Attached is Chairman Bliley's letter of July 28. Please feel free to
contact me if you have any questions or would like comments from someone
with ICANN.
Sincerely,
Joseph S. Sheffo
415-923-1660
==============
August 4, 1999
The Honorable Thomas J. Bliley, Jr.
Chairman
The House Committee on Commerce
2125 Rayburn House Office Building
Washington, D.C. 20515
Dear Chairman Bliley:
I am writing to answer your letter of July 28, 1999, asking for
information about communications between ICANN and the Department of
Justice. As several members noted during the recent hearing of your
Committee at which I was privileged to testify, the creation and operation
of ICANN is a complicated undertaking, and we appreciate any opportunity to
better educate and inform the Congress and the public about what ICANN is
doing and what we hope to achieve.
Your inquiry apparently was prompted by an e-mail message that was
one of many provided to the Committee by ICANN in response to your earlier
letter of June 22. Your statement that the conversation reported in this
e-mail "appear[s] to be highly inappropriate" is puzzling, and appears to be
based on a misunderstanding about the nature of the conversation described
in this message. The right to petition government is constitutionally
protected, and indeed is one of the freedoms that has distinguished the
American form of government. Members of the Board, staff and counsel of
ICANN have had a number of discussions with various members of the executive
and legislative branches of government since ICANN's formation in late 1998.
The common focus of those conversations has been ICANN's mission and
objectives, and the obstacles that remain to accomplishing those objectives.
In this particular case, ICANN's counsel was urging the Department
of Justice, which as part of its official mission is the principal advocate
for competition within the Executive Branch, to urge the more rapid
transition of domain name registration services from a single monopoly
government contractor to a competitive market. The Department's
representatives listened to this request, and agreed to consider it; that
was the entire sum and substance of the conversation. We do not believe
that this exercise of the constitutionally-protected right to petition
government could even arguably be considered inappropriate. Indeed, I
assume you and other members of this Committee receive regular requests to
consider various actions, perhaps even related to this same subject.
As the e-mail in question indicates, this discussion did not involve
the pending antitrust investigation of NSI, which had been ongoing for some
time. But if it had, that would certainly also have been completely
appropriate. ICANN is charged, both by its Memorandum of Understanding with
the Department of Commerce and by a clear Internet community consensus, with
replacing the current non-competitive domain name registration system with a
competitive system, where price, quality of service and other important
criteria relating to domain name registrations are determined by the
marketplace, not by a monopoly provider. The Department of Justice is
charged with enforcing the antitrust laws. One possible avenue from
monopoly to competition in domain name registration services is through
enforcement of the antitrust laws. Thus, it is appropriate for ICANN,
through its counsel, to discuss with representatives of the Department of
Justice ICANN's views of the antitrust enforcement issues associated with
the current monopoly name registration situation, and for ICANN to advocate
antitrust enforcement action if it believes such would be appropriate.
ICANN is entitled to express its views on such subjects, just as any other
person or entity may.
With this background, let me respond on behalf of the Initial Board
of Directors of ICANN to your specific questions.
1. Provide a listing of all communications between the Department of
Justice and ICANN.
We are unable to provide such a listing. We are not aware of any
records of such communications other than the e-mail message previously
provided. Nevertheless, we can state that there have been a number of
discussions between counsel for ICANN and Department of Justice lawyers over
the several months of ICANN's existence. Those conversations have generally
concerned the antitrust and competitive policy issues relating to domain
name registrations. We are aware of no other substantive conversations
between a representative of ICANN and any official or employee of the
Department of Justice.
2. Provide all records relating to such communications.
The Committee is already in possession of all such records.
3. Discuss the ICANN Board's knowledge of, or subsequent authorization
of, the communication by counsel reflected in the e-mail message previously
provided.
To the best of my knowledge, the ICANN Board was not aware of this
particular communication prior to its occurrence. Such communications are
part of the ordinary activities of ICANN's counsel and would not require nor
normally generate prior notification or approval. Questions about the ICANN
Board's reaction to the conversation after the fact appear to be based on
the premise that this communication, or others like it, was somehow
inappropriate; since we do not believe this is the case, we had no reason to
instruct counsel to avoid such communications in the future. In fact, the
Board expects its counsel, in the ordinary course of carrying out his
responsibilities to ICANN and the ICANN Board, to continue to communicate
with Executive Branch agencies, members of the Legislative Branch and their
staffs, and any others with whom such communications are, in his judgment,
useful to support the efforts of ICANN to carry out its responsibilities.
I hope this is responsive to your inquiry. On behalf of ICANN, let
me reiterate that we are committed to carrying out our responsibilities with
respect to the transition of the management of certain aspects of the Domain
Name System from government control to the private sector through a process
that is open and transparent. As a part of this, we are eager to work with
this Committee and its staff to ensure that you have all the information
required to fully understand how this transition is proceeding. As you
know, we have offered to provide periodic briefings to Committee staff on a
bipartisan basis, in the hope of avoiding misunderstandings such as the one
that apparently prompted this particular inquiry. I look forward to working
with the Committee and its staff to ensure that all Members of the Committee
are fully informed about this difficult but important undertaking.
Please let me know if we can provide any further information.
Sincerely,
Esther Dyson
Interim Chairman
cc: The Honorable John D. Dingell, Ranking Member
