"Name.Space": Letter from Dyson to Nader and Love re ICANN

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Date: Tue, 15 Jun 1999 12:30:47 -0400
To: nettime-l@desk.nl
From: "Name.Space" <pg@name-space.com>
Subject: [IFWP] Re: Letter to Esther Dyson from Ralph Nader and James Love
   regarding ICANN

>X-Sender: esther@206.148.52.66
>Mime-Version: 1.0
>To: love@cptech.org
>From: edyson@edventure.com (Esther Dyson)
>Subject: [IFWP] Re: Letter to Esther Dyson from Ralph Nader and James Love
>  regarding ICANN
>Cc: list@ifwp.org,pbrewster@alexanderogilvy.com,
> "Joe Sims" <Joe_Sims@jonesday.com>,Mike Roberts <mmr@darwin.ptvy.ca.us>,
> Geraldine Capdeboscq <geraldine.capdeboscq@bull.fr>,
> "George Conrades" <conrades@akamai.com>,
> Greg Crew <gregcrew@iaccess.com.au>,
> Frank Fitzsimmons <fitzsimmon@dnb.com>,
> Hans Kraaijenbrink  <h.kraaijenbrink@kpn.com>,
> Professor Jun Marai <junsec@wide.ad.jp>,
> Linda S. Wilson <linda_wilson@radcliffe.edu>,
> Eugenio Triana <etrigar@teleline.es>,
> Mike Roberts <mmr@darwin.ptvy.ca.us>,"Joe Sims" <Joe_Sims@jonesday.com>,
> <brian@PC-radio.com>,jeri@nytimes.com,
> Juliana Gruenwald <jgruenwald@njdc.com>,
> John Simons <John.Simons@news.wsj.com>,Paul.Taylor@ft.com,
> Fred Kempe <Fred.Kempe@news.wsj.com>,
>Date: Tue, 15 Jun 1999 10:18:32 -0400
>Sender: owner-list@ifwp.org
>Precedence: bulk
>Reply-To: list@ifwp.org
>
>Ralph Nader
>P.O. Box 19312
>Washington, DC 20036
>
>James Love
>Consumer Project on Technology
>P.O. Box 19367, Washington, DC 20036
>love@cptech.org
>http://www.cptech.org
>
>
>Dear Ralph and Jamie:
>
>Thank you both for your letter of June 11.  The questions you ask are
>legitimate, and we have legitimate answers to them.  What is illegitimate is
>the motivation of some of the people who keep asking the same questions
>without paying attention to the answers.
>
> I hope that my answers below will respond to your concerns. 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. As a longtime
>champion of individual rights and against monopolies, you hold common cause
>with us.
>
>Accordingly, I'd like to start by setting some context before answering your
>specific questions.  My response is intended not as an attack against
>anyone, but as a defense against attacks which are hindering us at ICANN
>>from doing the tasks for which we were created.
>
>As it happens, I'll be in Washington today (Tuesday), and I'd be happy to
>meet with either or both of you. Please let me know by e-mail or by calling
>my office at (212) 924-8800. You can also reach me later this afternoon at
>(202) 979-3863.
>
>Scene-setting
>
>I'd like to set the scene for the answers to your questions by noting that
>ICANN is a newly minted organization with many of its organizational
>processes still under way. It was created primarily in response to the
>Internet's extraordinary growth, which required a transition from informal
>management of its technical infrastructure, to something more formal and
>predictable, and subject to public (but not directly government) oversight.
>
>The Initial Board is following the guidelines set forth in the United States
>Government's policy paper of last June (the White Paper), as further
>amplified by the Memorandum of Understanding/Joint Project Agreement ICANN
>signed with the Department of Commerce in November.  These documents
>comprise an agenda both important and ambitious, and we are doing our best
>to work our way through it with the help of public input, several formal
>advisory  committees, and the so-called Supporting Organizations that make
>up ICANN's internal structure.  We welcome your input, both now and in the
>future.
>
>The White Paper articulates no Internet governance role for ICANN, and the
>Initial Board shares that (negative) view.  Therefore, ICANN does not
>"aspire to address" any Internet governance issues; in effect, it governs
>the plumbing, not the people. It has a very limited mandate to administer
>certain (largely technical) aspects of the Internet infrastructure in
>general and the Domain Name System in particular.
>
>One important aspect of its mandate is the introduction of competition into
>the business of registering domain names, under an agreement with the US
>Government. In this particular task, naturally enough, it is meeting fierce
>resistance from the private government contractor that has been the monopoly
>provider of DNS services, Network Solutions -- a company that has
>transformed itself from an unknown start-up at the time (1992) when it first
>entered into a contract with the National Science Foundation, into a
>subsidiary of a large privately-owned government contractor today, with a
>market value of over $2 billion for its own publicly traded stock [NSOL].
