<nettime> roving_reporter, 26 sept - 6 oct: ICANN, in gruesome detail

[t byfield <tbyfield@panix.com>]

<http://www.tbtf.com/roving_reporter/>


     ICANN finnagles its own Jim Crow 
     Fri Oct 6 22:38:05 EDT 2000 

No sooner had ICANN posted the list of applications for new TLDs[1] on 3
October than the Copyright Coalition for Domain Names (CCDN) -- which in
less posh and/or more philosophical precincts might be compared to a
"protection racket" -- presented the applicants with an offer they
couldn't refuse. Steven Metalitz, Executive Vice President of the
Intellectual Property Coalition (IPC)[2] and counsel for the CCDN sent
them an email "request[ing] a copy of your application" in the hopes of
"initiat[ing] a dialogue...on those aspects of new TLD applications that
the IPC has identified as critical." (The IPC's "requirements" for new
TLDs are here.[2a]) He went on to say, "The IPC and its constituent members
have made careful review of the new TLD applications a high priority,
and plan to participate actively *in the public debate* leading up to
ICANN's decision on the roll-out of new TLDs" -- that is, in the public
comment period of 9-27 October. Evidently, the CCDN got copies of some
applications: on Thursday, 5 October, the president of the IPC
distributed selected materials from iDomains (regarding their
.biz/.ebiz/.ecom proposal), biz Regulatory and Advisory Council, LLC dba
bizTrac (.biz, .ebiz, .firm, .inc, .real), ICM Registry, Inc. (.kids,
.xxx), and SRI (.geo). But the rest of us lusers have to wait: evidently
unaware that new TLDs might be a multibillion-dollar business, ICANN
*underestimated* (sound familiar?) the number of applications they would
receive -- and, as a result, have delayed pubicly posting the
applications from 7 October to 11 October (i.e., two days into the
public comment period in which the IPC will be so active). In effect,
and once again, ICANN's missteps magnify the discrepancy between
well-organized intellectual property lobbies, who get privileged access,
and the unwashed massed, who get to wait.

If two days doesn't sound like much, then why is the IPC is so eager to
jump the gun? The answer: for genuine consensus-based processes, two
days is a a spit in the bucket, but for backroom politicking it's not to
be ignored. Does "backroom politicking" sound a bit harsh? Well, as
ICANN sets about approving and rejecting proposed TLDs, ask yourself
just where its mantras about "bottom-up" this and "consensus" that went.
And why the sudden rush, after two years, to approve new TLDs before the
November meeting in LA? Not that it really matters: the MAL boardmembers
won't be seated until "the conclusion of" that meeting."[3] This is
starting to smell a lot like the LA meeting where the UDRP was passed
before the "initial" then "interim" boardmembers were elected.[4]

[1]  <http://www.icann.org/tlds/tld-applications-lodged-02oct00.htm>
[2]  <http://ipc.songbird.com/>
[2a] <http://ipc.songbird.com/New_TLD_Safeguards.htm>
[3]  <http://www.icann.org/general/bylaws.htm#II>
[4]  <http://www.tbtf.com/roving_reporter/jdrp.html>

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     and finnagles a poll tax as well 
     Fri Oct 6 22:38:39 EDT 2000 

Initially, ICANN estimated that they would receive 7-20 proposals for
new gTLDs, and that the *total* cost of reviewing the new TLD applications
would be $350,000. On that basis -- where they get these numbers is
anyone's guess but certainly not empirical -- they bass-ackwardly
calculated that there should be an application fee of $7,500-$50,000.
Not surprisingly, the organization that only one year ago was teetering
on the edge of financial collapse took the hi^W low road and announced a
nonrefundable gTLD application fee of $50,000.

