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Date: Tue, 29 Jun 1999 15:21:33 -0400
From: t byfield <[email protected]>
Subject: Patrick Greenwell's letter to Nader/Love re ICANN
<http://stealthgeeks.net/nader.html>
Note: If you are interested in endorsing this letter please email your
name, address, URL, and affiliation(if you wish) to:
[email protected]
This letter, along with a link to those endorsing it be sent to
every U.S. Congressional representative. A list of individuals and
organizations endorsing this letter may be found here.
Background information on this letter may be found here.
_____________________________________________________________
Ralph Nader
P.O. Box 19312
Washington, DC 20036
James Love
Consumer Project on Technology
P.O. Box 19367,
Washington, DC 20036
Dear Ralph and James:
1. I would like to take this opportunity to express my deep
appreciation for your letter to the ICANN board dated June
11. It is both heartening to see that the ICANN board has
chosen to respond to you, and disappointing that, despite the
inquiries of a number of individuals on similar issues, the
board has been completely non-responsive.
2. I am also writing to offer some perspective on the answers
that Ms. Esther Dyson has offered to you on behalf of the
ICANN board. I do so as someone who has been an active
participant in this arena for over two years, as a past board
member and representatitve of the Internet Service Providers
Consortium(ISP/C), as a steering committee member of the
International Forum on the White Paper (IFWP) and as a past
employee of two different prospective domain name registrars.
While I serve in none of these capacities at present, I have
chosen to remain involved in these issues out of personal
interest and my belief that what occurs will greatly affect
the Internet, its users, and their right to be represented in
the decisions that affect them.
3. Since the ICANN board -- by unjustifiably raising the specter
of paid NSI agents acting as saboteurs -- has taken the
unfortunate tack of attempting to divert attention from the
questions you have asked, I feel it prudent to offer my
position with regard to NSI lest I be mistaken for one of
these boogymen. I have been a long-time critic of NSI, having
been a victim of their fatally flawed domain dispute policy.
Being even further upset by what I believe to have been
nothing less than the hijacking of the former Internic site,
I created an alternative site with similar functionality:
http://209.133.38.12. I have never been, nor am I now, the
recipient of any item of value from Network Solutions.
Nothing would please me more than to see an end to the NSI
monopoly in the .com/.net/.org registries, and a level
playing-field for all would-be competitors.
ICANN and the White Paper
4. In her response, Ms. Dyson states "The initial board is
following the guidelines set forth in the United States
Government's policy paper of last June (the White Paper)..."
5. A copy of the White Paper may be obtained at:
http://www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.htm
6. I encourage you to retrieve a copy and review it for
yourselves.
7. There are a number of very significant areas where the
Interim board is indeed not following the letter and/or the
spirit of the White Paper:
Representation of Internet users on the ICANN Board
The White Paper:
8.
"The Board of Directors for the new corporation should be balanced
to equitably represent the interests of IP number registries,
domain name registries, domain name registrars, the technical
community, Internet service providers (ISPs), and Internet users
(commercial, not-for-profit, and individuals) from around the
world. Since these constituencies are international, we would
expect the board of directors to be broadly representative of the
global Internet community."
ICANN:
9. There are no members serving specifically to represent the
interests of Internet service providers, or individual
Internet users on the current board. One board member, Jun
Murai, accounts for the sum of board representation in the
areas of IP number registries, domain name registries, domain
name registrars, and is the only board member with
discernable experience and participation within the Internet
technical community. Linda Wilson, as President of Radcliffe
College apparently represents not-for-profit organizations.
10. Thus, out of eight groups that were to be equally
represented, there is a single board member to represent four
of these groups, with Ms. Wilson representing one other. This
leaves three other groups completely unrepresented by the
present board. As such, the current board objectively fails
to meet the representation criteria outlined in the White
Paper.
11. It is also perplexing that an organization -- which is
ostensibly charged with largely technical management duties
in the areas of domain names, IP address and protocols --
would have on its board so few persons with actual
operational expertise in these areas.
