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tbyfield: Patrick Greenwell's letter to Nader/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, 29 Jun 1999 15:21:33 -0400 From: t byfield <tbyfield@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@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