>Given this history, and the wealth that has been created through its
>administration of those government contracts, NSI is in no hurry to see that
>monopoly eroded.  Since this very goal is a principal short-run objective of
>ICANN, NSI has apparently concluded that its interests are not consistent
>with ICANN's success. Thus it has been funding and otherwise encouraging a
>variety of individuals and entities to throw sand in the gears whenever
>possible, from as many directions as possible.
>
>Of course, "I want to protect my monopoly" is hardly an attractive slogan,
>and so NSI uses the language of democracy instead. In addition, it
>encourages and supports others who have a variety of reasons -- economic,
>philosophical or political -- to be unhappy with the way the community
>consensus has formed.  Of course, many of these people are sincere in their
>concerns about the transparency of ICANN's operations and their interest in
>fostering public debate about its activities - as you are.  But ICANN's
>goals and its actions are in fact the result of public debate and consensus
>- though not of unanimity.
>
>NSI's rhetoric is also quite inconsistent with its conduct.  The company
>operates under the cloak of nondisclosure agreements covering not just
>technical and commercial information, but also the experiences of the
>ICANN-accredited registrars now attempting to open up the domain-name
>registration business to competition.  Furthermore, Network Solutions claims
>"proprietary" rights in databases and techniques developed under government
>contract as a reason for refusing to release information and for expensive
>license fees. The nondisclosure agreements it imposes on competing
>registrars are so onerous that many who wish to participate in ICANN's
>competition initiative cannot do so without permanently restricting their
>ability to compete in this space in the future.
>
>Forgive this lengthy preamble, but I wanted you to understand the origin of
>many of the complaints you have been hearing - basically, the effective PR
>of a monopolist seeking to postpone the inevitable arrival of competition
>fostered by ICANN. Since you have not been actively involved in this project
>over the several years it has been underway, you may not appreciate the
>power struggles involved…but given your long history of fighting monopoly
>power, I thought it was important to provide you with some background.
>
>Now of course, there are many participants in this debate who are not NSI
>agents, and who have honestly differing views about particular issues.
>Since ICANN is a consensus, non-governmental body, we are charged to listen
>to all such views and debate them, and eventually we reach a consensus
>position.  As a non-elected initial board, we take this duty very seriously;
>our method is to foster and then recognize consensus rather than force it.
>This has certainly been the case to date: Every policy developed in ICANN
>has been the product of a comprehensive notice and comment process, and
>every effort has been made to reflect in ICANN policies the consensus
>position to the extent we can determine it.  Of course, consensus is not
>unanimity, and there are people of good faith who disagree with certain
>specific ICANN policies. We try hard to explain the reasons and trade-offs
>for each decision. In the end, we realize we can achieve legitimacy only if
>a substantial number of those affected agree that we are making the right
>compromises most of the time.  (I myself do not agree with every facet of
>every ICANN decision, which is why ICANN has a board and not just a
>chairman!)
>
>With this background, let me try to respond to your specific questions.
>
>IP issues
>
>On the intellectual property issues, in its White Paper the Department of
>Commerce requested the World Intellectual Property Organization to conduct a
>study for submission to ICANN  concerning how to operate the domain name
>system so as to minimize  conflicts with trademark laws throughout the
>world.  These issues include the need for and scope of alternative dispute
>resolution mechanisms that could work despite the varying legal regimes that
>control the use and protection of trademarks and similar intellectual
>property on the global Internet; the desirability of special rules for
>so-called "famous names;" and the intellectual property issues raised by the
>possible addition of new Top-Level Domains (beyond .com, .net and .org).
>WIPO led a 10-month study, held 15 public meetings with more than 1300
>participants, and ultimately produced a set of recommendations that it
>transmitted to ICANN this April.
>
>At its meeting in Berlin in May, ICANN considered the WIPO report and
>recommendations, and the many public comments (both online and in-person)
>about them.  Ultimately, the Board endorsed WIPO's call for consistent
>administrative dispute resolution procedures in principle, and referred that
>recommendation to its newly formed constituent unit, the Domain Name
>Supporting Organization, for its review and specific implementation
>recommendations.  It also referred most of the rest of the report to the
>DNSO for further study, without endorsing a particular direction.  (And it
>noted that it had already implemented some administrative recommendations,
>concerning prepayment and contact information, in its standard registrar
>contract.)
