>Return-Path: <[EMAIL PROTECTED]> >Date: Wed, 16 Jun 1999 07:14:06 -0400 (EDT) >To: [EMAIL PROTECTED] >From: [EMAIL PROTECTED] >Subject: BOUNCE [EMAIL PROTECTED]: Non-member submission from [James Love ><[EMAIL PROTECTED]>] > >>From cptech.org!love Wed Jun 16 07:14:04 1999 >Return-Path: <[EMAIL PROTECTED]> >Received: from milan.essential.org(essential.org[216.0.124.12]) (23078 bytes) by >ns1.vrx.net > via sendmail with P:esmtp/D:aliases/T:pipe > (sender: <[EMAIL PROTECTED]>) > id <[EMAIL PROTECTED]> > for <[EMAIL PROTECTED]>; Wed, 16 Jun 1999 07:14:03 -0400 (EDT) > (Smail-3.2.0.100 1997-Dec-8 #2 built 1997-Dec-18) >Received: from milan.essential.org (IDENT:[EMAIL PROTECTED] [216.0.124.12]) > by milan.essential.org (8.9.3/8.9.3) with ESMTP id HAA12485; > Wed, 16 Jun 1999 07:08:49 -0400 >Date: Wed, 16 Jun 1999 07:08:49 -0400 (EDT) >From: James Love <[EMAIL PROTECTED]> >X-Sender: [EMAIL PROTECTED] >To: Esther Dyson <[EMAIL PROTECTED]> >cc: [EMAIL PROTECTED], [EMAIL PROTECTED], > Joe Sims <[EMAIL PROTECTED]>, Mike Roberts <[EMAIL PROTECTED]>, > Geraldine Capdeboscq <[EMAIL PROTECTED]>, > George Conrades <[EMAIL PROTECTED]>, > Greg Crew <[EMAIL PROTECTED]>, > Frank Fitzsimmons <[EMAIL PROTECTED]>, > Hans Kraaijenbrink <[EMAIL PROTECTED]>, > Professor Jun Marai <[EMAIL PROTECTED]>, > "Linda S. Wilson" <[EMAIL PROTECTED]>, > Eugenio Triana <[EMAIL PROTECTED]>, > Mike Roberts <[EMAIL PROTECTED]>, Joe Sims <[EMAIL PROTECTED]>, > [EMAIL PROTECTED], [EMAIL PROTECTED], > Juliana Gruenwald <[EMAIL PROTECTED]>, > John Simons <[EMAIL PROTECTED]>, [EMAIL PROTECTED], > Fred Kempe <[EMAIL PROTECTED]>, > Ralph Nader <[EMAIL PROTECTED]>, > John Richard <[EMAIL PROTECTED]>, > Center for Study of Responsive Law Mike Palmedo <[EMAIL PROTECTED]> >Subject: Re: Letter to Esther Dyson from Ralph Nader and James Love regarding > ICANN >In-Reply-To: <[EMAIL PROTECTED]@esther> >Message-ID: <[EMAIL PROTECTED]> >MIME-Version: 1.0 >Content-Type: TEXT/PLAIN; charset=X-UNKNOWN >Content-Transfer-Encoding: QUOTED-PRINTABLE > >Dear Esther, > >I am in Australia at the moment, and will be back in the office on Monday, >and I'll call then. Thank you very much for you letter. I can assure you >that I am as anxious as anyone to see the Network Solutions monopoly >ended. Our questions or concerns go to ICANN as a institution, and I >appreciate the opportunity to become better informed. =20 > > Jamie Love=20 > >On Tue, 15 Jun 1999, Esther Dyson wrote: > >> Ralph Nader >> P.O. Box 19312 >> Washington, DC 20036 >>=20 >> James Love >> Consumer Project on Technology >> P.O. Box 19367, Washington, DC 20036 >> [EMAIL PROTECTED] >> http://www.cptech.org >>=20 >>=20 >> Dear Ralph and Jamie: >>=20 >> 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.=20 >>=20 >> I hope that my answers below will respond to your concerns. Indeed, I ho= >pe >> that they may persuade you to join us in our fight to remove monopoly fro= >m >> 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 cau= >se >> with us.=20 >>=20 >> Accordingly, I'd like to start by setting some context before answering y= >our >> 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.=20 >>=20 >> 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 calli= >ng >> my office at (212) 924-8800. You can also reach me later this afternoon a= >t >> (202) 979-3863. >>=20 >> Scene-setting >>=20 >> I'd like to set the scene for the answers to your questions by noting tha= >t >> 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 informa= >l >> management of its technical infrastructure, to something more formal and >> predictable, and subject to public (but not directly government) oversigh= >t.=20 >>=20 >> The Initial Board is following the guidelines set forth in the United Sta= >tes >> Government's policy paper of last June (the White Paper), as further >> amplified by the Memorandum of Understanding/Joint Project Agreement ICAN= >N >> signed with the Department of Commerce in November. These documents >> comprise an agenda both important and ambitious, and we are doing our bes= >t >> to work our way through it with the help of public input, several formal >> advisory committees, and the so-called Supporting Organizations that mak= >e >> up ICANN's internal structure. We welcome your input, both now and in th= >e >> future. >>=20 >> The White Paper articulates no Internet governance role for ICANN, and th= >e >> 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.=20 >>=20 >> One important aspect of its mandate is the introduction of competition in= >to >> the business of registering domain names, under an agreement with the US >> Government. In this particular task, naturally enough, it is meeting fier= >ce >> resistance from the private government contractor that has been the monop= >oly >> provider of DNS services, Network Solutions -- a company that has >> transformed itself from an unknown start-up at the time (1992) when it fi= >rst >> 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 t= >hat >> 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.