IP: Esther's reply to Re: Letter to Esther Dyson from Ralph Nader and James Love regarding ICANN

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

> Date: Tue, 15 Jun 1999 11:51:55 -0400
> To: farber () cis upenn edu
> From: Brian McWilliams <brian () PC-radio com>
> Subject: Fwd: Re: Letter to Esther Dyson from Ralph Nader and James
>   Love regarding ICANN
>
> Dave,
>
> See below.  Brief interview with Dyson today (Tues.) about the letter on InternetNews Radio at
>
> http://www.internetnewsradio.com
>
> Brian
>
>
> > To: love () cptech org
> > From: edyson () edventure com (Esther Dyson)
> > Subject: Re: Letter to Esther Dyson from Ralph Nader and James Love
> >   regarding ICANN
> > Cc: list () ifwp org, pbrewster () alexanderogilvy com,
> >         "Joe Sims" <Joe_Sims () jonesday com>,
> >         Mike Roberts <mmr () darwin ptvy ca us>,
> >         Geraldine Capdeboscq <geraldine.capdeboscq () bull fr>,
> >         "George Conrades" <conrades () akamai com>,
> >         Greg Crew <gregcrew () iaccess com au>,
> >         Frank Fitzsimmons <fitzsimmon () dnb com>,
> >         Hans Kraaijenbrink  <h.kraaijenbrink () kpn com>,
> >         Professor Jun Marai <junsec () wide ad jp>,
> >         "Linda S. Wilson" <linda_wilson () radcliffe edu>,
> >         Eugenio Triana <etrigar () teleline es>,
> >         Mike Roberts <mmr () darwin ptvy ca us>,
> >         "Joe Sims" <Joe_Sims () jonesday com>, <brian () PC-radio com>,
> >         jeri () nytimes com, Juliana Gruenwald <jgruenwald () njdc com>,
> >         John Simons <John.Simons () news wsj com>, Paul.Taylor () ft com,
> >         Fred Kempe <Fred.Kempe () news wsj com>
> > Date: Tue, 15 Jun 1999 10:18:32 -0400
> > Message-ID: <19990615141832906.AAA137 () gromit edventure com@esther>
> > X-UIDL: 56de52fd47b26bfb2f5f9a9591ce5e63
> >
> > Ralph Nader
> > P.O. Box 19312
> > Washington, DC 20036
> >
> > James Love
> > Consumer Project on Technology
> > P.O. Box 19367, Washington, DC 20036
> > love () cptech org
> > http://www.cptech.org
> >
> >
> > Dear Ralph and Jamie:
> >
> > Thank you both for your letter of June 11.  The questions you ask are
> > legitimate, and we have legitimate answers to them.  What is illegitimate is
> > the motivation of some of the people who keep asking the same questions
> > without paying attention to the answers.
> >
> >  I hope that my answers below will respond to your concerns. 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. As a longtime
> > champion of individual rights and against monopolies, you hold common cause
> > with us.
> >
> > Accordingly, I'd like to start by setting some context before answering your
> > specific questions.  My response is intended not as an attack against
> > anyone, but as a defense against attacks which are hindering us at ICANN
> > from doing the tasks for which we were created.
> >
> > As it happens, I'll be in Washington today (Tuesday), and I'd be happy to
> > meet with either or both of you. Please let me know by e-mail or by calling
> > my office at (212) 924-8800. You can also reach me later this afternoon at
> > (202) 979-3863.
> >
> > Scene-setting
> >
> > I'd like to set the scene for the answers to your questions by noting that
> > ICANN is a newly minted organization with many of its organizational
> > processes still under way. It was created primarily in response to the
> > Internet's extraordinary growth, which required a transition from informal
> > management of its technical infrastructure, to something more formal and
> > predictable, and subject to public (but not directly government) oversight.