In fact, ICANN received 47 applications and, with them, a windfall of
over $2.3 million dollars. Assuming that *their own worst-case estimates
estimates are valid* -- and if they aren't why are they in charge of
this stuff? -- reviewing the applications should cost somewhere between
that amount and $822,500 (i.e., ($350K/20)*47) -- leaving a potential
surplus of up to $1,527,500. Where will the extra money go? The
roving_reporter's five bucks says JDRP.[5] It definitely won't go to the
underfunded-by-underestimation MAL -- that, ICANN insists, is a "special
project." But it could go to paying off...

[5] <http://www.tbtf.com/roving_reporter/icann1.html>

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     ICANN's "bridge-loan into the future" 
     Fri Oct 6 22:39:05 EDT 2000 

According to ICANN's general loan-disclosure statement[6] (note well:
page last amended 2 February 2000), the organization "executed one-year
unsecured loan agreements" with Cisco, MCI/WorldCom, 3Com, and Deutsche
Telekom. But the disclosure is window-dressing: it doesn't mention *the
date on which the loans were executed*. For that we have to look to
ICANN's 4 May 2000 proposed budget,[7] which mentions "currently
outstanding short term loans in the amount of $1.025 million [that might
be] repaid on schedule in August, 2000." And indeed, just over a year
earlier, the 26 July 1999 board meeting minutes[8] confirm the term: "a
number of commercial entities have indicated a willingness to loan the
Corporation funds for a *one-year term* at interest of 7% or below." Why,
then, in its successful[9] 30 September 1999 application to the IRS for
tax-exempt 501(c)(3) status -- filed in the middle of all these othere
"disclosures" -- did ICANN claim that it had "obtained non-recourse
loans from several entities for a *minimum* term of one year, to be repaid
*after a permanent funding mechanism is created*"? Maybe because it's
safer to fib to the public than to the IRS? The roving_reporter asked
ICANN's Maximum Leader Mike Roberts about this systematic discrepancy
between statements made to the public and statements made to the IRS,
and he said:

     The information was consistent with what was known about the status of
     our budget and general financial condition at the time the documents
     were prepared. The Board's direction to me re extensions was after my
     financial report in Yokohama in July, which is referred to prospectively
     in the budget resolution in June, etc.

     If you want to pursue more angles on financial condition, you shd
     probably wait until the report of the external audit is released in
     October. They get the last word on these matters. See related Yokohama
     resolution. In other words, he didn't answer the question. Instead, we
     are to wait for the audit reports -- like, say, the one that mentioned
     that ICANN had paid $223,696 to "a company which is owned by a principal
     member of [ICANN]'s management"[10] but failed to specify that the 
     company is the Darwin Group in which Roberts and his wife are the 
     principal stockholders.[11]

So does reviewing $50,000 applications for new gTLDs constitute the
"permanent funding mechanism" that, according to ICANN's statements to
the IRS, will trigger loan repayments? Or is that, like the MAL, just
another "special project" that happened to net ICANN $2.3 million? If
so, maybe the shareholders of Cisco, MCI/WorldCom, 3Com, and Deutsche
Telekom made a good investment after all.

[6]  <http://www.icann.org/general/loaninfo.htm>
[7]  <http://www.icann.org/financials/proposed-budget-04may00.htm>
[8]  <http://www.icann.org/minutes/minutes-26july99.htm>
[9]  <http://www.icann.org/financials/tax/us/irs-letter-grant-28aug00.htm>
[10] <http://www.icann.org/financials/financial-report-fye-30jun99.htm>
[11] <http://www.tbtf.com/roving_reporter/icann1.html#21>

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     David Post on the UDRP 
     Fri Oct 6 01:01:01 EDT 2000 

David Post has posted an essay[12] summarizing some fundamental problems with
ICANN's UDRP. He concludes: 

     The UDRP, though, is just the opening wedge, the first step in what will
     likely be a long journey towards the design of the new set of legal
     institutions that will be setting rules and creating a degree of order
     for the global network. For better or for worse, this private law-making
     model is likely to serve as a template for other, more complex and more
     significant issues, whether administered through ICANN and the domain
     name system or otherwise. We'll be sorry -- very sorry, I think -- if we
     don't get it right.