>
>The DNSO's input will also be fully subject to the ICANN notice and comment
>procedures before ICANN's next full-scale  meeting in August, where the
>board will once again consider them in the light of public comments and look
>for consensus before deciding whether and how they should be implemented (or
>modified).
>
>The root server system
>
>On the root server system, the White Paper called for improvements in the
>system and ICANN has formed a committee of experts to look into that complex
>subject.  The committee has provided reports on its work at each of the last
>two public meetings, and has ensured that the system does not face Y2K
>vulnerabilities  At this moment, ICANN does not control the root servers,
>although it expects to do so  by the end of the transition period.  In the
>meantime, ICANN is continuing to administer TLD assignments and related root
>server policies in the same manner as they were managed by Dr. Jon Postel
>before ICANN was formed.  Any policies relating to the root servers under
>ICANN oversight will, of course, be subject to the standard notice, comment
>and consensus procedures that precede any ICANN decision that could
>significantly affect the Internet.
>
>Review and recourse
>
>ICANN is a private organization; its actions are fully subject to legal
>review and oversight.  Thus, if any action is believed to impair some legal
>right, a complainant would have full recourse to any relevant court.  In
>addition, ICANN has a fully developed reconsideration procedure, and is in
>the process of establishing an Independent Review entity to evaluate any
>claim that ICANN has acted inconsistently with its Articles or Bylaws.
>
>Financial issues
>
>The White Paper assumed that, since the private non-profit organization it
>called for (now ICANN) would not be funded by governments, it would have to
>be funded by by the beneficiaries of  its technical and policy development
>activities.  Since it is still very early in ICANN's existence, and we have
>no experience to determine the level of resources necessary to carry out its
>duties, ICANN has (again, after a full process of notice and comment)
>established a fee not to exceed $1 annually per name registration -- which
>fee would be paid by the business entities actually making the registration.
>(You asked by what authority we will charge the fees; we will do so in
>accordance with a contract that we will execute with each registrar - a
>group that we still hope will soon include NSI.)
>
> Since ICANN seeks only to recover its costs, we believe the $1 fee will  be
>adjusted downward as the early organizational expenses are gradually reduced
>and as the number of names registered increases.  In addition, if ICANN
>succeeds in fostering competition in the registration process, it is likely
>that the overall consumer price of registrations will come down
>dramatically. Currently, it is set unilaterally by NSI at $70 for a two-year
>registration (NSI does not permit one-year registrations). A
>competition-spurred reduction would lead to a substantial net consumer
>benefit due to ICANN's activities.
>
>Finally, ICANN's activities are strictly limited by its Articles and Bylaws,
>and any fees it collects can be used only to offset the costs of these
>specific activities.  Since ICANN is intended to be a 501(c)(3) tax-exempt
>organization, it is also limited by IRS regulations in any expenditure of
>funds aimed at influencing legislation. If you would like additional details
>on the expenses  we foresee for the fiscal year beginning July 1 (just under
>$6 million), you can find  a comprehensive budget document posted at our
>Website for public viewing.
>
>The role of the Initial/Interim Board
>
>Finally, I would like to consider your question whether ICANN's "interim"
>Board is making policy decisions it should not be making.  First of all, on
>semantics:  NSI has promoted the notion that ICANN somehow has violated the
>White Paper by having an "initial" Board rather than an "interim" Board.
>This argument is pointless. 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.
>
>More importantly, the White Paper made it absolutely clear that the Board
>(whatever it was called) should deal with a variety of substantive policy
>issues in addition to establishing the procedures and structures necessary
>to create an elected Board going forward.  The White Paper specifically
>called on the "initial" Board to formulate the necessary consensus policies
>to allow competition to be introduced as quickly as possible.  These
>policies included "qualifications for domain name registries and domain name
>registrars" and "policies for the addition of TLDs."  Finally, in the White
>Paper, the United States government said it would ask WIPO to "develop a set
>of recommendations for trademark/ domain name dispute resolutions and other
>issues to be presented to the Interim Board for its consideration."
>
>The current Board, which I assure you would very much like keep its tenure
>as short as possible consistent with doing its duty, has undertaken no
>policy initiatives not expressly contemplated in the White Paper, or for
>which there was not some urgency of action necessary to meet the principal
>objectives of the White Paper and of ICANN itself.
>
>Having said all this, I would like to mention that we have made significant
>progress toward a fully elected Board.  The first of the three Supporting
>Organizations responsible for electing nine of the 19 Board members is now
>in existence (the DNSO), and we expect it to provide its three Directors
>soon.  The other two SO's are currently organizing themselves, and we hope
>that they will provide their three Directors each by early next year.