The "Interim" Board vs. "Initial" Board
The White Paper
12. " As outlined in appropriate organizational documents,
(Charter, Bylaws, etc.) the new corporation should:
appoint, on an interim basis, an initial Board of Directors (an
Interim Board) consisting of individuals representing the
functional and geographic diversity of the Internet community. The
Interim Board would likely need access to legal counsel with
expertise in corporate law, competition law, intellectual property
law, and emerging Internet law. The Interim Board could serve for a
fixed period, until the Board of Directors is elected and
installed, and we anticipate that members of the Interim Board
would not themselves serve on the Board of Directors of the new
corporation for a fixed period thereafter."
ICANN:
13. Ms. Dyson in her response offers:
" The White Paper calls for the consensus entity that became ICANN
to 'appoint, on an interim basis, an initial Board of Directors (an
Interim Board)' [emphasis in original]. This 'initial' Board was to
serve until it established "a system of electing a Board of
Directors." Thus, the terms "initial" and "interim" were clearly
synonymous in the White Paper."
14. I believe if you examine the text of the White Paper, you
will learn that -- Ms. Dyson's attempted juxtaposition of
"interim" with "initial" nonwithstanding -- no such
synonymity exists.
15. It is also important to note that the details of the
selection of the current unelected Interim board -- which
ostensibly resulted from the "bottom-up" decision-making
process that is the hallmark of the Internet -- are extremely
hazy at best. I invite you to ask the board what criteria was
employed in selecting these particular board members to serve
as the representitives of the Internet Community, and who was
doing the selecting. It is my sincere hope that you may be
able to elicit a simple, honest and straightforward response
to these questions, when the rest of the Internet community
has been unable to.
Openness and transparency
The White Paper:
" The new corporation's processes should be fair, open and
pro-competitive, protecting against capture by a narrow group of
stakeholders. Typically this means that decision-making processes
should be sound and transparent; the basis for corporate decisions
should be recorded and made publicly available."
ICANN:
16. Despite continued calls for transparency mechanisms such as
open board meetings, the current ICANN board has instead
choosen to operate behind closed doors. Indeed, other
organizations within the ICANN structure -- such as the Names
Council, and the Government Advisory Council -- have adopted
similar closed-door policies in conducting their affairs. The
boards' refusal to conduct meetings in the open, where they
are subject to public review, has created an unfortunate
precedent that has become the status quo within ICANN.
17. If you review what scant information that does exist, namely
the Board meeting minutes located at:
http://www.icann.org/minutes/notes-minutes.html
18. I think you will find that there is little in the way of an
objective basis for or explanation of the vast majority of
decisions being made.
"Cybersquatting" and the WIPO report
The White Paper:
19.
" The U.S. Government will seek international support to call upon
the World Intellectual Property Organization (WIPO) to initiate a
balanced and transparent process, which includes the participation
of trademark holders and members of the Internet community who are
not trademark holders, to (1) develop recommendations for a uniform
approach to resolving trademark/domain name disputes involving
cyberpiracy (as opposed to conflicts between trademark holders with
legitimate competing rights), (2) recommend a process for
protecting famous trademarks in the generic top level domains..."
in addition:
20.
"Further, it should be clear that whatever dispute resolution
mechanism is put in place by the new corporation, that mechanism
should be directed toward disputes about cybersquatting and
cyberpiracy and not to settling the disputes between two parties
with legitimate competing interests in a particular mark. Where
legitimate competing rights are concerned, disputes are rightly
settled in an appropriate court."
ICANN:
21. Completely ignoring the very clearly articulated guidelines
above, the ICANN board has instead chosen to embark on a much
more ambitious path, stating in their May 27th press release
located at http://www.icann.org/berlin/berlin-press-rel.htm
22.
"The Initial Board noted that the scope of this policy should be
wider than the cases of abusive registration with which the WIPO
report deals, and ultimately cover all commercial dispute issues
linked to Domain Name registrations."
23. This statement alone, should remove any possible
misperception that ICANN is not attempting to operate in a
governance role. ICANN, entirely disregarding its mandate,
would offer itself the authority to decide the manner and
means by which a persons' property may be confiscated in ALL
commercial disputes linked to Domain Name registrations
without the benefit of a court of appropriate jurisdiction.
