IP: Joe Sims with Michael Geist's rebuttal

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: "Joe Sims" <jsims () JonesDay com>
Date: Sat, 15 Jun 2002 20:56:33 -0400
To: farber () cis upenn edu, Declan McCullagh <declan () well com>
Subject: Michael Geist's rebuttal

I hope you will permit me a brief response to Prof. Geist and Lauren
Weinstein.

It's probably not productive to engage in a back and forth with Prof.
Geist.  If he really believes that running an on-line election in Canada is
a good model for what such an event would look like on a global basis, we
are not going to find common middle ground on that point.  And apparently
he did not listen to Senator Burns' position at the hearing , when he (and
all the other Senators present) made it clear that he recognized both the
complexity of the task that ICANN was handed and the need to take into
account the fact that no one country, including the US, can unilaterally
exercise control over the Internet or the DNS.  As far as the lawsuit
brought by Karl Auerbach, I suggest he (and any others interested in the
actual facts, as opposed to Karl's or EFF's version of the facts) read the
pleadings, and wait for the court's decision.  The dispute with Karl has
nothing to do with access to materials, and is driven solely by Karl's
insistence that he and he alone can make unilateral decisions on behalf of
ICANN, and does not need to even seek, much less abide by, the decisions of
the Board of which he is but one of 19 members.

I was quite deliberate in the words I used in my original commentary on
Prof. Geist's article, because it is just the sort of unrealistic
perceptions he seems to have that have so hampered ICANN's ability to
actually become an effective organization.  Of course, ICANN has to be an
accountable organization; of course, it has to operate openly and
transparently; of course, its decisions need to be fairly based on a
record, and not be arbitrary or merely subjective.  But these goals do not
require that every ICANN discussion and action take place in a stadium or
on a live webcast; they do not require that every single person who has an
interest, however indirect or theoretical, is entitled to be an equal
participant in every discussion and decision; they do not require that
those who value stability simply defer to those who prefer to promote other
values, just because the latter insist on it.  And these goals are not
inconsistent with the need to  properly integrate national governments into
the ICANN process, so that their legitimate and inevitable interests are
listened to and dealt with, and not allowed to fester and grow until they
overwhelm the concept of an entity rooted in the private, not the
governmental, sector.

Reasonable people can differ on the details of how to reach these goals,
but it is not reasonable -- indeed, it is "laughably naive" -- to imagine
that the legitimate interests of governments and large users -- business
and other -- can simply be ignored because to some they are unattractive.
ICANN as a global coordinating body exists in large part because
governments, the US government included, have been persuaded that a private
sector organization with governmental participation is a preferable
mechanism for global coordination and oversight of this global resource
than is a purely governmental organization.  Those of us who are trying
hard to make ICANN an effective organization strongly believe that a
private sector organization is better for the Internet and all its users
than a governmental one, but if we do not make ICANN into an effective
organization, that option will rapidly disappear.   If the governments of
the world collectively decide that their interests, and the interests of
their citizens, can only be met by direct govenmental oversight, does
anyone really think that the Internet community can just tell them to go
away?

Lauren Weinstein, in her posting, seems to understand this point, but then
makes the cosmic leap to assuming that things would be just fine if we
would start all over.  She seems to imagine that ICANN has accomplished
nothing and that there is nothing there to build on (although it is hard to
understand how she would know, since she has spent considerably more time
(a little) criticizing ICANN than she has (none) helping to make it work).
This may be true from her perspective, but it certainly is not the case
from the perspective of many others.  Considering it started with no
people, no funding, no statutory power, and  no assets, the fact that ICANN
has not only survived but also actually had some major accomplishments is
impressive.  And because so many people have invested so much effort in
this, and because it has shown that it can accomplish things, it is simply
not an option to just start all over.  You might have noticed that there
was not exactly a landrush to accept the proposition you and Lauren
advanced last March; that should tell you something about other people's
perspectives.   It ought to be significant that it was ICANN itself that
concluded it needed to evolve and reform -- and that the person that first
advanced the idea were neither around at the creation, nor has any
long-term agenda.  Stuart Lynn is trying to shrug off the constant
criticism from people like Lauren and, unfortunately, you, and actually try
to accomplish Jon Postel's vision, with full recognition of how hard it
really is.

 Here is the real world fact:  Either ICANN will be made to work, through
its own internal reforms, or some form of governmental option will follow.
This is not one option -- this is the only option.  This is not because
ICANN is essential or even yet truly workable, but rather because there are
too many people and entities, (like the ITU, the UN legal advisor and some
national governments) that would be perfectly happy to see the private
sector notion abandoned, and would make it impossible for any new private
sector option to even get a chance to work if ICANN fails.  Like it or not,
a reformed ICANN is the only non-governmental option, as Nancy Victory's
testimony makes clear, and as I believe you will shortly see, the majority
of the world's governments agree with the US that it can still work if
properly reformed.  It  would truly be ironic if some people insisted on
throwing tantrums because ICANN did not look or act exactly like they want
it to, and thus help produce what they say is the absolutely wrong option.
LIke it or not, this is the real world, and the sooner everyone comes to
grips with this fact, the easier it will be to do what is necessary to make
ICANN an effective and workable organization that carries out its mission
with due regard for the principles of openness, fairness and stability that
most of  us apparently share.


Joe Sims





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