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IP: House Commerce letters to ICANN, Commerce Dept
From: Dave Farber <farber () cis upenn edu>
Date: Fri, 25 Jun 1999 09:58:27 -0400
From: Declan McCullagh <declan () well com> Full text of letters from House Commerce to ICANN and Commerce Dept below. My article from last week on the subject: http://www.wired.com/news/news/politics/story/20293.html Excerpts:4. A detailed summary from each ICANN interim board member recounting the sequence of events that preceded the person's acceptance of membership on ICANN's interim board. This summary should include, but is not limited to, answers to the following questions a. Who contacted the interim board member regarding the possibility of serving on ICANN's interim board? b. Who extended the invitation for membership on the interim board to the interim board member in question?a. Before imposing a $1 per domain name registration fee, did ICANN conduct, or have conducted on its behalf, a legal analysis of its authority to impose such a fee? If ICANN did conduct such a legal analysis, please provide all records related to the aforementioned legal analysis. If ICANN has-Declan *********** From: [name deleted]@mail.house.gov To: Declan McCullagh <declan () well com> Subject: RE: ICANN....House COmmerce Committee Date: Tue, 22 Jun 1999 13:18:10 -0400 here they are..... Internet Corporation For Assigned Names and Numbers June 22, 1999 The Honorable William M. Daley Secretary of Commerce U.S. Department of Commerce 14th Street at Constitution Avenue, N.W. Washington, DC 20230 Dear Secretary Daley: I am writing to express my concern about recent steps taken by the Internet Corporation for Assigned Names and Numbers ("ICANN") as part of its role in the transition to privatize management of the Internet's Domain Name System ("DNS"). The Committee has been following closely the evolution of the DNS and has supported the efforts to privatize the management of this essential element of the Internet. I welcomed the call in the Department of Commerce's White Paper to create a new corporation "governed on the basis of a sound and transparent decision making-process, which protects against capture by a self-interested faction." Additionally, since your Department's entry into its Memorandum of Understanding ("MOU") with ICANN in November 1998, Committee staff has met regularly with Department of Commerce officials and other interested parties to discuss the ongoing activities associated with the transfer of the DNS from the public sector to the private sector. As you may recall, in October of last year I wrote you and Ira Magaziner, then Senior Advisor to the President for Policy Development, requesting information about your knowledge of the selection of ICANN's interim board members. Now, as ICANN's interim board begins to undertake formation of policy that will have far-reaching consequences for Internet users, domain name holders and companies offering domain name registration services, I remain troubled about the manner in which the interim board members were selected, and have new questions about the manner in which the interim board is operating. I also am greatly concerned about the interim board's imposition of a $1 per domain name registration fee and the setting of highly regulatory accreditation requirements for those who wish to offer domain name registration services. Such decisions likely exceed the authority that the White Paper originally contemplated for the private organization whose role ICANN now is attempting to fulfill. Rather than promote the Internet's evolution, ICANN's policies actually may jeopardize the continued stability of the underlying systems that permit millions of people to use, enjoy and transact business on the Internet. Moreover, I understand that during the most recent ICANN board meeting in Berlin last month, the interim board reportedly threatened to terminate the authority of the incumbent domain name registrar - Network Solutions, Incorporated ("NSI") - to continue registering domain names if NSI fails to enter into a registrar accreditation agreement with ICANN by June 25, 1999. What makes this situation especially distressing is that an official from the Department of Commerce's National Telecommunications and Information Administration ("NTIA"), who was present at the meeting, failed to discourage such a drastic measure. Your Department's White Paper called for a consensus-based approach to achieving privatization of the DNS. I fail to see how such threats will lead to this goal. The governance model being formed for the management of the DNS likely will set the precedent for future efforts to establish a governance structure in other critical areas of the Internet. Consequently, it is vitally important, not only for the future stability of the DNS, but for all future Internet governance efforts, that the procedures for the establishment of governance be fully transparent, democratic and open. Therefore, in order to assist the Committee in its review of the present state of the transition of the Internet DNS from the public sector to the private sector, as well as to better understand the your Department's oversight of ICANN, I would like to learn more about the Department of Commerce's actions and decisions in this situation. Accordingly, pursuant to Rules X and XI of the U.S. House of Representatives, I request that the Department of Commerce provide the following information to the Committee by July 6, 1999: 1. As stated above, it has been reported that during the most recent ICANN board meeting in Berlin last month, the interim board threatened to terminate the authority of NSI to continue registering domain names if NSI fails to enter into a registrar accreditation agreement with ICANN by June 25, 1999. Regarding this reported exchange during ICANN's board meeting: a. Did a member of ICANN's interim board threaten to terminate the authority of NSI to continue registering domain names if NSI fails to enter into a registrar accreditation agreement with ICANN by June 25, 1999? If so, please identify the interim board member in question. b. Why did the NTIA official present at the meeting fail to discourage such a drastic measure by ICANN? c. Does ICANN currently possess the authority to terminate the authority of NSI to register domain names? 