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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:
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 enquiries of a number of individuals on similar issues, the
board has been completely non-responsive.
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 Internation 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.
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 regards 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.
1. ICANN and the White Paper
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)..."
A copy of the White Paper may be obtained at:
http://www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.htm
I encourage you to retrieve a copy and review it for yourselves.
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:
a) Representation of Internet users on the ICANN Board
The White Paper:
"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:
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.
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.
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.
b) The "Interim" Board vs. "Initial" Board
The White Paper:
" As outlined in appropriate organizational documents, (Charter, Bylaws,
etc.) the new corporation should:
1) 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:
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."
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.
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 representatives 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.
c) 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:
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.
If you review what scant information that does exist, namely the
Board meeting minutes located at:
http://www.icann.org/minutes/notes-minutes.html
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.
d) "Cybersquatting" and the WIPO report
The White Paper:
" 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:
" 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:
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:
"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."
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.
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);"
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?
e) Funding
The White Paper:
" Once established, the new corporation could be funded by domain name
registries, regional IP registries, or other entities identified by the
Board."
ICANN:
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.
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.
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.
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.
2. ICANN and its bylaws
a) The "Initial" Board of ICANN
ICANN bylaws:
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:
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.
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.
b) The structure of and representation of Internet users within the ICANN
Supporting Organizations
ICANN bylaws
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:
"(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
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.
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.
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.
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.
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.
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.
c) ICANN's adherence to its bylaws
ICANN in practice
To date, ICANN has unquestionably violated its own bylaws directly at
least two times:
a) 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, a prospective gTLD
registry; 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 Joop,
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. "
ICANN practice
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.
3. ICANN: A monopoly to dwarf NSI
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.
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.
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?
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.
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 representative of the Internet community.
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.html
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 publicly
known objective criteria for their selection over other, equally
qualified candidates.
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.
4. CONCLUSION
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."
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 has the potential to fundamentally affect Internet
users everywhere.
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 representative legislative body
in *any* of these nations.
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.
The full text of this letter may also be found at:
http://stealthgeeks.net/nader.html. I would welcome the opportunity to
speak futher with you.
Thank You
Patrick Greenwell
(408) 863-6617
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