Bingo. 

[12] <http://www.temple.edu/lawschool/dpost/Juries.html>

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     The New Republic: "Kool-aid, anyone?" 
     Fri Oct 6 00:54:46 EDT 2000 

Damien Cave, who covers intellectual property issues for Salon,[13] has
written an article about ICANN[14] for The New Republic online. It's a
tour de force of misinformation and credulity. For a terse rebuttal, see
Jamie Love's[15]; for a thorough trouncing, see Milton Mueller's letter
to TNR.

***Addendum: Cave seems to have backed away rather suddenly from deriding
ICANN critics as a bunch of net.kooks:[16] here's a Salon article about
Barb Simons's candidacy for the MAL.[17]***

[13] <http://www.salon.com/directory/topics/damien_cave/index.html>
[14] <http://www.tnr.com/online/cave092600.html>
[15] <http://www.cluebot.com/article.pl?sid=00/09/29/0544251&mode=thread>
[16] <http://www.killfile.org/~tskirvin/faqs/legends.html>
[17] <http://www.salon.com/tech/log/2000/10/06/simons/index.html>

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     Another golden roving_reporter award... 
     Thu Oct 5 14:43:44 EDT 2000 

...goes to Judith Oppenheimer, publisher of ICBTollFree News for her headline
"BROWN OF NOSE, CRANED OF NECK, DOT WS PUCKERS UP TO TM BOOTY." The story?[18]
WorldSite, the commercially oriented maintainer of the .ws ccTLD for Western
Samoa,[19] tried to drum up business by "declaring war on 'cybersquatters'" --
reserving "all .ws domain names of Forune 500 public companies, Fortune 500
private companies, the top 200 Internet companies, as well as all professional
sports teams for 90 days!" The roving_reporter boldly predicts that WorldSite
will declare a truce with cybersquatters in, say, 91 days. 

[18] <http://icbtollfree.com/articleId4595.html>
[19] <http://www.nic.ws/>

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     European MAL candidate resources 
     Thu Oct 5 14:43:44 EDT 2000 

The rash of recent press and notices about ICANN Membership At Large
candidates has centered on the North American candidates (see Slashdot's
list here[20]), but these candidates are running for only one of five
new regional MAL seats. On 22 September, FITUG e.V.,[21] the
F�rderverein Informationstechnik und Gesellschaft, held a moderated
English-language IRC session with the European candidates; the log is
available here.[22] Fitug also maintains a discussion list,
icann-europe,[23] "to facilitate communications between the general
public, including ICANN At Large Members, and the candidates for the
European at large director's seat."

[20] <http://slashdot.org/article.pl?sid=00/10/05/1128232&mode=thread>
[21] <http://www.fitug.de/>
[22] <http://www.icannchannel.de/irc1.html>
[23] <http://www.fitug.de/icann-europe/index.html>

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     ICANN: transparency through obscurity 
     Thu Oct 5 14:45:43 EDT 2000 

For several weeks, the roving_reporter pressed ICANN to release
information about the systems supporting the MAL signup process -- *the
first and only* genuinely technical process that ICANN itself has
undertaken to date -- whose failures were widely noted (including in
this space[24]). In light of those failures, and in light of ICANN's
attempts to blame them on "media organs...behaving quite irresponsibly"
rather than admitting that ICANN had throttled the systems' processing
capabilities in order to limit signups,[25] I requested: (1) "the
hardware configuration of the server(s) on which the MAL signup process
is running"; (2) info on "who or what company wrote the software for the
MAL signup process"; (3) "documents associated with the specification of
the hardware/software configuration used for the MAL signup process";
and (4) a statement as to whether "the implementation of the MAL signup
process [was] subject to an open and/or competitive bid?"

