IP: ICANN == Geist reply to Simms replay to Geist article

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: Michael Geist <mgeist () uottawa ca>
Date: Sat, 15 Jun 2002 09:01:13 -0400
To: farber () cis upenn edu
Subject: Re: IP: ICANN attorney replies to Politech post on
"self-regulation's end"

Dave,

I sent the following to Declan yesterday -- might be of interest...

Since it's not everyday I get described as "all wrong", "profound
lack of understanding", "laughably naive", and "longing for a utopian
construct" in a single posting -- it usually takes at least a couple
of days to earn those accolades -- I hope you'll permit a brief
response to Joe Sims that hits on three points.

First, Joe at least validates my point in the column that ICANN
mistakenly seeks to characterize its critics as insisting that the
issue is all about global online elections.  My column specifically
argues that this is not what this debate is about and even goes so
far as to suggest that elections do not necessarily ensure adequate
representation, balance, and accountability.  Far from a "religious
approach" with not alternative solution, I think that elections are
the most obvious method of working toward fair representation,
accountability, and transparency, but not necessarily the sole method
of achieving those goals.

Second, Joe argues that groups such as the "ccTLDs must be persuaded
to come to the ICANN table and that it will not help that process to
make ICANN less stable, less predictable organization."  I think Joe
and (perhaps ICANN by extension) make a serious mistake in thinking
that transparency, representation, and accountability somehow
undermines ICANN's ability to bring ccTLDs on board.  Last year I was
elected to the board of the Canadian Internet Registration Authority,
which manages the dot-ca, in a public online election.  CIRA just
completed its second online election yesterday and the results will
be announced next week.   I believe that this illustrates that online
elections are hardly the bleeding edge of innovation that Joe claims.
The unpredictability that elections create has nothing to do with new
technologies -- rather, it is the unpredictability of who will
actually be elected, which I suspect, is one the major concerns of
those who currently run ICANN since vocal directors such as Karl
Auerbach and Andy Mueller-Maguh were not exactly their first choices
two years ago.

Moreover, my position (and I speak only for myself and not other
directors nor the organization) in the most recent CIRA election was
that CIRA should not enter into any agreement with ICANN unless it
can be satisfied that ICANN has addressed the fairness and
accountability issues with all of its constituent groups, including
Internet users.  The reasoning is simple -- if users can be so easily
dismissed, what is to stop ICANN from doing the same to the ccTLD
community once  they have them signed, sealed, and delivered.
Transparency, accountability, and fair representation are issues that
matter to all stakeholders, particularly those that ICANN admits that
it must persuade to come to the table.

Finally, while Joe says that I long for a utopian construct, the last
time I checked:

- Senator Conrad Burns was saying that legislation might be needed
because ICANN does not operate in an open fashion and is
unaccountable to Internet users;

- the GAO was concluding that ICANN has made little progress in
ensuring representation of the Internet community and using private,
bottom-up coordination;

- ICANN was embroiled in a lawsuit for failing to provide a director
with access to its records as required by state law;

- the EU was recommending total governmental consultation on all
policy issues (some partnership that); and

- the United Nations was wondering aloud about involving
international governmental organizations in the domain name
governance process.

Despite that environment, Joe says that ICANN is on the path to
success.  Now which one of us is really laughably naive and longing
for utopian construct?

MG
-- 
**********************************************************************
Professor Michael A. Geist
University of Ottawa Law School, Common Law Section
57 Louis Pasteur St., P.O. Box 450, Stn. A, Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319     Fax: 613-562-5124
e-mail:    mgeist () uottawa ca
URL:    http://www.lawbytes.ca

Looking for Internet and technology law resources?  Check out:
- the Canadian Internet Law Resource Page (CILRP) at: http://www.cilrp.org/
- my bi-weekly Globe & Mail Cyberlaw column at
http://www.globetechnology.com
- the 2nd edition of my Internet law textbook at
http://www.captus.com/Information/inetlaw-flyer.htm
- Butterworths monthly newsletter Internet and E-commerce Law in
Canada at <http://www.butterworths.CA/book.asp?bookid=403>
- UDRPInfo.com for information on the ICANN UDRP at http://www.udrpinfo.com.

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Visit http://www.bna.com/ilaw to subscribe to this free service.


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