>ICANN's Membership Advisory Committee has presented recommendations to the
>ICANN Board dealing with the establishment of the At Large membership that
>will elect nine Directors, and the ICANN staff and counsel are currently
>figuring out how to implement them.  This latter effort has proven
>complicated, since it is critical that the membership and election process
>that will produce fully half of the Board be fair, open, resistant to fraud
>or capture, and as widely inclusive of the full range of users and others
>affected by ICANN policies as possible.
>
>Conclusion
>
>Thus, we have made  much progress on many fronts, thanks largely to enormous
>volunteer contributions of many, many people, from Directors (who are not
>compensated other than out-of-pocket expenses and cannot be elected to the
>Board for two years  following their current service) to hundreds of
>individuals and entities that want this unique process to work. Our work
>has, however, been made much more difficult by the direct and indirect
>opposition of NSI, the primary entity that stands to gain from such delay.
>I suppose this is an understandable approach for a monopolist threatened by
>new competition, but it is still disappointing, to me and to the Internet
>community as a whole.
>It would have been much simpler, and a lot more pleasant, to have seen NSI
>work with the rest of the community to make this obviously necessary
>transition to open competition and policy-based management of the Internet's
>vital technical infrastructure.  Still, we will persevere, and we will
>succeed.
>
>I hope this is responsive to your questions.  Perhaps you could help us to
>generate even more momentum behind the forces of Internet competition and
>move away from monopoly as quickly as possible. We would  greatly appreciate
>your assistance in this effort.  If you have further questions, please call
>on me, our Interim President Mike Roberts, or our Chief Counsel Joe Sims. We
>would be glad to try to answer them at your convenience and to gain your
>understanding and support.
>
>Yours truly,
>
>
>Esther Dyson
>Interim Chairman, Internet Corporation for Assigned Names and Numbers (ICANN)
>
>
>On  11/06/99 -0400, you wrote:
>>June 11, 1999
>>
>>
>>                        Ralph Nader
>>                        P.O. Box 19312
>>                        Washington, DC 20036
>>
>>                        James Love
>>                        Consumer Project on Technology
>>                        P.O. Box 19367, Washington, DC 20036
>>                        love@cptech.org
>>                        http://www.cptech.org
>>
>>
>>Esther  Dyson
>><edyson@edventure.com>
>>Chairman
>>Internet Corporation for Assigned Names and Numbers
>>
>>
>>Dear Ms Dyson,
>>
>>Could you tell us the scope of internet governance issues that
>>the Internet Corporation for Assigned Names and Numbers (ICANN)
>>aspires to address?  For example, does ICANN seek to make any
>>decisions regarding allocation of trademark rights to those who
>>seek domain names?  And will ICANN use its control over root name
>>servers to block access to any IP address or domain name for any
>>reason?  If so, could you give us an idea of what those reasons
>>might be, and how those decisions will be made, and what legal
>>recourse persons would have regarding ICANN decisions?
>>
>>Also, does ICANN seek the authority to levy fees on the use of
>>domain names?  If so, what are the legally binding limits on the
>>use of funds from those fees by ICANN?  Under any circumstances
>>will the ICANN be permitted to use these funds to promote public
>>policy objectives on broader internet governance issues?
>>
>>Finally, is ICANN's interim board making substantive policy
>>decisions, before a membership is in place?  If so, can you
>>explain how this start-up procedure is justified given the terms
>>of your agreement with the United States government?
>>
>>You are known for being meticulous.  We await your specific
>>replies to these questions.
>>
>>Thank you.
>>
>>
>>Sincerely
>>
>>
>>
>>Ralph Nader             James Love
>>
>>
>>
>>--
>>James Love, Director, Consumer Project on Technology
>>I can be reached at love@cptech.org, by telephone 202.387.8030,
>>by fax at 202.234.5176. CPT web page is http://www.cptech.org
>>
>
>
>
>
>
>
>Esther Dyson			Always make new mistakes!
>chairman, EDventure Holdings
>interim chairman, Internet Corp. for Assigned Names & Numbers
>edyson@edventure.com
>1 (212) 924-8800
>1 (212) 924-0240 fax
>104 Fifth Avenue (between 15th and 16th Streets; 20th floor)
>New York, NY 10011 USA
>http://www.edventure.com                    http://www.icann.org
>
>High-Tech Forum in Europe:  24 to 26 October 1999, Budapest
>PC Forum: March 12 to 15, 2000, Scottsdale (Phoenix), Arizona
>Book:  "Release 2.0: A design for living in the digital age"
>