> >
> > The Initial Board is following the guidelines set forth in the United States
> > Government's policy paper of last June (the White Paper), as further
> > amplified by the Memorandum of Understanding/Joint Project Agreement ICANN
> > signed with the Department of Commerce in November.  These documents
> > comprise an agenda both important and ambitious, and we are doing our best
> > to work our way through it with the help of public input, several formal
> > advisory  committees, and the so-called Supporting Organizations that make
> > up ICANN's internal structure.  We welcome your input, both now and in the
> > future.
> >
> > The White Paper articulates no Internet governance role for ICANN, and the
> > Initial Board shares that (negative) view.  Therefore, ICANN does not
> > "aspire to address" any Internet governance issues; in effect, it governs
> > the plumbing, not the people. It has a very limited mandate to administer
> > certain (largely technical) aspects of the Internet infrastructure in
> > general and the Domain Name System in particular.
> >
> > One important aspect of its mandate is the introduction of competition into
> > the business of registering domain names, under an agreement with the US
> > Government. In this particular task, naturally enough, it is meeting fierce
> > resistance from the private government contractor that has been the monopoly
> > provider of DNS services, Network Solutions -- a company that has
> > transformed itself from an unknown start-up at the time (1992) when it first
> > entered into a contract with the National Science Foundation, into a
> > subsidiary of a large privately-owned government contractor today, with a
> > market value of over $2 billion for its own publicly traded stock [NSOL].
> > Given this history, and the wealth that has been created through its
> > administration of those government contracts, NSI is in no hurry to see that
> > monopoly eroded.  Since this very goal is a principal short-run objective of
> > ICANN, NSI has apparently concluded that its interests are not consistent
> > with ICANN's success. Thus it has been funding and otherwise encouraging a
> > variety of individuals and entities to throw sand in the gears whenever
> > possible, from as many directions as possible.
> >
> > Of course, "I want to protect my monopoly" is hardly an attractive slogan,
> > and so NSI uses the language of democracy instead. In addition, it
> > encourages and supports others who have a variety of reasons -- economic,
> > philosophical or political -- to be unhappy with the way the community
> > consensus has formed.  Of course, many of these people are sincere in their
> > concerns about the transparency of ICANN's operations and their interest in
> > fostering public debate about its activities - as you are.  But ICANN's
> > goals and its actions are in fact the result of public debate and consensus
> > - though not of unanimity.
> >
> > NSI's rhetoric is also quite inconsistent with its conduct.  The company
> > operates under the cloak of nondisclosure agreements covering not just
> > technical and commercial information, but also the experiences of the
> > ICANN-accredited registrars now attempting to open up the domain-name
> > registration business to competition.  Furthermore, Network Solutions claims
> > "proprietary" rights in databases and techniques developed under government
> > contract as a reason for refusing to release information and for expensive
> > license fees. The nondisclosure agreements it imposes on competing
> > registrars are so onerous that many who wish to participate in ICANN's
> > competition initiative cannot do so without permanently restricting their
> > ability to compete in this space in the future.
> >
> > Forgive this lengthy preamble, but I wanted you to understand the origin of
> > many of the complaints you have been hearing - basically, the effective PR
> > of a monopolist seeking to postpone the inevitable arrival of competition
> > fostered by ICANN. Since you have not been actively involved in this project
> > over the several years it has been underway, you may not appreciate the
> > power struggles involved…but given your long history of fighting monopoly
> > power, I thought it was important to provide you with some background.
> >
> > Now of course, there are many participants in this debate who are not NSI
> > agents, and who have honestly differing views about particular issues.
> > Since ICANN is a consensus, non-governmental body, we are charged to listen
> > to all such views and debate them, and eventually we reach a consensus
> > position.  As a non-elected initial board, we take this duty very seriously;
> > our method is to foster and then recognize consensus rather than force it.
