15 June 1999. Thanks to SS.

To: love@cptech.org
From: edyson@edventure.com (Esther Dyson)
Subject: [IFWP] Re: Letter to Esther Dyson from Ralph Nader and James Love regarding ICANN
Cc: list@ifwp.org, pbrewster@alexanderogilvy.com,
"Joe Sims" <Joe_Sims@jonesday.com>,
Mike Roberts <mmr@darwin.ptvy.ca.us>,
Geraldine Capdeboscq <geraldine.capdeboscq@bull.fr>,
"George Conrades" <conrades@akamai.com>,
Greg Crew <gregcrew@iaccess.com.au>,
Frank Fitzsimmons <fitzsimmon@dnb.com>,
Hans Kraaijenbrink <h.kraaijenbrink@kpn.com>,
Professor Jun Marai <junsec@wide.ad.jp>,
"Linda S. Wilson" <linda_wilson@radcliffe.edu>,
Eugenio Triana <etrigar@teleline.es>,
Mike Roberts <mmr@darwin.ptvy.ca.us>,
"Joe Sims" <Joe_Sims@jonesday.com>, <brian@PC-radio.com>,
jeri@nytimes.com, Juliana Gruenwald <jgruenwald@njdc.com>,
John Simons <John.Simons@news.wsj.com>, Paul.Taylor@ft.com,
Fred Kempe <Fred.Kempe@news.wsj.com>
Date: Tue, 15 Jun 1999 10:18:32 -0400
Sender: owner-list@ifwp.org
Precedence: bulk
Reply-To: list@ifwp.org

Ralph Nader
P.O. Box 19312
Washington, DC 20036

James Love
Consumer Project on Technology
P.O. Box 19367, Washington, DC 20036
love@cptech.org
http://www.cptech.org
Dear Ralph and Jamie:

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.

I hope that my answers below will respond to your concerns. 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. As a longtime
champion of individual rights and against monopolies, you hold common cause
with us.

Accordingly, I'd like to start by setting some context before answering your
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.

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 calling
my office at (212) 924-8800. You can also reach me later this afternoon at
(202) 979-3863.

Scene-setting

I'd like to set the scene for the answers to your questions by noting that
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 informal
management of its technical infrastructure, to something more formal and
predictable, and subject to public (but not directly government) oversight.

The Initial Board is following the guidelines set forth in the United States
Government's policy paper of last June (the White Paper), as further
amplified by the Memorandum of Understanding/Joint Project Agreement ICANN
signed with the Department of Commerce in November. These documents
comprise an agenda both important and ambitious, and we are doing our best
to work our way through it with the help of public input, several formal
advisory committees, and the so-called Supporting Organizations that make
up ICANN's internal structure. We welcome your input, both now and in the
future.

The White Paper articulates no Internet governance role for ICANN, and the
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.

One important aspect of its mandate is the introduction of competition into
the business of registering domain names, under an agreement with the US
Government. In this particular task, naturally enough, it is meeting fierce
resistance from the private government contractor that has been the monopoly
provider of DNS services, Network Solutions -- a company that has
transformed itself from an unknown start-up at the time (1992) when it first
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 that
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.

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 their
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 consensus
- though not of unanimity.

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 claims
"proprietary" rights in databases and techniques developed under government
contract as a reason for refusing to release information and for expensive
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.

Forgive this lengthy preamble, but I wanted you to understand the origin of
many of the complaints you have been hearing - basically, the effective PR
of a monopolist seeking to postpone the inevitable arrival of competition
fostered by ICANN. Since you have not been actively involved in this project
over the several years it has been underway, you may not appreciate the
power struggles involved…but given your long history of fighting monopoly
power, I thought it was important to provide you with some background.
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 listen
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 seriously;
our method is to foster and then recognize consensus rather than force it.
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-offs
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 chairman!)
With this background, let me try to respond to your specific questions.

IP issues

On the intellectual property issues, in its White Paper the Department of
Commerce requested the World Intellectual Property Organization to conduct 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 dispute
resolution mechanisms that could work despite the varying legal regimes that
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.

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 that
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 it
noted that it had already implemented some administrative recommendations,
concerning prepayment and contact information, in its standard registrar
contract.)

