IP: Fwd:John Gilmore's Initial analysis of new Draft NSI/IANA

[Dave Farber <farber () cis upenn edu>]

FROM YOUR EDITOR


I will use this message to restate on of my creeds. I will try to present all serious opinions on an issue. I just got 
a nasty for daring to take a position deemed "liberal" on the Starr report. While I am proud to be called a liberal, I 
will send out responsible arguments on all sides of an issue. Last time I looked that is how democracies work.


Dave




Date:         Thu, 17 Sep 1998 14:30:09 -0700
From: John Gilmore <gnu () TOAD COM>
Subject:      Initial analysis of new Draft NSI/IANA Bylaws


IANA released new "compromise" NSI/IANA articles of association and
bylaws for the "New IANA" today.  (See www.iana.org for the original
documents.)  These are my personal comments on a first reading.


There's no language at all about free expression.  Today the IANA
and NSI are chartered by the US Government, which is required to protect
freedom of expression.  Indeed, a court case currently in progress
is examining whether the current arrangements violate freedom of speech
by preventing new TLDs from being created, and there are dozens of
cases where NSI has arbitrarily decided that it will not register
particular domain names, in its sole discretion.  ("pimpshit.com",
for a store that sells clothing targeted to Black people, was one
such example.)  NSI's terms for domain registration say they can cancel
a name at any time, with or without cause, and they have no liability.
This will be challenged in court.  But if the system becomes
administered by a New IANA, with no government connection, then
there are no guarantees of freedom of expression, association, etc,
UNLESS WE BUILD THEM IN OURSELVES.  The New IANA and the organizations
like NSI that derive authority from it, can suppress free speech at will,
and there's no legal recourse.


The Electronic Frontier Foundation has written draft text that would
require the New IANA to uphold the UN Declaration of Human Rights, and
give everyone the right to sue New IANA if it failed to do so.  IANA's
lawyer, Joe Sims, refuses to accept any such provision; he doesn't want
people to have ANY grounds to sue IANA.  For the
Internet community, this would be like spending years fighting the
Revolutionary War, finally getting to define our own form of
governance, and installing a totalitarian state with no civil rights.
My only reply is: "What are we fighting for?"


There is only a weak guarantee of due process in the current draft.


Art III, Section 2 (access to information)


>      approval by the Board on the Web Site and otherwise. Minutes
>      shall be made available immediately following approval by
>      the Board; provided, however, that minutes relating to
>      personnel or employment matters, legal matters (to the
>      extent the Board determines is necessary or appropriate to
>      protect the interests of the Corporation), matters that the
>      Corporation is prohibited by law or contract from disclosing
>      publicly and other matters that the Board determines are not
>      appropriate for public distribution shall not be disclosed.


This section still does not require transparency.  It requires that a
single report be made annually, at the discretion of the Board, and
that minutes be published, one board meeting later than when the
action actually happens (after "approval" of the minutes).


   It does not require Board meetings open to the press and public
        for observation.
   It does not require publication of contracts signed.
   It permits ANYTHING to be withheld merely by signing a contract
        (e.g. with NSI) that requires that it be withheld.


The New IANA should have an enforceable Freedom of Information
provision that applies to all documents, files, etc in its possession.
As in the US FOIA, the presumption should be that a document must be
disclosed unless it falls into clearly defined categories for
withholding (defended in court if the requester insists).  In such
cases the court should be able to review the documents _in camera_ and
make its own _de novo_ decision about whether they should be released.
In all cases, disclosable portions of information should be released,
with undisclosable portions "blacked out".


It looks like it needs a Sunshine provision too, that opens its
workings to public scrutiny.


What the Bylaws lay out is a traditional smoke-filled backroom good-
old-boys' organization.  The annual report can be full of moonshine,
the Board minutes can say things like "The board had a discussion on
domain name policy and passed three motions", and the real deals can
be made in secret, with the public excluded before, during, and after
the fact.  Unless we change these bylaws.


ISOC has operated with board meetings open to any member of ISOC for
years, and this hasn't impaired its ability to function.  There's been
a member of the press, and interested ISOC members, at every board
meeting I've attended.  The world hasn't crumbled as a result.  Why
does IANA resist real openness?


Article IV, General Powers.  Section 1(d):


>      (d) The Corporation shall recognize and abide by the terms
>      of any agreements entered into between the United States of
>      America and Network Solutions Inc. and between the United
>      States of America and the University of Southern California
>      and between the United States of America and the Corporation
>      in connection with the creation of this Corporation and the
>      transition to the Corporation of various coordination and
>      other responsibilities related to the Internet.
>
>           Comment: This language simply reflects the reality
>           of the transition arrangements between the
>           Corporation and the United States Government.