=20 >>=20 >> 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 the= >ir >> 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 consens= >us >> - though not of unanimity. >>=20 >> 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 cla= >ims >> "proprietary" rights in databases and techniques developed under governme= >nt >> contract as a reason for refusing to release information and for expensiv= >e >> 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. =20 >>=20 >> Forgive this lengthy preamble, but I wanted you to understand the origin = >of >> many of the complaints you have been hearing - basically, the effective P= >R >> of a monopolist seeking to postpone the inevitable arrival of competition >> fostered by ICANN. Since you have not been actively involved in this proj= >ect >> over the several years it has been underway, you may not appreciate the >> power struggles involved=85but given your long history of fighting monopo= >ly >> power, I thought it was important to provide you with some background. >>=20 >> 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 list= >en >> 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 serious= >ly; >> our method is to foster and then recognize consensus rather than force it= >=2E >> 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-off= >s >> 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 chair= >man!)=20 >>=20 >> With this background, let me try to respond to your specific questions. >>=20 >> IP issues >>=20 >> On the intellectual property issues, in its White Paper the Department of >> Commerce requested the World Intellectual Property Organization to conduc= >t 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 disput= >e >> resolution mechanisms that could work despite the varying legal regimes t= >hat >> 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. =20 >>=20 >> 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 t= >hat >> 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 i= >t >> noted that it had already implemented some administrative recommendations= >, >> concerning prepayment and contact information, in its standard registrar >> contract.)=20 >>=20 >> The DNSO's input will also be fully subject to the ICANN notice and comme= >nt >> 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 l= >ook >> for consensus before deciding whether and how they should be implemented = >(or >> modified). >>=20 >> The root server system >>=20 >> 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 comp= >lex >> subject. The committee has provided reports on its work at each of the l= >ast >> 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 th= >e >> meantime, ICANN is continuing to administer TLD assignments and related r= >oot >> 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, comme= >nt >> and consensus procedures that precede any ICANN decision that could >> significantly affect the Internet. =20 >>=20 >> Review and recourse=20 >>=20 >> ICANN is a private organization; its actions are fully subject to legal >> review and oversight. Thus, if any action is believed to impair some leg= >al >> right, a complainant would have full recourse to any relevant court. In >> addition, ICANN has a fully developed reconsideration procedure, and is i= >n >> the process of establishing an Independent Review entity to evaluate any >> claim that ICANN has acted inconsistently with its Articles or Bylaws. >>=20 >> Financial issues=20 >>=20 >> The White Paper assumed that, since the private non-profit organization i= >t >> 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 developmen= >t >> activities. Since it is still very early in ICANN's existence, and we ha= >ve >> 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 -- whic= >h >> fee would be paid by the business entities actually making the registrati= >on. >> (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.) >>=20 >> Since ICANN seeks only to recover its costs, we believe the $1 fee will = > be >> adjusted downward as the early organizational expenses are gradually redu= >ced >> and as the number of names registered increases. In addition, if ICANN >> succeeds in fostering competition in the registration process, it is like= >ly >> that the overall consumer price of registrations will come down >> dramatically. Currently, it is set unilaterally by NSI at $70 for a two-y= >ear >> 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. =20 >>=20 >> Finally, ICANN's activities are strictly limited by its Articles and Byla= >ws, >> 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-exemp= >t >> organization, it is also limited by IRS regulations in any expenditure of >> funds aimed at influencing legislation. If