> > This has certainly been the case to date: Every policy developed in ICANN
> > has been the product of a comprehensive notice and comment process, and
> > every effort has been made to reflect in ICANN policies the consensus
> > position to the extent we can determine it.  Of course, consensus is not
> > unanimity, and there are people of good faith who disagree with certain
> > specific ICANN policies. We try hard to explain the reasons and trade-offs
> > for each decision. In the end, we realize we can achieve legitimacy only if
> > a substantial number of those affected agree that we are making the right
> > compromises most of the time.  (I myself do not agree with every facet of
> > every ICANN decision, which is why ICANN has a board and not just a chairman!)
> >
> > With this background, let me try to respond to your specific questions.
> >
> > IP issues
> >
> > On the intellectual property issues, in its White Paper the Department of
> > Commerce requested the World Intellectual Property Organization to conduct a
> > study for submission to ICANN  concerning how to operate the domain name
> > system so as to minimize  conflicts with trademark laws throughout the
> > world.  These issues include the need for and scope of alternative dispute
> > resolution mechanisms that could work despite the varying legal regimes that
> > control the use and protection of trademarks and similar intellectual
> > property on the global Internet; the desirability of special rules for
> > so-called "famous names;" and the intellectual property issues raised by the
> > possible addition of new Top-Level Domains (beyond .com, .net and .org).
> > WIPO led a 10-month study, held 15 public meetings with more than 1300
> > participants, and ultimately produced a set of recommendations that it
> > transmitted to ICANN this April.
> >
> > At its meeting in Berlin in May, ICANN considered the WIPO report and
> > recommendations, and the many public comments (both online and in-person)
> > about them.  Ultimately, the Board endorsed WIPO's call for consistent
> > administrative dispute resolution procedures in principle, and referred that
> > recommendation to its newly formed constituent unit, the Domain Name
> > Supporting Organization, for its review and specific implementation
> > recommendations.  It also referred most of the rest of the report to the
> > DNSO for further study, without endorsing a particular direction.  (And it
> > noted that it had already implemented some administrative recommendations,
> > concerning prepayment and contact information, in its standard registrar
> > contract.)
> >
> > The DNSO's input will also be fully subject to the ICANN notice and comment
> > procedures before ICANN's next full-scale  meeting in August, where the
> > board will once again consider them in the light of public comments and look
> > for consensus before deciding whether and how they should be implemented (or
> > modified).
> >
> > The root server system
> >
> > On the root server system, the White Paper called for improvements in the
> > system and ICANN has formed a committee of experts to look into that complex
> > subject.  The committee has provided reports on its work at each of the last
> > two public meetings, and has ensured that the system does not face Y2K
> > vulnerabilities  At this moment, ICANN does not control the root servers,
> > although it expects to do so  by the end of the transition period.  In the
> > meantime, ICANN is continuing to administer TLD assignments and related root
> > server policies in the same manner as they were managed by Dr. Jon Postel
> > before ICANN was formed.  Any policies relating to the root servers under
> > ICANN oversight will, of course, be subject to the standard notice, comment
> > and consensus procedures that precede any ICANN decision that could
> > significantly affect the Internet.
> >
> > Review and recourse
> >
> > ICANN is a private organization; its actions are fully subject to legal
> > review and oversight.  Thus, if any action is believed to impair some legal
> > right, a complainant would have full recourse to any relevant court.  In
> > addition, ICANN has a fully developed reconsideration procedure, and is in
> > the process of establishing an Independent Review entity to evaluate any
> > claim that ICANN has acted inconsistently with its Articles or Bylaws.
> >
> > Financial issues
> >
> > The White Paper assumed that, since the private non-profit organization it
> > called for (now ICANN) would not be funded by governments, it would have to
> > be funded by by the beneficiaries of  its technical and policy development
> > activities.  Since it is still very early in ICANN's existence, and we have
> > no experience to determine the level of resources necessary to carry out its
> > duties, ICANN has (again, after a full process of notice and comment)
> > established a fee not to exceed $1 annually per name registration -- which
> > fee would be paid by the business entities actually making the registration.
> > (You asked by what authority we will charge the fees; we will do so in
> > accordance with a contract that we will execute with each registrar - a
> > group that we still hope will soon include NSI.)