This is intolerable.  This is the "back door" through which
NSI will sneak various things into the structure of the domain
name oversight, by collusion with the US Government, which it is
very good at.


Furthermore, this clause limits and defines the powers of the New
IANA, based on documents that are not even required to be published!
That's *completely* intolerable.


IANA is not bound by any contract between the USG and NSI.  It need
not bind itself to any such documents.  This is the result of NSI
pressure, not good governance.


I suggest eliminating this text and inserting new text at the end of
Article X, Section 1, "Contracts":


      No contract shall bind the Corporation unless it is published
      for free public access, including on the Web Site, by the
      Corporation.  No contract with the United States of America,
      Network Solutions Inc., or the University of Southern
      California, relating to the transition to the Corporation of
      various coordination and other responsibilities related to the
      Internet, will be valid unless its final text had been published
      for thirty days, and public comments accepted, before being
      approved by vote of all of the members of the Board.


          Comment: This would require all contracts to be public
          documents.  It also requires a public draft, public
          comments, and a supermajority vote of the Initial Board to
          enter into contracts for the initial transition of powers.
          No contracts will be binding on the Corporation unless it
          freely, voluntarily and publicly enters into them; it is
          not bound by contracts NSI creates with anyone else.  The
          critical contracts that specify how powers are to be
          transitioned into the New IANA will be posted for public
          review and comment, BEFORE being agreed to, so that the
          most egregious provisions can be modified by public
          pressure rather than being fully settled in smoke-filled
          rooms.


>      (e) The Corporation shall not knowingly apply any standard
>      or policy in a manner that it knows will disproportionately
>      and unjustifiably destroy a substantial property or
>      contractual right of a particular party.  ...


This is an "NSI protection clause".  First NSI will sign a contract
with the US Government that grants it .COM into perpetuity (with USG
Justice Dept. supervision of course!), and possibly eliminates the
competition that .COM could encounter, or puts limits on the timing or
number of competing domains.  Then IANA is bound to not "destroy a
contractual right".  Thus NSI grabs control in private meetings with
USG, and the elected board members of IANA are required to uphold
the results of this backroom dealing.


NSI also claims *property* rights in the current domain database --
despite the clear provisions in the NSI Cooperative Agreement that say
the government owns it -- and in the software that was paid for by
public tax money and the monopoly fees of Internet users.  This
provision would prevent IANA from doing anything that would threaten
these claimed "rights".


This clause should go right out the window.  Eliminate it totally.


> >      Section 21. RIGHTS OF INSPECTION
> >
> >      Every Director shall have the right at any reasonable time
> >      to inspect and copy all books, records and documents of
> >      every kind except where confidentiality would be violated,
> >      and to inspect the physical properties of the Corporation.


Remove "except where confidentiality would be violated".  It is an
undefined concept, usable by the Corporation when it wants to prevent
a Director from examining the operations of the Corporation.  For
example, a contract between New IANA and NSI (or the contract between
the USG and NSI which another part of the bylaws makes IANA follow)
could be deemed to be confidential, preventing even publicly elected
Directors from seeing the terms on which the Corporation can make
domain name policy.  Directors should be able to see every aspect
and every document of the organization that they are responsible for,
and in authority over.  This provision would give them responsibility
without authority.


Article VII: Committees, Section 1:


>                                                               Each
> committee shall keep regular minutes of its proceedings and shall
> report the same to the Board from time to time, as the Board may
> require.


Committee meetings will be where the actual work of the Board gets
done.  The bylaws do not require that committee meetings be published
in advance, be open to the public, or that the minutes of the meetings
be available to the public.  General provisions up in Article II
should open full sunshine into those smoke-filled committee rooms, and
every other place where the public business of the IANA is transacted.


Article VII: Committees, Section 3:


>                        Advisory Committees shall have no legal
> authority to act for the Corporation, but shall report their findings
> and recommendations to the Board.


Same comment.  No public access.


>                        ARTICLE XII: AMENDMENTS
>
> Except as otherwise provided in the Articles of Incorporation, the
> Articles of Incorporation or Bylaws of the Corporation may be altered,
> amended, or repealed and new Bylaws adopted only upon action by
> two-thirds (2/3) majority vote of all members of the Board, except
> that these Bylaws shall not be amended until the earlier of (i) June
> 1, 1999, or (ii) such date as all three Supporting Organizations


This is more NSI protection.  Once the provisions that allow NSI to
force the terms are approved in the initial bylaws, and the scheme is
exposed to public outrage, gee!  There's no chance to change the
bylaws for nine months!  Guess NSI gets another nine months of monopoly
protection out of it...


        John