24. The ICANN board also passed a resolution in Berlin regarding
uniform dispute resolution: "FURTHER RESOLVED (Resolution
99.43), the ICANN Board endorses the principle that a uniform
dispute resolution policy should be adopted for Registrars in
the .com, .net, and .org Top-Level Domains (TLDs);"
25. In taking this action against the .com, .net, and .org
registry, ICANN has singled out NSI and their customers for
this treatment. There are over 240 TLDs in existence, several
of which are direct competitors of NSI. How is the goal of a
level-playing field aided by the implementation of a
"uniform" dispute policy that is only applicable to some TLDs
and not others? Why is an organization claiming that it
exists for "technical coordination" purposes in the business
of MANDATING dispute policies at all?
Funding
The White Paper:
26.
" Once established, the new corporation could be funded by domain
name registries, regional IP registries, or other entities
identified by the Board."
ICANN:
27. Eschewing any of the above-mentioned groups as funding
sources, ICANN instead has chosen to fund itself by assessing
a $1 per domain tax on each domain name.
28. If there is any question as to whether imposition of such a
fee is a tax, I welcome you to examine the finding of the
court in the case "William Thomas, et al vs. Network
Solutions", a decision that is located at
http://www.aira.org.
29. While it is certainly understandable that a funding mechanism
for ICANN is necessary, it is completely improper that a tax
be imposed without the representation of those being taxed --
in this case, the individual domain name owner. In fact, I
believe a fairly well known revolution occurred with the
concept of "no taxation without representation" as one of its
founding principles.
30. That an unelected board is in the business of imposing taxes
on an unrepresented constituency -- which would be forced to
be the primary source of funding for this organization --
should offer some indication of the gravity of the situation
that faces us all.
ICANN and its bylaws
The "Initial" Board of ICANN
ICANN bylaws:
31. Article V: Section 1 of the ICANN bylaws state:
" The initial Board of Directors of the Corporation ("Initial
Board") shall consist of [a] nine At Large members, [b] the
President (when appointed) and [c] those Directors that have been
selected in accordance with these bylaws by any Supporting
Organization(s) that exists under Section 3(a) of Article VI during
the term of any of such At Large members. The At Large members of
the Initial Board shall serve until September 30, 1999, unless by a
two-thirds (2/3) vote of all the members of the Board that term is
extended."
ICANN in practice:
32. Currently, there are only the at-large members of the ICANN
board. Half of the "Initial" board has not been seated as of
yet. It would seem for the purposes of the bylaws, that there
exists no "Initial" board of ICANN at present, yet the board
members present are already engaging in substantive policy,
acting as if the "initial" board was properly constituted.
33. The term of the interim board members that are seated is to
expire within three months, yet, while comfortable in taking
aggresive policy actions in other areas, the board has been
unable or unwilling to establish a membership that is to
elect 9 members.
The structure of and representation of Internet users within
the ICANN Supporting Organizations
ICANN bylaws
34. The ICANN bylaws state that the initial constituencies of the
Domain Name Supporting Organization would be comprised of the
following:
" 1. ccTLD registries;
2. commercial and business entities;
3. gTLD registries;
4. ISP and connectivity providers;
5. non-commercial domain name holders;
6. registrars; and
7. trademark, other intellectual property and
anti-counterfeiting interests."
[note: ccTLD stands for "Country Code Top Level Domain." gTLD
stands for "Generic Top Level Domain"]
Further:
35.
"(c) Members of each Constituency shall select three individuals to
represent that Constituency on the NC, no two of which may be,
except with the consent of the Board, citizens of countries in the
same Geographic Region, as defined in Article V, Section 6.
Nominations within each Constituency may be made by any member of
the Constituency, but no such member may make more than one
nomination in any single Constituency; provided that this
limitation shall not apply to any Constituency with less than three
members."
ICANN in practice
36. One of the most contentious areas in the formation of ICANN
has been the composition of the "Domain Name Supporting
Organization" (DNSO) within ICANN. The DNSO's role is to
develop substantive policy recommendations on any domain-name
related issues, including but not limited to domain name
conflicts, and the addition of top level domains to the root
servers. The DNSO would also select the Names Council, which
would be charged with delivery of such policy, as well as
selection of three ICANN board members.