The DNSO's input will also be fully subject to the ICANN notice and comment
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 look
for consensus before deciding whether and how they should be implemented (or
modified).

The root server system

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 complex
subject. The committee has provided reports on its work at each of the last
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 the
meantime, ICANN is continuing to administer TLD assignments and related root
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, comment
and consensus procedures that precede any ICANN decision that could
significantly affect the Internet.

Review and recourse

ICANN is a private organization; its actions are fully subject to legal
review and oversight. Thus, if any action is believed to impair some legal
right, a complainant would have full recourse to any relevant court. In
addition, ICANN has a fully developed reconsideration procedure, and is in
the process of establishing an Independent Review entity to evaluate any
claim that ICANN has acted inconsistently with its Articles or Bylaws.

Financial issues

The White Paper assumed that, since the private non-profit organization it
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 development
activities. Since it is still very early in ICANN's existence, and we have
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 -- which
fee would be paid by the business entities actually making the registration.
(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.)

Since ICANN seeks only to recover its costs, we believe the $1 fee will be
adjusted downward as the early organizational expenses are gradually reduced
and as the number of names registered increases. In addition, if ICANN
succeeds in fostering competition in the registration process, it is likely
that the overall consumer price of registrations will come down
dramatically. Currently, it is set unilaterally by NSI at $70 for a two-year
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.

Finally, ICANN's activities are strictly limited by its Articles and Bylaws,
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-exempt
organization, it is also limited by IRS regulations in any expenditure of
funds aimed at influencing legislation. If you would like additional details
on the expenses we foresee for the fiscal year beginning July 1 (just under
$6 million), you can find a comprehensive budget document posted at our
Website for public viewing.

The role of the Initial/Interim Board

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 the
White Paper by having an "initial" Board rather than an "interim" Board.
This argument is pointless. 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.

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 necessary
to create an elected Board going forward. The White Paper specifically
called on the "initial" Board to formulate the necessary consensus policies
to allow competition to be introduced as quickly as possible. These
policies included "qualifications for domain name registries and domain name
registrars" and "policies for the addition of TLDs." Finally, in the White
Paper, the United States government said it would ask WIPO to "develop a set
of recommendations for trademark/ domain name dispute resolutions and other
issues to be presented to the Interim Board for its consideration."
The current Board, which I assure you would very much like keep its tenure
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 principal
objectives of the White Paper and of ICANN itself.

Having said all this, I would like to mention that we have made significant
progress toward a fully elected Board. The first of the three Supporting
Organizations responsible for electing nine of the 19 Board members is now
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 hope
that they will provide their three Directors each by early next year.

ICANN's Membership Advisory Committee has presented recommendations to the
ICANN Board dealing with the establishment of the At Large membership that
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 process
that will produce fully half of the Board be fair, open, resistant to fraud
or capture, and as widely inclusive of the full range of users and others
affected by ICANN policies as possible.

Conclusion

Thus, we have made much progress on many fronts, thanks largely to enormous
volunteer contributions of many, many people, from Directors (who are not
compensated other than out-of-pocket expenses and cannot be elected to the
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.
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 NSI
work with the rest of the community to make this obviously necessary
transition to open competition and policy-based management of the Internet's
vital technical infrastructure. Still, we will persevere, and we will succeed.
I hope this is responsive to your questions. Perhaps you could help us to
generate even more momentum behind the forces of Internet competition and
move away from monopoly as quickly as possible. We would greatly appreciate
your assistance in this effort. If you have further questions, please call
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.

Yours truly,
Esther Dyson
Interim Chairman, Internet Corporation for Assigned Names and Numbers (ICANN)
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
> love@cptech.org
> http://www.cptech.org
>
>Esther Dyson
><edyson@edventure.com>
>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 love@cptech.org, by telephone 202.387.8030,
>by fax at 202.234.5176. CPT web page is http://www.cptech.org
>
Esther Dyson Always make new mistakes!
chairman, EDventure Holdings
interim chairman, Internet Corp. for Assigned Names & Numbers
edyson@edventure.com
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
High-Tech Forum in Europe: 24 to 26 October 1999, Budapest
PC Forum: March 12 to 15, 2000, Scottsdale (Phoenix), Arizona
Book: "Release 2.0: A design for living in the digital age"
parody written by an attorney who insists on anonymity
For those who have never seen the t.v. show, "Mystery Science Theater 3000"
(aka MST3K) or read alt.mst3k, this may make little sense.
Scene: The Sattelite of Love, Mike and the 'bots
are sitting around a PC.

