one officer, director or employee of a
                 corporation or other organization (including its
                 subsidiaries and affiliates) shall serve on the NC at
                 any given time. Service as a member of the NC shall not
                 disqualify a person from being selected by the DNSO as
                 one of the Directors of the Corporation it is entitled
                 to select. "

            [note: NC stands for Names Council]

            ICANN practice

        43. Currently, two MCI-WorldCom employees, Theresa Swinehart and
            Susan Anthony, have been elected and are currently serving on
            the Names Council in violation of this bylaw.

            ICANN: A monopoly to dwarf NSI

        44. Throughout Ms. Dyson's response, she constantly referred to
            NSI as being a monopoly, casting ICANN as being a fearless
            monopoly-buster. What Ms. Dyson fails to impart is that in
            breaking the NSI monopoly ICANN stands to become a monopoly
            of far greater power and control than NSI, with regulatory
            and governance ambitions that far exceed those of NSI.
            Currently, NSI controls only the domain name registry for
            .com, .net, and .org domain names. ICANN would control much
            more:

             a) ICANN will control the assignment of Protocol parameters
                 for the entire Internet. Protocol addresses and names
                 that are necessary in order to offer new services on the
                 Internet.
                 b) ICANN will control IP address allocation for the
                 entire Internet. This has not been a high-visibility
                 discussion; however, it is likely to be of much greater
                 import to the Internet than domain names. One of IANA's
                 functions was to allocate address space to the
                 RIRs(Regional Internet Registries) so that they may then
                 in turn allocate address space to ISPs and end-users.
                 c) Currently, there are over 240 TLDs, with the
                 likelyhood that this number will expand in the future.
                 ICANN will effectively control the registries of all
                 TLDs everywhere, and force every prospective registry to
                 enter into contracts by which ICANN will dictate their
                 ability to offer services, and the means by which they
                 may do so. In fact, there are demands from the
                 Government Advisory Council that ICANN enable
                 governments to take ccTLDs from their current
                 maintainers. This is a right they do not have today, and
                 would represent a fundamental shift in long-standing
                 policy regarding ccTLDs.
                 d) Along with ICANN controlling all registries, all
                 prospective registrars in the ICANN regime are forced to
                 sign contracts with ICANN in order to do business as a
                 registrar.

        45. While there are no registry contracts as of yet, the
            registrar contract which prospective registrars are forced to
            sign does exist

            (http://www.icann.org/ra-agreement-051299.html) and:

               o Specifies what data property rights a registrar can
                 claim in the information collected
               o Mandates that registrars may only offer registrations
                 for a fixed time period
               o Forces the domain name holder "to agree to suspension,
                 cancellation, or transfer of their domain name by ANY
                 ICANN registry or registrar administrator approved by an
                 ICANN-adopted policy (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."
               o Allows ICANN to remove "certification" from a registrar,
                 likely rendering them unable to do business.

        46. I ask you, what organization chartered for merely "technical
            coordination" purposes has such broad powers as to specify
            what property rights a business can claim in data, force an
            individual or business to submit to the confiscation of their
            property at the whim of whatever undefined process that
            organization may choose to undertake at any time, or put a
            company out of business entirely?

        47. A citizen has more rights when an agency violates its own
            rules of procedure, but ICANN -- since it is nominally
            "private"--is not bound by the rules of Due Process.

        48. In purchasing a single share of common stock in NSI, any
            individual may obtain greater legal rights to speak and to
            obtain information regarding NSI, the monopoly, than one can
            obtain in ICANN, a non-profit chartered to be open,
            transparent, and representitive of the Internet community.

        49. NSI, the monopoly, is over. This is spelled out in the White
            Paper, as well as Amendment 11 of the Cooperative Agreement
            between NSI and the Department of Commerce, available at:
            http://www.networksolutions.com/nsf/agreement/amendment11.ht
            ml

        50. We have the Department of Commerce to thank for this, not
            ICANN. All that ICANN has done in this area is to produce a
            heavy-handed registrar agreement contract, collect fees from
            prospective registrars, and offer the names of five
            prospective registrars, lacking any publically known
            objective criteria for their selection over other, equally
            qualified candidates.

        51. Finally, what Ms. Dyson has castigated NSI for is acting like
            a business. As you are well aware, licensing fees and
            non-disclosure agreements are very much standard within the
            business world. It borders on the absurd to criticize a
            for-profit business for acting like a for-profit business. It
            is not NSI's responsibility to be open, transparent, and
            representative. Given ICANN's charter, and potential power
            ICANN will wield, it is however very much ICANNs
            responsibility to adhere to the principles of openness,
            transparency, representation, and fairness. I can find no
            fault with NSI demanding that a governance organization that
            is poised to destroy their business adhere to the concepts of
            fair and non-discriminatory treatment.
            CONCLUSION

        52. I would like to close in part by quoting Ms. Dyson:
            
     " Indeed, I hope that they may persuade you to join us in our fight
     to remove monopoly from the business of registering domain names
     and help keep the Net free for small businesses and individuals to
     use as they see fit."

        53. I would however ask you to consider that the fight is rightly
            to help prevent a much larger monopoly from occuring, one
            that would span not only domain names, but also has the
            potential to fundamentally affect Internet users everywhere.

        54. Left unfettered, the decisions that ICANN are making will
            amount to privately imposed law, existing in every nation on
            earth, without the benefit of the review or enactment by a
            representitive legislative body in *any* of these nations.

        55. It is imperative that voices such as yours, voices known for
            being champions of the 'little guy', are involved in this
            process. Please, help to ensure that the Internet remains
            free from the global regulatory and taxation scheme that
            ICANN is attempting to force upon us. The Internet community
            needs your continued interest and participation in these
            issues.

            Thank You

            Patrick Greenwell