In its inimitable style, ICANN hasn't refused these requests: instead,
after much hand-waving, it has *refused to refuse them*. On 8 August,
Board chair Esther Dyson wrote with a familiar non-newtonian candor,
"our system was inadequate for the demands it ultimately had to serve.
There's no secret there. The board made its estimates, and we were
wrong" -- the consequence of which was the hobbling of public-interest
representation to counterbalance ICANN's well-entrenched representatives
of commercial interests. On 18 August she brushed off the questions for
good: "I don't consider [it] a priority...to find out."

Maximum Leader Mike Roberts's approach was more elaborate. On 18 August
he misdirected me to "the revised instructions to the
staff[26]...contained in the Board resolution," rather than providing
what I asked for, namely, the staff's instructions to the vendor. On 3
September he wrote, "the system has performed excellently against its
original specification" -- which of course is *the problem* -- and went on
to say:

     I think what the community needs is impartial and complete analysis of
     the entire body of work on At Large, which to some extent goes back
     before ICANN to the discussions about what a user constituency was
     intended to contribute to the new corporation's technical management
     work. I personally don't see any way to arrive at such an analysis
     except through the careful work of the study group next year, its
     exposition of the background data provided to it by the staff, and the
     comments and suggestions also provided to it by the public, both
     professionally and non-professionally. When the press sees the study
     report, there will be ample opportunity to consult your own sources,
     experts, etc and challenge any part of the conclusions and
     recommendations you wish.

When I pointed out that it seemed odd for a self-styled "transparent"
"technical" organization to refuse these requests, he fell silent.

Roberts's response is certainly articulate, but it's clear from his
response that ICANN intends to steer inquiry away from ICANN's technical
competence in implementing the MAL signup system to a very different
question indeed -- *whether the Membership At Large should exist at all.*
This agenda was made abundantly clear at the July Yokohama meeting in a
number of ways:

     - changes to ICANN's by-laws[27] stipulating that the newly elected MAL
     boardmembers "shall be seated *at the conclusion of* the Annual Meeting 
     of the Corporation in 2000" (i.e., too late to do anything); and calling
     for a "'clean' sheet study -- meaning that previous decisions and
     conclusions will be informative but not determinative, and that the
     study will start with no preconceptions [i.e., the MAL's existence and
     right to elect boardmembers] as to a preferred outcome."

     - a discussion in which ICANN's board, staff, and JDRP General Counsel
     Joe Sims engaged in a (IV.N.5ff.) tendentiously scholastic
     discussion[28] about debates at the Cairo meeting, where commercial
     interests had tried to quash democratic representation *of users* on
     ICANN's board (RealFnord is available here[29] at 7.20ff.).

We shall see how candidly this "clean sheet" study assesses ICANN's
implementation of the MAL signup system. 

[24] <http://www.tbtf.com/roving_reporter/icann1.html#17>
[25] <http://www.tbtf.com/roving_reporter/icann1.html#13>
[26] <http://www.icann.org/minutes/prelim-report-10mar00.htm>
[27] <http://www.icann.org/yokohama/atlargebylaws-topic.htm>
[28]
<http://cyber.law.harvard.edu/icann/yokohama/archive/scribe-icann-071500.html>
[29]
<http://cyber.law.harvard.edu/scripts/rammaker.asp?s=cyber&dir=icann&file=icann-071500&start=28-48>

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     So much ICANN, so little time... 
     Tue Oct 3 22:04:55 EDT 2000 

