IP: ICANN attorney replies to Politech post on "self-regulation's end"

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: Declan McCullagh <declan () well com>


Previous Politech message:

"Michael Geist on ICANN, Congress, end of 'self-regulation'"
http://www.politechbot.com/p-03653.html

Joe Sims is ICANN's chief outside counsel.

-Declan

---

To: declan () well com
Subject: Michael Geist's column
From: "Joe Sims" <jsims () JonesDay com>
Date: Fri, 14 Jun 2002 11:03:28 -0400

Of course, Geist has it all wrong.  I hope you will consider publishing
this response.

The notion that not enough happens at ICANN in public, and that the answer
to ICANN's problems is more transparency, illustrates a profound lack of
understanding about what ICANN really does, and how it really does
it.  Prof. Geist is not the only one that doesn't get it, but since he has
the ability to publish columns, it is probably worth while trying to
correct his misunderstanding.

Contrary to Prof. Geist's assertions, ICANN is not a self-regulatory
body.  It was never intended to be a self-regulatory body.  It was intended
to be a forum for the possible discovery of consensus solutions to global
issues related to the DNS -- a way, quite frankly, for national governments
to find a place for the resolution of global DNS issues that did not
require a new treaty organization.  It is true that its original structure
called for half its Board to be selected by a general At Large membership
of some kind, but that was certainly not the consensus view of the Internet
community at that time.  Prof. Geist, having not been part of the
discussions with the US Government that produced that construction, is
undoubtedly unaware of the fact that no one involved in that decision, and
I include those in the US Government (feel free to ask them) was convinced
that such an approach was really workable.  The ICANN organizers wanted to
insert the words "if feasible;" the US Government position at the time, for
reasons I leave to the reader to imagine, was "we'll figure out how to do
it later."  The then brand-new Board of ICANN, without the assistence of
Jon Postel who had died a month earlier, acquiesced to this position,
notwithstanding a quite clear concern that it might not be possible to make
it work.  In hindsight, I am quite sure most regret this decision.

We now have almost 4 years of experience by which to test the concepts on
which the original construction rested, and we actually know some things
that we did not know then.  We know that the notion of global on-line
elections is fraught with problems that are too complicated for ICANN to be
on the bleeding edge on innovation in this area.  We know that there is no
consensus in the ICANN community on exactly how the public interest should
be represented in ICANN's structure, notwithstanding the insistence of
those like Prof. Geist that there is only one possible solution.  We know
that part of the reason there is no consensus is that those who insist on
direct elections of Board members have refused to consider any other
alternative way of representing the public interest; this religious
approach is not conducive to compromise or consensus.

We also know that a purely private organization, without the support and
involvement of governments from around the world, will not be able to carry
out thes mission assigned to ICANN (if you believe that mission requires
the agreed participation of all the relevant infrastructure
providers).  ICANN has no guns, and no soldiers; it has no coercive
power.  It can succeed only if the relevant portions of the community
voluntarily agree that they want to participate and make it succeed.  To
date, that has not happened.  We can argue all we want about why it has not
happened, but it is clear that the reason is not the failure to hold
on-line elections.  The fact is that the root server operators, the address
registries, and the ccTLD registries must be persuaded to come to the ICANN
table, and it will not help that process to make ICANN a less stable, less
predictable organization.

Finally, we know (or at least some of us strongly believe) that the path to
ICANN success is an appropriate public/private partnership, with the
private sector and global governments working together within an ICANN
structured to accept input from all but also able to make effective
decisions in a timely way.  We are clearly on the path to such an ICANN,
and I hope we will take another step toward that goal at the meeting in
Bucharest later this month.

The notion that government interest in ICANN is heightened by the failure
to adopt some form of global elections is laughably naive.  Governments are
properly interested in ICANN because the Internet is increasingly critical
to the well-being, social and commercial, of their citizens, and because
what ICANN is responsible for is critical to the continued stable operation
of the Internet.  This would be true whether all or none of ICANN's
directors were elected by the general public.  And it is this fact that is
driving the process of gaining the proper level of government participation
in ICANN, nothing else.  This is the real world; Prof. Geist insists on
occupying some academic construct of a world.  This longing for some
utopian construct is not useful in trying to reform ICANN into a body that
does reflect, as best it can be done, the views and concerns of the entire
Internet provider and user community.



Joe Sims
Jones Day Reavis & Pogue
51 Louisiana Avenue NW
Washington, D.C. 20001
Direct Phone:  1.202.879.3863
Direct Fax:  1.202.626.1747
Mobile Phone:  1.703.629.3963

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