37. In this scheme, individual domain name holders are offered 3
out of a possible 21 seats on the Name Council. The other 18
would go to businesses, and/or their representatives. This
presents a situation where the DNSO is dominated by business
interests. The individual domain name owner, the one being
forced to bear the costs of funding ICANN, will *never* have
adequate and/or equal representation within the ICANN
structure.
38. The ICANN board has rejected all proposals by which an
individual may fully participate in the DNSO. In the nine
months since its formation, the ICANN board has failed to
establish a general membership, a membership that would elect
their successors. This, despite the hard work of the
membership committee in furnishing the ICANN board with a
completed report on membership.
39. It is also of great import to be aware that there is no
substitute for physical presence within ICANN. Although the
medium that ICANN would govern requires no specific physical
presence, allowing for instantaneous communication worldwide,
there has been no attempt to offer physically distant
constituents voting rights.
40. At the last meeting of ICANN, held in Berlin, several of the
Supporting Organization constituencies were recognized by the
ICANN Board. Immediately thereafter, votes were taken by
members of those constituencies physically present to elect
Name Council members. No opportunity was afforded those not
physically present to vote for their representatives. Thus,
those not physically present are inadequately, and in some
cases completely unrepresented, although persons have been
elected to fill spaces. In truth, the Names Council, while
not even fully constituted, has begun making substantive
decisions regarding the DNSO.
41. In its admirable quest to remain truly international, ICANN
has embarked on a permanent world tour, holding meetings in
different countries. While they are to be commended for this
commitment to diversity, it has the unfortunate side effect
of leaving anyone -- without the significant time and funding
necessary to travel the globe -- completely unrepresented at
ICANN meetings. Needless to say, the group that is most
impacted by this lack of representation consists of the
individual domain name owners.
ICANN's adherence to its bylaws
ICANN in practice
42. To date, ICANN has unquestionably violated its own bylaws
directly at least two times:
Duly appointed Name Council representatives were forcibly
ejected from a meeting.
In accordance with the aforementioned bylaws, NSI (the only
member of the gTLD constituency,) named three
individuals to the Names Council: Don Telage, a NSI
employee; Richard Sexton, of the Top Level Domain
Association; and Joop Teernstra, a representative of the
an organization called the "Individual Domain Name
Owners Constituency." However, in the next Name Council
meeting on June 11th, Javier Sola, a Names Council
member, stating that he was operating at the instruction
of the ICANN board, and with ICANN Interim CEO Mike
Roberts and ICANN attorney Joe Simms present, ejected
Richard, and David Johnson, counsel for NSI from the
Names Council teleconference. Further, Don Telage,
Senior Vice President, Internet Relations and Special
Projects of NSI, was relegated to "observer" status. The
Names Council members present voted to close the
meeting, and as such a member of the press was denied
access to the call. Now that the minutes are available,
it is evident that the topic of discussion was the WIPO
report, something of vast public import.
ICANN bylaws
"(g) No more than one officer, director or employee of a
corporation or other organization (including its
subsidiaries and affiliates) shall serve on the NC at
any given time. Service as a member of the NC shall not
disqualify a person from being selected by the DNSO as
one of the Directors of the Corporation it is entitled
to select. "
[note: NC stands for Names Council]
ICANN practice
43. Currently, two MCI-WorldCom employees, Theresa Swinehart and
Susan Anthony, have been elected and are currently serving on
the Names Council in violation of this bylaw.
ICANN: A monopoly to dwarf NSI
44. Throughout Ms. Dyson's response, she constantly referred to
NSI as being a monopoly, casting ICANN as being a fearless
monopoly-buster. What Ms. Dyson fails to impart is that in
breaking the NSI monopoly ICANN stands to become a monopoly
of far greater power and control than NSI, with regulatory
and governance ambitions that far exceed those of NSI.
Currently, NSI controls only the domain name registry for
.com, .net, and .org domain names. ICANN would control much
more:
a) ICANN will control the assignment of Protocol parameters
for the entire Internet. Protocol addresses and names
that are necessary in order to offer new services on the
Internet.
b) ICANN will control IP address allocation for the
entire Internet. This has not been a high-visibility
discussion; however, it is likely to be of much greater
import to the Internet than domain names. One of IANA's
functions was to allocate address space to the
RIRs(Regional Internet Registries) so that they may then
in turn allocate address space to ISPs and end-users.
c) Currently, there are over 240 TLDs, with the
likelyhood that this number will expand in the future.