On the, um, accountability front, Newsbytes paraphrases[30] ICANN
Uberstaffer Andrew McLaughlin as saying the ICANN board "often bucks
ICANN staff recommendations in making its final judgments on Internet
governance matters" -- as opposed to merely *rubberstamping* staff
recommendations, of course... After subjecting the world to a years-long
"election," Name.space[31] proposes a laundry list of 116 TLDs that's
different from the top 116 vote-getters.[32] Diffing that list against
the one in ICANN's list of proposed TLDs[33] reveals a subtle but
undeniable shift to the right, with allegedly bottom-up gems such as
".fuck", ".girl", ".hacker", ".hell", and ".pub" losing out to top-down
gambits for world domination like ".antiques", ".church", ".dtv",
".opera", ".soup" (due to intense competition in the Marx Brothers
space) and ".times" (due to intense competition in the Charlie Chaplin
space)... Ken Stubbs flaks[34] for Afilias's[35] proposed TLDs ".info,"
".site," and ".web." Wait, isn't that the same Ken Stubbs who represents
registrars[36] on ICANN's Names Council? No -- wait! No problem: article
V-7 of ICANN's by-laws[27] say "The Board shall adopt policies
specifically addressing Director, Officer and Supporting Organization
conflicts of interest." *Phew!* OK, so where's that DNSO
conflict-of-interest policy? It's got to be around here somewhere. Oh,
yeah -- *you can't be in the DNSO unless you have a conflict of
interest*... ICANN Maximum Leader Mike Roberts refuses for months to
reveal the deep, dark secret of who wrote the crufty MAL signup
software, not realizing that ICANN staffers at Yokohama happily chatted
about how hard ardent ICANN-lover and paid consultant to ICANN Kent
Crispin worked on it -- as well as on all the constituency elections
systems. Pay no attention to that man behind the curt^W lever... WWW
stands for Web Web Web, it seems: three proposals for ".web"? One of
them from none other than CORE-cutout[38] Afilias (q.v.). Now, the
trademark-loving COREniks know very well that IOD[39] already
trademarked ".web",[40] so whatever are they thinking? Well, Milton
Mueller's analysis of ICANN[41] as yet another incarnation of the
IANA-ISOC-gTLD-MoUvement might provide fodder for those inclined to
think that ICANN has reason to be less than even-handed[42] in its
treatment of IOD -- especially in light of IOD's suits against the
IAHC[43] and CORE[44]. And then there's Lockheed-Martin-Marietta spinoff
Neustar's[45] ".web": IOD may pride itself on running a functioning
registry for years, but Neustar runs NANPA[46]...

***Addendum: In light of IOD's lawsuit against CORE over the latter's
attempted use of ".web" and CORE-supported Afilias's application to
ICANN for ".web", it's well worth looking back at the confrontation
between IOD's Chris Ambler and Ken Stubbs[47] at the July 14 DNSO Names
Council (NC) section of ICANN's Yokohama meeting (at section III.G.44;
RealFnord is here[48] at 4:21-25). Ambler, a contributor to Working
Group C tasked with making recommendations for new gTLDs, used the
"comment period" to ask NC Chair Stubbs why the NC has overruled WGC's
hard-won consensus recommendation for 6-10 new gTLDs; Stubbs refused to
answer (Ambler: "Am I going to get an answer? No?" Stubbs: "Not at this
time, sir, no."). Now, three months later, Stubbs -- still chair of the
NC as representative of a Supporting Organization that has no
conflict-of-interest policy -- reappears as spokesmodel for the Afilias
consortium. And it was his NC that issued a statement[49] on 29
September "Warn[ing that] Pre-Registration of Speculative New Domain
Names Is Premature" -- which is exactly what IOD has been doing by
running a functioning registry for several years.***

[30] <http://www.newsbytes.com/pubNews/00/156049.html>
[31] <http://www.name-space.com/>
[32] <http://vote.global-namespace.net/>
[33] <http://www.icann.org/tlds/tld-applications-lodged-02oct00.htm>
[34] <http://www.afilias.com/LaunchRelease4b.rtf>
[35] <http://www.afilias.com/>
[36] <http://www.icann.org/dnso/nc-members.htm>
[37] <http://www.icann.org/general/archive-bylaws/bylaws-10mar00.htm#V>
[38] <http://new.corenic.org/>
[39] <http://www.webtld.com/>
[40] <http://wsj.nameprotect.com/>
[41] <http://www.cpsr.org/conferences/dns99/spkr-Mueller.htm>
[42] <http://www.icann.org/announcements/icann-pr29sep00.htm>
[43] <http://www.tbtf.com/resource/dom-name-hist-97-96.html>
[44] <http://www.dnso.org/dnso/dnsocomments/comments-wgb/Arc00/msg00037.html>
[45] <http://www.neustar.com/about/profile/index.html>
[46] <http://www.nanpa.com/>
[47]
<http://cyber.law.harvard.edu/icann/yokohama/archive/scribe-icann-071500.html>
[48]
<http://cyber.law.harvard.edu/scripts/rammaker.asp?s=cyber&dir=icann&file=icann-071400-fixed&start=4-23-44>
[49] <http://www.icann.org/announcements/icann-pr29sep00.htm>