> >
> >  Since ICANN seeks only to recover its costs, we believe the $1 fee will  be
> > adjusted downward as the early organizational expenses are gradually reduced
> > and as the number of names registered increases.  In addition, if ICANN
> > succeeds in fostering competition in the registration process, it is likely
> > that the overall consumer price of registrations will come down
> > dramatically. Currently, it is set unilaterally by NSI at $70 for a two-year
> > registration (NSI does not permit one-year registrations). A
> > competition-spurred reduction would lead to a substantial net consumer
> > benefit due to ICANN's activities.
> >
> > Finally, ICANN's activities are strictly limited by its Articles and Bylaws,
> > and any fees it collects can be used only to offset the costs of these
> > specific activities.  Since ICANN is intended to be a 501(c)(3) tax-exempt
> > organization, it is also limited by IRS regulations in any expenditure of
> > funds aimed at influencing legislation. If you would like additional details
> > on the expenses  we foresee for the fiscal year beginning July 1 (just under
> > $6 million), you can find  a comprehensive budget document posted at our
> > Website for public viewing.
> >
> > The role of the Initial/Interim Board
> >
> > Finally, I would like to consider your question whether ICANN's "interim"
> > Board is making policy decisions it should not be making.  First of all, on
> > semantics:  NSI has promoted the notion that ICANN somehow has violated the
> > White Paper by having an "initial" Board rather than an "interim" Board.
> > This argument is pointless. 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.
> >
> > More importantly, the White Paper made it absolutely clear that the Board
> > (whatever it was called) should deal with a variety of substantive policy
> > issues in addition to establishing the procedures and structures necessary
> > to create an elected Board going forward.  The White Paper specifically
> > called on the "initial" Board to formulate the necessary consensus policies
> > to allow competition to be introduced as quickly as possible.  These
> > policies included "qualifications for domain name registries and domain name
> > registrars" and "policies for the addition of TLDs."  Finally, in the White
> > Paper, the United States government said it would ask WIPO to "develop a set
> > of recommendations for trademark/ domain name dispute resolutions and other
> > issues to be presented to the Interim Board for its consideration."
> >
> > The current Board, which I assure you would very much like keep its tenure
> > as short as possible consistent with doing its duty, has undertaken no
> > policy initiatives not expressly contemplated in the White Paper, or for
> > which there was not some urgency of action necessary to meet the principal
> > objectives of the White Paper and of ICANN itself.
> >
> > Having said all this, I would like to mention that we have made significant
> > progress toward a fully elected Board.  The first of the three Supporting
> > Organizations responsible for electing nine of the 19 Board members is now
> > in existence (the DNSO), and we expect it to provide its three Directors
> > soon.  The other two SO's are currently organizing themselves, and we hope
> > that they will provide their three Directors each by early next year.
> > ICANN's Membership Advisory Committee has presented recommendations to the
> > ICANN Board dealing with the establishment of the At Large membership that
> > will elect nine Directors, and the ICANN staff and counsel are currently
> > figuring out how to implement them.  This latter effort has proven
> > complicated, since it is critical that the membership and election process
> > that will produce fully half of the Board be fair, open, resistant to fraud
> > or capture, and as widely inclusive of the full range of users and others
> > affected by ICANN policies as possible.
> >
> > Conclusion
> >
> > Thus, we have made  much progress on many fronts, thanks largely to enormous
> > volunteer contributions of many, many people, from Directors (who are not
> > compensated other than out-of-pocket expenses and cannot be elected to the
> > Board for two years  following their current service) to hundreds of
> > individuals and entities that want this unique process to work. Our work
> > has, however, been made much more difficult by the direct and indirect
> > opposition of NSI, the primary entity that stands to gain from such delay.
> > I suppose this is an understandable approach for a monopolist threatened by
> > new competition, but it is still disappointing, to me and to the Internet
> > community as a whole.