ICANN will effectively control the registries of all
TLDs everywhere, and force every prospective registry to
enter into contracts by which ICANN will dictate their
ability to offer services, and the means by which they
may do so. In fact, there are demands from the
Government Advisory Council that ICANN enable
governments to take ccTLDs from their current
maintainers. This is a right they do not have today, and
would represent a fundamental shift in long-standing
policy regarding ccTLDs.
d) Along with ICANN controlling all registries, all
prospective registrars in the ICANN regime are forced to
sign contracts with ICANN in order to do business as a
registrar.
45. While there are no registry contracts as of yet, the
registrar contract which prospective registrars are forced to
sign does exist
(http://www.icann.org/ra-agreement-051299.html) and:
o Specifies what data property rights a registrar can
claim in the information collected
o Mandates that registrars may only offer registrations
for a fixed time period
o Forces the domain name holder "to agree to suspension,
cancellation, or transfer of their domain name by ANY
ICANN registry or registrar administrator approved by an
ICANN-adopted policy (1) to correct mistakes by
Registrar or the registry administrator in registering
the name or (2) for the resolution of disputes
concerning the SLD name."
o Allows ICANN to remove "certification" from a registrar,
likely rendering them unable to do business.
46. I ask you, what organization chartered for merely "technical
coordination" purposes has such broad powers as to specify
what property rights a business can claim in data, force an
individual or business to submit to the confiscation of their
property at the whim of whatever undefined process that
organization may choose to undertake at any time, or put a
company out of business entirely?
47. A citizen has more rights when an agency violates its own
rules of procedure, but ICANN -- since it is nominally
"private"--is not bound by the rules of Due Process.
48. In purchasing a single share of common stock in NSI, any
individual may obtain greater legal rights to speak and to
obtain information regarding NSI, the monopoly, than one can
obtain in ICANN, a non-profit chartered to be open,
transparent, and representitive of the Internet community.
49. NSI, the monopoly, is over. This is spelled out in the White
Paper, as well as Amendment 11 of the Cooperative Agreement
between NSI and the Department of Commerce, available at:
http://www.networksolutions.com/nsf/agreement/amendment11.ht
ml
50. We have the Department of Commerce to thank for this, not
ICANN. All that ICANN has done in this area is to produce a
heavy-handed registrar agreement contract, collect fees from
prospective registrars, and offer the names of five
prospective registrars, lacking any publically known
objective criteria for their selection over other, equally
qualified candidates.
51. Finally, what Ms. Dyson has castigated NSI for is acting like
a business. As you are well aware, licensing fees and
non-disclosure agreements are very much standard within the
business world. It borders on the absurd to criticize a
for-profit business for acting like a for-profit business. It
is not NSI's responsibility to be open, transparent, and
representative. Given ICANN's charter, and potential power
ICANN will wield, it is however very much ICANNs
responsibility to adhere to the principles of openness,
transparency, representation, and fairness. I can find no
fault with NSI demanding that a governance organization that
is poised to destroy their business adhere to the concepts of
fair and non-discriminatory treatment.
CONCLUSION
52. I would like to close in part by quoting Ms. Dyson:
" Indeed, I hope that they may persuade you to join us in our fight
to remove monopoly from the business of registering domain names
and help keep the Net free for small businesses and individuals to
use as they see fit."
53. I would however ask you to consider that the fight is rightly
to help prevent a much larger monopoly from occuring, one
that would span not only domain names, but also has the
potential to fundamentally affect Internet users everywhere.
54. Left unfettered, the decisions that ICANN are making will
amount to privately imposed law, existing in every nation on
earth, without the benefit of the review or enactment by a
representitive legislative body in *any* of these nations.
55. It is imperative that voices such as yours, voices known for
being champions of the 'little guy', are involved in this
process. Please, help to ensure that the Internet remains
free from the global regulatory and taxation scheme that
ICANN is attempting to force upon us. The Internet community
needs your continued interest and participation in these
issues.
Thank You
Patrick Greenwell