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     Milosevic, BOFH 
     Sat Sep 30 14:12:23 EDT 2000 

Xeni Jardin of the Silicon Alley Reporter daily reports[50] that "one of
Yugoslavia's senior top level domain (TLD) administrators" has alleged
that "a series of personal threats and blackmail from a Milosevic
government official compelled a member of the .yu TLD administration
team to temporarily take over and redirect" opposition sites during the
elections in Yugoslavia.

[50] <http://www.siliconalleydaily.com/issues/sar09272000.html#Headline6290>

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     Our Ouija board says... 
     Sat Sep 30 14:12:12 EDT 2000 

...E...D...RESIGNS...C-O-B -- *chairman of the board*? -- ...B4...LA
NOV...LEST...MAL MMBRS...VOTE...ON...NEW...COB... *Who are you*? J...P...
*Really*? NO...CUL8R... *Will* Esther resign? *Who* will replace her? *Will*
ICANN seize the opportunity for tearful pomp and circumstance to upstage
any MAL activities? Stay tuned...

And whatever happened to that executive search[51] to replace Maximum
Leader Mike Roberts? The roving_reporter can think of at least one
candidate who'll soon be "between opportunities" who has all the
qualifications: a proven ability to manufacture consensus, a detailed
understanding of elections and institutional dynamics, and a strong
interest in DNS issues. Stay tuned...

[51] <http://www.icann.org/announcements/icann-pr03may00.htm>

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     MAL? What MAL? Oh, that MAL... 
     Sat Sep 30 14:12:02 EDT 2000 

ICANN announced the agenda[52] for its November meeting in Los Angeles.
There are no plans for the shiny new Membership At Large to meet.

[52] <http://www.icann.org/mdr2000/#schedule>

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     LolitaWatch, v. 2.0 offers new features 
     Sat Sep 30 14:12:39 EDT 2000 

C|Net is reporting[53] (if you call a press release larded out with
factoid filler grafs "reporting") that a bloke in San Diego by the name
of Page Howe has submitted a proposal to ICANN for a .kids domain. The
optimistic Mr. Howe further boosted morale in the ICANN offices when he
said, "If we get rejected this time around, we'll just keep trying until
ICANN thinks it's a good idea"; evidently, he's earmarked $10 million
for his ICANN-funding program. One wag has echoed Tim May's response to
a prior proposal along these lines[54] by dubbing Mr. Howe's project a
"whois for pedophiles."

[53] <http://news.cnet.com/news/0-1005-202-2896738.html>
[54] <http://staff.qnx.com/~glen/deadbeef/1151.html>

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     Jamie Love on the ICANN DNSO election results 
     Tue Sep 26 00:50:42 EDT 2000 

The ever-excellent Jamie Love of the Consumer Project on Technology has
posted an interesting note[55] about ICANN's DNSO (Domain Name
Supporting Organization) elections to his "Random-bits" list,[56] which
offers "a pretty good indication of the DNSO power structure," hence of
the prevailing forces in ICANN. Note that Jamie received 127
endorsements, just a few shy of the total number of endorsements
received by all the competing candidates combined -- and more than four
times the number received by the election's winner, Jonathan Cohen, "the
strongest voice for big corporate trademark interests on the ICANN
board."

[55]
<http://lists.essential.org/pipermail/random-bits/2000-September/000342.html>
[56] <http://lists.essential.org/mailman/listinfo/random-bits>

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