2. Please answer the following: a. Did ICANN consult with the Department of Commerce regarding ICANN's decision to impose a $1 per domain name registration fee? b. Did the Department of Commerce conduct any legal analysis relating to ICANN's authority to impose a $1 per domain name fee? If the Department of Commerce did conduct such a legal analysis, please provide all records relating to the aforementioned legal analysis. If the Department of Commerce did not conduct such a legal analysis, please provide a detailed legal analysis of ICANN's authority to impose a $1 per domain name fee, including but not limited to the following questions: i. Is it the legal opinion of the Department of Commerce that ICANN is legally empowered to impose such a fee? ii. If so, does ICANN derive the authority to impose a $1 per domain name registration fee from its MOU with the Department of Commerce? c. Does the Department of Commerce approve of ICANN imposing such a fee? 3. A detailed legal analysis of: a. The Department of Commerce's authority to empower ICANN; b. The nature and scope of oversight authority available to the Department of Commerce under its MOU with ICANN; and c. Whether the Department of Commerce's cooperative agreement with NSI requires NSI to sign a registrar accreditation agreement with ICANN. 4. Records of all communications (whether written, electronic or oral) between the Department of Commerce (or its agents or representatives) and ICANN (or its agents or representatives), including but not limited to all records relating to such communications, regarding: a. Negotiations or other discussions regarding the transfer of control of the root system to ICANN or an ICANN-affiliated entity; b. Negotiations or other discussions regarding future agreements relating to the DNS between ICANN and the Department of Commerce (excluding records of communications provided in response to request 4.a. above); c. The terms of ICANN's registrar accreditation agreement, including but not limited to the imposition of the $1 per domain name registration fee; d. Termination or alteration of the Department of Commerce's cooperative agreement with NSI; and e. Attempts to persuade or force NSI into entering a registrar accreditation agreement with ICANN, or NSI's refusal to enter into the aforementioned agreement. 5. All records relating to the proceedings of the Government Advisory Committee to ICANN. For the purposes of responding to the above requests, the terms "records," "relating" and "regarding" should be interpreted in accordance with the Attachment to this letter. Should you have any questions regarding this request, please contact me, or have your staff contact Eric Link, Committee Counsel, or Paul Scolese, Committee Professional Staff Member, at (202) 225-2927. Sincerely, Tom Bliley Chairman cc: The Honorable John D. Dingell Ranking Minority Member _____________________________________________________ Ms. Esther Dyson Interim Chairman Internet Corporation For Assigned Names and Numbers 4676 Admiralty Way, Suite 330 Marina del Rey, CA 90292 Dear Ms. Dyson: I am writing to express my concern about recent steps taken by the Internet Corporation for Assigned Names and Numbers ("ICANN") as part of its role in the transition to privatize management of the Internet's Domain Name System ("DNS"). The Committee has been following closely the evolution of the DNS and has supported the efforts to privatize the management of this essential element of the Internet. I welcomed the call in the Department of Commerce's White Paper to create a new corporation "governed on the basis of a sound and transparent decision making-process, which protects against capture by a self-interested faction." Additionally, since the Department of Commerce's entry into its Memorandum of Understanding ("MOU") with ICANN in November 1998, Committee staff has met regularly with officers of ICANN and other interested parties to discuss the ongoing activities associated with the transfer of the DNS from the public sector to the private sector. As you may recall, in October of last year I wrote Secretary of Commerce William M. Daley and Ira Magaziner, then Senior Advisor to the President for Policy Development, requesting information about their knowledge of the selection of ICANN's interim board members. Now, as ICANN's interim board begins to undertake formation of policy that will have far-reaching consequences for Internet users, domain name holders and companies offering domain name registration services, I remain troubled about the manner in which the interim board members were selected, and have new questions about the manner in which the interim board is operating. I also am greatly concerned about the interim board's imposition of a $1 per domain name registration fee, the funding of a rather large ($5.9 million) ICANN budget through such a fee, and the setting of highly regulatory accreditation requirements for those who wish to offer domain name registration services. Such decisions likely exceed the authority that the White Paper originally contemplated for the private organization whose role ICANN now is attempting to fulfill. Rather than promote the Internet's evolution, your organization's policies actually may jeopardize the continued stability of the underlying systems that permit millions of people to use, enjoy and transact business on the Internet. Moreover, I understand that during the most recent ICANN board meeting in Berlin last month, the interim board reportedly threatened to terminate the authority of the incumbent domain name registrar - Network Solutions, Incorporated ("NSI") - to continue registering domain names if NSI fails to enter into a registrar accreditation agreement with ICANN by June 25, 1999. What makes this situation more distressing is the simple fact that these steps are being decided upon and implemented by an unelected board that conducts portions of its official meetings in private. In this light, I do not believe the process followed by ICANN's interim board during its recent work toward the privatization of the DNS has been sufficiently transparent. The governance model being formed for the management of the DNS likely will set the precedent for future efforts to establish a governance structure in other critical areas of the Internet. Consequently, it is vitally important, not only for the future stability of the DNS, but for all future Internet governance efforts, that the procedures for the establishment of governance be fully