FC: ICANN attorney replies to Politech post on "self-regulation's end"

[Declan McCullagh <declan () well com>]

Previous Politech message:

"Michael Geist on ICANN, Congress, end of 'self-regulation'"
http://www.politechbot.com/p-03653.html

Joe Sims is ICANN's chief outside counsel.

-Declan

---

To: declan () well com
Subject: Michael Geist's column
From: "Joe Sims" <jsims () JonesDay com>
Date: Fri, 14 Jun 2002 11:03:28 -0400

Of course, Geist has it all wrong.  I hope you will consider publishing 
this response.

The notion that not enough happens at ICANN in public, and that the answer 
to ICANN's problems is more transparency, illustrates a profound lack of 
understanding about what ICANN really does, and how it really does 
it.  Prof. Geist is not the only one that doesn't get it, but since he has 
the ability to publish columns, it is probably worth while trying to 
correct his misunderstanding.

Contrary to Prof. Geist's assertions, ICANN is not a self-regulatory 
body.  It was never intended to be a self-regulatory body.  It was intended 
to be a forum for the possible discovery of consensus solutions to global 
issues related to the DNS -- a way, quite frankly, for national governments 
to find a place for the resolution of global DNS issues that did not 
require a new treaty organization.  It is true that its original structure 
called for half its Board to be selected by a general At Large membership 
of some kind, but that was certainly not the consensus view of the Internet 
community at that time.  Prof. Geist, having not been part of the 
discussions with the US Government that produced that construction, is 
undoubtedly unaware of the fact that no one involved in that decision, and 
I include those in the US Government (feel free to ask them) was convinced 
that such an approach was really workable.  The ICANN organizers wanted to 
insert the words "if feasible;" the US Government position at the time, for 
reasons I leave to the reader to imagine, was "we'll figure out how to do 
it later."  The then brand-new Board of ICANN, without the assistence of 
Jon Postel who had died a month earlier, acquiesced to this position, 
notwithstanding a quite clear concern that it might not be possible to make 
it work.  In hindsight, I am quite sure most regret this decision.

We now have almost 4 years of experience by which to test the concepts on 
which the original construction rested, and we actually know some things 
that we did not know then.  We know that the notion of global on-line 
elections is fraught with problems that are too complicated for ICANN to be 
on the bleeding edge on innovation in this area.  We know that there is no 
consensus in the ICANN community on exactly how the public interest should 
be represented in ICANN's structure, notwithstanding the insistence of 
those like Prof. Geist that there is only one possible solution.  We know 
that part of the reason there is no consensus is that those who insist on 
direct elections of Board members have refused to consider any other 
alternative way of representing the public interest; this religious 
approach is not conducive to compromise or consensus.

We also know that a purely private organization, without the support and 
involvement of governments from around the world, will not be able to carry 
out thes mission assigned to ICANN (if you believe that mission requires 
the agreed participation of all the relevant infrastructure 
providers).  ICANN has no guns, and no soldiers; it has no coercive 
power.  It can succeed only if the relevant portions of the community 
voluntarily agree that they want to participate and make it succeed.  To 
date, that has not happened.  We can argue all we want about why it has not 
happened, but it is clear that the reason is not the failure to hold 
on-line elections.  The fact is that the root server operators, the address 
registries, and the ccTLD registries must be persuaded to come to the ICANN 
table, and it will not help that process to make ICANN a less stable, less 
predictable organization.

Finally, we know (or at least some of us strongly believe) that the path to 
ICANN success is an appropriate public/private partnership, with the 
private sector and global governments working together within an ICANN 
structured to accept input from all but also able to make effective 
decisions in a timely way.  We are clearly on the path to such an ICANN, 
and I hope we will take another step toward that goal at the meeting in 
Bucharest later this month.

The notion that government interest in ICANN is heightened by the failure 
to adopt some form of global elections is laughably naive.  Governments are 
properly interested in ICANN because the Internet is increasingly critical 
to the well-being, social and commercial, of their citizens, and because 
what ICANN is responsible for is critical to the continued stable operation 
of the Internet.  This would be true whether all or none of ICANN's 
directors were elected by the general public.  And it is this fact that is 
driving the process of gaining the proper level of government participation 
in ICANN, nothing else.  This is the real world; Prof. Geist insists on 
occupying some academic construct of a world.  This longing for some 
utopian construct is not useful in trying to reform ICANN into a body that 
does reflect, as best it can be done, the views and concerns of the entire 
Internet provider and user community.



Joe Sims
Jones Day Reavis & Pogue
51 Louisiana Avenue NW
Washington, D.C. 20001
Direct Phone:  1.202.879.3863
Direct Fax:  1.202.626.1747
Mobile Phone:  1.703.629.3963

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