At 03:11 PM 9/16/00, Lawrence Lessig wrote: >First, as I would have thought obvious, there is something more than bizarre >about the idea that in the mix of actors in the initial formation of ICANN >-- representatives of the most powerful government in the world, the most >powerful corporations in the world, the most influential law firms in the >world, as well as key internet leaders, such as Postal and Cerf -- the real >power in this game came from two law professors, and a director of a >nonprofit charity. As I said before, I've seen law professors with large >egos in my life, but no one would believe something like this. Hi Larry, To be fair, I don't believe that anyone was accusing the Berkman Center of masterminding the ICANN takeover of the Internet. Rather, through its unique role, it was in a position to have a positive effect on its outcome. Instead, it appears that the Berkman Center valued its continuing role in the process, more than it valued the outcome. >But second, and more to the point, I know first hand what lead to the end of >the IFWP process, as I was part of the negotiations in that process. Of all >the "parties" in that negotiation, Berkman was the last pushing for the >final meeting. We had been asked by NSI and IANA and IFWP's Tamar Frankel to >help broker a deal among these three actors to facilitate a final meeting >within the IFWP framework. Berkman had been, as you will recall, a strong >supporter of the IFWP process over IANA's; Not to quibble, but much of Berkman's early involvement with the IFWP was arranged by Tamar Frankel, with little input from the IFWP Steering Committee (in which I actively participated as a member). Even given my active role, I can not confirm that Berkman favored the IFWP process over IANA's. I simply don't know where Berkman came down on this issue. >I personally had gone to Geneva >to help facilitate the drafting process, and had helped draft a final >statement of principles that was to constitute the source document for the >final meeting. > >Over a weekend in August, I had a series of telephone calls with NSI >representatives and Joe Sims, representing IANA to facilitate a final >agreement on terms for this final meeting. Sims resisted the idea of a >meeting; he wanted to bypass IFWP completely. But he agreed, in what I >believed was good faith, to attempt to negotiate terms on which he would >meet to allow their draft bylaws to be considered with the IFWP draft. > >At a certain point in these negotiations, I was given reason to question Mr. >Sims' good faith. He informed me that he had reached an understanding with >the key members of the IFWP board (he never named the names) that they would >support IANA, and not the IFWP process. Based upon subsequent actions, it is easy to surmise that Joe had reached an agreement with the following members of the IFWP Steering Committee: Mike Roberts -- of Educause, a Washington based non-profit. Mike was the person who first torpedo'd the IFWP Wrap-Up meeting. It is also important to note that, when he did, he had already been secretly tapped as the new ICANN president! Barbara Dooley -- of CIX, a Washington based non-profit. She had originally aligned her entire organization against the IAHC, but changed her stripes the day Mike Roberts torpedo'd the wrap-up meeting. Andy Sernovitz -- of AIM, a Washington based non-profit. He had originally aligned his entire organization against the IAHC, and even gave a scathing testimony to Congress on its dangers. He changed his stripes the day Mike Roberts torpedo'd the wrap-up meeting. NOTE: While I was certainly new to Washington at this point in time, I soon came to suspect that the positions taken by non-profits had less to do with their membership, than the amount of money that was contributed to their coffers in the interest of "special projects." A very interesting research project would be to audit the books of these three non-profits. We already know that they didn't poll their membership before taking their positions on ICANN. What we don't know is who funded their respective positions, and when ;-) >He therefore informed me that there >was no further reason to negotiate, as there was no continuing >organizational support from IFWP for the final meeting. At this stage, >though NSI was strongly pushing for a final meeting as well, NSI decided it >was more prudent simply to enter a negotiation with IANA. IFWP fell into >apparent disarray, as the support from them for the final meeting had been >compromised. This is where Berkman could have provided assistance, but instead, took the easy way out. The IFWP Steering Committee had three votes for a wrap-up meeting, and three times, it passed with a slim majority. The only time the Steering Committee was in disarray, was when the Berkman Center surprised everyone by calling off the final meeting. >You may rightly say I blew it. And you might rightly say I blew it because I >trusted Sims to be negotiating in good faith. Those would be fair charges, >and I have been more critical of myself that you would ever be for exactly >this reason. But my willingness to take another at his word is quite >different from saying the Berkman center was instrumental in the demise of >IFWP. The lack of resolve of some IFWP board members was more than enough to >lead to its own demise; Berkman -- not IFWP, NSI, or IANA -- was the last >actor still pushing for a final IFWP meeting, but our commitment to the >process was to facilitate what these parties wanted. These parties got >exactly what they wanted. (A note for the record: having been slapped once, >I will just say that there is no other cheek for me to turn.) Again, Tamar's negotiations with the Berkman Center were not extended to the Steering Committee. Much of what you have revealed here (for the first time, as a matter of fact) was a black box to us. For this reason, to claim that the IFWP process got exactly what we wanted is technically incorrect. NOTE: Tamar Frankel ended up as a Berkman fellow shortly after the collapse of the IFWP process. >You said: "Then why didn't you [criticize ICANN] at the time, and use your >professional license and your influence to correct or stop it?" Again, you >are wrong about the facts. I did precisely that. The first article I >published in the Standard was exactly on that point; I gave a number of >talks at the time pushing the same argument, and I said the same to everyone >who would listen. But again, it is just not surprising that an organization >that had won the support of the US government, and key support from Europe, >and most powerful internet companies did not simply fold because a law >professor criticized it. This is a fair assessment of the situation, and one of the reasons that I still have the utmost respect for you, Larry :-) Good luck on your campaign, and give 'em hell if you win. +++ Jay Fenello, New Media Strategies ------------------------------------ http://www.fenello.com 678-585-9765 Aligning with Purpose(sm) ... for a Better World ------------------------------------------------------- "We are witness to the emergence of an epic struggle between corporate globalization and popular democracy." http://cyberjournal.org/cj/korten/korten_feasta.shtml -- David Korten