> > It would have been much simpler, and a lot more pleasant, to have seen NSI
> > work with the rest of the community to make this obviously necessary
> > transition to open competition and policy-based management of the Internet's
> > vital technical infrastructure.  Still, we will persevere, and we will succeed.
> >
> > I hope this is responsive to your questions.  Perhaps you could help us to
> > generate even more momentum behind the forces of Internet competition and
> > move away from monopoly as quickly as possible. We would  greatly appreciate
> > your assistance in this effort.  If you have further questions, please call
> > on me, our Interim President Mike Roberts, or our Chief Counsel Joe Sims. We
> > would be glad to try to answer them at your convenience and to gain your
> > understanding and support.
> >
> > Yours truly,
> >
> >
> > Esther Dyson
> > Interim Chairman, Internet Corporation for Assigned Names and Numbers (ICANN)
> >
> >
> > On  11/06/99 -0400, you wrote:
> > > June 11, 1999
> > >
> > >
> > >                        Ralph Nader
> > >                        P.O. Box 19312
> > >                        Washington, DC 20036
> > >
> > >                        James Love
> > >                        Consumer Project on Technology
> > >                        P.O. Box 19367, Washington, DC 20036
> > >                        love () cptech org
> > >                        http://www.cptech.org
> > >
> > >
> > > Esther  Dyson
> > > <edyson () edventure com>
> > > Chairman
> > > Internet Corporation for Assigned Names and Numbers
> > >
> > >
> > > Dear Ms Dyson,
> > >
> > > Could you tell us the scope of internet governance issues that
> > > the Internet Corporation for Assigned Names and Numbers (ICANN)
> > > aspires to address?  For example, does ICANN seek to make any
> > > decisions regarding allocation of trademark rights to those who
> > > seek domain names?  And will ICANN use its control over root name
> > > servers to block access to any IP address or domain name for any
> > > reason?  If so, could you give us an idea of what those reasons
> > > might be, and how those decisions will be made, and what legal
> > > recourse persons would have regarding ICANN decisions?
> > >
> > > Also, does ICANN seek the authority to levy fees on the use of
> > > domain names?  If so, what are the legally binding limits on the
> > > use of funds from those fees by ICANN?  Under any circumstances
> > > will the ICANN be permitted to use these funds to promote public
> > > policy objectives on broader internet governance issues?
> > >
> > > Finally, is ICANN's interim board making substantive policy
> > > decisions, before a membership is in place?  If so, can you
> > > explain how this start-up procedure is justified given the terms
> > > of your agreement with the United States government?
> > >
> > > You are known for being meticulous.  We await your specific
> > > replies to these questions.
> > >
> > > Thank you.
> > >
> > >
> > > Sincerely
> > >
> > >
> > >
> > > Ralph Nader             James Love
> > >
> > >
> > >
> > > --
> > > James Love, Director, Consumer Project on Technology
> > > I can be reached at love () cptech org, by telephone 202.387.8030,
> > > by fax at 202.234.5176. CPT web page is http://www.cptech.org
> >
> >
> >
> >
> >
> >
> > Esther Dyson                    Always make new mistakes!
> > chairman, EDventure Holdings
> > interim chairman, Internet Corp. for Assigned Names & Numbers
> > edyson () edventure com
> > 1 (212) 924-8800
> > 1 (212) 924-0240 fax
> > 104 Fifth Avenue (between 15th and 16th Streets; 20th floor)
> > New York, NY 10011 USA
> > http://www.edventure.com                    http://www.icann.org
> >
> > High-Tech Forum in Europe:  24 to 26 October 1999, Budapest
> > PC Forum: March 12 to 15, 2000, Scottsdale (Phoenix), Arizona
> > Book:  "Release 2.0: A design for living in the digital age"
>
> __________________________________________________
> Brian S. McWilliams
> Host/Reporter, InternetNews Radio
> internet.com LLC
> Voice: (603) 742-9401
> http://www.internetnewsradio.com
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