transparent, democratic and open. Therefore, in order to assist the Committee in its review of the present state of the transition of the Internet DNS from the public sector to the private sector, as well as to satisfy unanswered questions regarding the selection of the interim board's members, I would like to learn more about ICANN's origin, decisions and operational authority. Accordingly, pursuant to Rules X and XI of the U.S. House of Representatives, I request that ICANN provide the following information to the Committee by July 6, 1999: 1. Please answer the following: a. Before imposing a $1 per domain name registration fee, did ICANN conduct, or have conducted on its behalf, a legal analysis of its authority to impose such a fee? If ICANN did conduct such a legal analysis, please provide all records related to the aforementioned legal analysis. If ICANN has not conducted such a legal analysis, please provide a detailed legal analysis of the source and limits of ICANN's authority to impose a $1 per domain name registration fee. b. Has ICANN conducted, or had conducted on its behalf, a legal analysis of its authority to terminate NSI's authority to register domain names? If ICANN has conducted such a legal analysis, please provide all records related to the aforementioned legal analysis. If ICANN has not conducted such a legal analysis, please provide a detailed legal analysis of the source and limits of ICANN's authority to terminate NSI's authority to register domain names. c. Has ICANN conducted, or had conducted on its behalf, a legal analysis of its authority to retain intellectual property rights over registrar data? If ICANN has conducted such a legal analysis, please provide all records related to the aforementioned legal analysis. If ICANN has not conducted such a legal analysis, please provide a detailed legal analysis of the source and limits of ICANN's authority to retain intellectual property rights over registrar data. d. Are any ICANN interim board members compensated by ICANN? For every interim board member who is compensated, please identify the interim board member in question and indicate the amount of compensation. e. Regarding ICANN's "Transition Budget for Fiscal Year 1999-2000": i. Who drafted this budget? ii. How did ICANN arrive at funding levels in this budget? Please provide an explanation of the underlying rationales that served as the basis for the budget's funding levels. f. What are the circumstances under which ICANN's interim board will be replaced by an elected board? Please provide a reasonable estimate of when it is anticipated that this event will take place. 2. A detailed explanation of ICANN's decision to deny the general public access to portions of its meetings and the meetings of its supporting organizations. 3. A detailed explanation of ICANN's decision to seek authority solely over generic Top Level Domains ("TLDs"), and not over country code TLDs, many of which are commercial in nature and accept registration by all individuals. 4. A detailed summary from each ICANN interim board member recounting the sequence of events that preceded the person's acceptance of membership on ICANN's interim board. This summary should include, but is not limited to, answers to the following questions: a. Who contacted the interim board member regarding the possibility of serving on ICANN's interim board? b. Who extended the invitation for membership on the interim board to the interim board member in question? c. To whom did the interim board member report his or her acceptance of the aforementioned invitation? d. Please provide all records related to the consideration and selection of each interim board member. 5. All executed registrar accreditation agreements and related records. 6. Records of all communications (whether written, electronic or oral) between ICANN (or its agents or representatives) and the Executive branch of the Federal government (or its agents or representatives, including but not limited to the Executive Office of the President), including but not limited to all records relating to such communications, regarding: a. Negotiations or other discussions regarding the transfer of control of the root system to ICANN or an ICANN-affiliated entity; b. Negotiations or other discussions regarding future agreements relating to the DNS between ICANN and the Department of Commerce (excluding records of communications provided in response to request 6.a. above); c. The terms of ICANN's registrar accreditation agreement, including but not limited to the imposition of the $1 per domain name registration fee; d. Termination or alteration of the Department of Commerce's cooperative agreement with NSI; and e. Attempts to persuade or force NSI into entering a registrar accreditation agreement with ICANN, or NSI's refusal to enter into the aforementioned agreement. 7. All records relating to funding ICANN has solicited or received from: a. For-profit entities; b. Not-for-profit entities; and c. Individuals. 8. All records relating to the proceedings of any meeting of ICANN's interim board, or any of ICANN's supporting organizations, to which the general public has been denied access. In addition to the information requested above, I also ask that you timely submit to the Committee all records relating to the proceedings of any future meeting of ICANN's interim board, or any of ICANN's supporting organizations, to which the general public will be denied access, until such time as the Committee withdraws this request. For the purposes of responding to the above requests, the terms "records," "related," "relating" and "regarding" should be interpreted in accordance with the Attachment to this letter. Should you have any questions regarding this request, please have your staff contact Eric Link, Counsel, or Paul Scolese, Professional Staff Member, at (202) 225-2927. Sincerely, Tom Bliley Chairman cc: The Honorable John D. Dingell Ranking Minority Member The Honorable William M. Daley Secretary, Department of Commerce -------------------------------------------------------------------------- POLITECH -- the moderated mailing list of politics and technology To subscribe: send a message to majordomo () vorlon mit edu with this text: subscribe politech More information is at http://www.well.com/~declan/politech/ --------------------------------------------------------------------------
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