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"Name.Space": Letter from Dyson to Nader and Love re ICANN |
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - <nettime-l-temp@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@desk.nl> and your commands to <majordomo@desk.nl>. nettime-l-temp should be active for approximately 2 weeks (11-28 Jun 99). - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 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" >