you would like additional deta= >ils >> on the expenses we foresee for the fiscal year beginning July 1 (just un= >der >> $6 million), you can find a comprehensive budget document posted at our >> Website for public viewing. >>=20 >> The role of the Initial/Interim Board >>=20 >> 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 t= >he >> White Paper by having an "initial" Board rather than an "interim" Board. >> This argument is pointless. The White Paper calls for the consensus entit= >y >> that became ICANN to "appoint, on an interim basis, an initial Board of >> Directors (an Interim Board)" (emphasis in original]. This "initial" Boa= >rd >> was to serve until it established "a system of electing a Board of >> Directors." Thus, the terms "initial" and "interim" were clearly synonym= >ous >> in the White Paper. >>=20 >> 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 necessar= >y >> to create an elected Board going forward. The White Paper specifically >> called on the "initial" Board to formulate the necessary consensus polici= >es >> to allow competition to be introduced as quickly as possible. These >> policies included "qualifications for domain name registries and domain n= >ame >> registrars" and "policies for the addition of TLDs." Finally, in the Whi= >te >> Paper, the United States government said it would ask WIPO to "develop a = >set >> of recommendations for trademark/ domain name dispute resolutions and oth= >er >> issues to be presented to the Interim Board for its consideration." >>=20 >> The current Board, which I assure you would very much like keep its tenur= >e >> 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 principa= >l >> objectives of the White Paper and of ICANN itself. >>=20 >> Having said all this, I would like to mention that we have made significa= >nt >> progress toward a fully elected Board. The first of the three Supporting >> Organizations responsible for electing nine of the 19 Board members is no= >w >> 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 hop= >e >> that they will provide their three Directors each by early next year. >> ICANN's Membership Advisory Committee has presented recommendations to th= >e >> ICANN Board dealing with the establishment of the At Large membership tha= >t >> 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 proces= >s >> that will produce fully half of the Board be fair, open, resistant to fra= >ud >> or capture, and as widely inclusive of the full range of users and others >> affected by ICANN policies as possible.=20 >>=20 >> Conclusion >>=20 >> Thus, we have made much progress on many fronts, thanks largely to enorm= >ous >> volunteer contributions of many, many people, from Directors (who are not >> compensated other than out-of-pocket expenses and cannot be elected to th= >e >> 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= >=2E >> 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 NS= >I >> work with the rest of the community to make this obviously necessary >> transition to open competition and policy-based management of the Interne= >t's >> vital technical infrastructure. Still, we will persevere, and we will su= >cceed. >>=20 >> I hope this is responsive to your questions. Perhaps you could help us t= >o >> generate even more momentum behind the forces of Internet competition and >> move away from monopoly as quickly as possible. We would greatly appreci= >ate >> your assistance in this effort. If you have further questions, please ca= >ll >> 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. >>=20 >> Yours truly, >>=20 >>=20 >> Esther Dyson >> Interim Chairman, Internet Corporation for Assigned Names and Numbers (IC= >ANN)=20 >>=20 >>=20 >> 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 >> > [EMAIL PROTECTED] >> > http://www.cptech.org >> > >> > >> >Esther Dyson >> ><[EMAIL PROTECTED]> >> >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 [EMAIL PROTECTED], by telephone 202.387.8030, >> >by fax at 202.234.5176. CPT web page is http://www.cptech.org >> > >>=20 >>=20 >>=20 >>=20 >>=20 >>=20 >> Esther Dyson=09=09=09Always make new mistakes! >> chairman, EDventure Holdings >> interim chairman, Internet Corp. for Assigned Names & Numbers >> [EMAIL PROTECTED] >> 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 >>=20 >> High-Tech Forum in Europe: 24 to 26 October 1999, Budapest >> PC Forum: March 12 to 15, 2000, Scottsdale (Phoenix), Arizona=20 >> Book: "Release 2.0: A design for living in the digital age"=20 >>=20 >>=20 >>=20 > >------------------------------- >James Love=20 >Center for Study of Responsive Law | Consumer Project on Technology=20 >P.O. Box 19367, Washington, DC 20036 | http://www.cptech.org >Voice 202/387-8030 | Fax 202/234-5176 | [EMAIL PROTECTED] > > -- [EMAIL PROTECTED] [EMAIL PROTECTED] Remember, amateurs built the Ark. Professionals built the Titanic.