>Dear Ralph and Jamie:

Crow (CR): Old buddies old pals.

>Thank you both for your letter of June 11.

Tom Servo (TS): There is nothing we like better than having our
mistakes broadcast over the news. Love yah for it.

>The questions
>you ask are legitimate,

Mike Nelson (MN): Unlike ICANN's origins

>and we have legitimate answers to
>them.

CR: But we canot tell them to you. However, we're happy to
provide you with a high-level summary of them 3 months
after they are relevant, if the Board approves.
TS: After all, we're open and transparent.

>What is illegitimate is

MN: My birth, but I like to think of myself as the product of true love.

>the motivation of some of
>the people who keep asking the same questions without
>paying attention to the answers.

TS: Yeah, how many times does ICANN have to say "trust us" before
we shut up and go away?

>I hope that my answers below will respond to your
>concerns.

CR: Well, not really.

TS: Next time try substance over ad hominem.

>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.

MN: She's using an old IAHC mind-trick!

TS: (blankly, being mind controlled) I'm becoming mesmerized by his constant
repetition of the word "competition." I'm completely blanking on
everything else ICANN has ever said and done.

>As a longtime champion of individual rights and against
>monopolies, you hold common cause with us.

TS: Join us! Together we can rule the Internet!

>Accordingly, I'd like to start by setting some context
>before answering your specific questions.

MN: Not that I'm trying to distract you with irrelevancies,
get you pumped up on emotional issues, avoid answering
your questions, or flatter you. You're too clever for that, you wiley
consumer protection kinda guys.

>My response is
>intended not as an attack against anyone,

MN: But, it will be anyway. Tee hee, I'm such a silly.

CR: And certainly it is not an attack against
<dramatic evil music> NSI!!!!

[MN and TS scream in horror]

>but as a defense
>against attacks which are hindering us at ICANN from doing
>the tasks for which we were created.

TS: (in Pinky voice) What's that Brain?

CR: (Brain voice) The same thing we do every night Pinky,
Try to take over the Internet!

>As it happens, I'll be in Washington today (Tuesday),

MN: I thought the obscuring cloud-cover seemed
extra-thick on the weather map this morning.

> and I'd be happy to meet with either or both of you. Please
>let me know by e-mail or by calling my office at (212)
>555-xxxx. You can also reach me later this afternoon at
>(202) 555-xxxx.

TS: (deep voice) These phone numbers have been changed
to protect the innocent.

>Scene-setting

CR: (Rod Serling) For your consideration, a helpless and
defenseless Internet, dominated by an evil monopolist
that we shall call <evil music> NSI! [MN and TS Scream in horror]

>I'd like to set the scene for the answers to your
>questions by noting that ICANN is a newly minted
>organization with many of its organizational processes
>still under way.

MN: (also Rod Serling) Consider if you will, a dimension where
bylaws have no meaning, a dimension where time is what we make of it,
and where traditional boundaries of law and due process are unheard of
or ignored. You are about to enter . . . the ICANN Zone.

>It was created primarily in response to
>the Internet's extraordinary growth,

TS: And the personal ambitions of Don Heath.

>which required a
>transition from informal management of its technical
>infrastructure, to something more formal and predictable,

MN: Think of it as a straight-jacket for the Inetrnet.

>and subject to public (but not directly government)
>oversight.

TS: So how come government representatives (like the GAC) get
to know what's going on and make policy suggestions, but members
of the public (like us) don't?

MN & CR: SHHHH!!! Do you want people to think you're an
NSI shill?

>The Initial Board is following the guidelines set forth in
>the United States Government's policy paper of last June
>(the White Paper),

MN: On sale wherever fiction is sold.

>as further amplified by the Memorandum
>of Understanding/Joint Project Agreement ICANN signed with
>the Department of Commerce in November.

TS: Which took us only three tries to get, and even this was
less than what we'd initially hoped for.

MN: But that doesn't mean Commerce didn't *Trust* us, or
tell us we weren't open enough, or that we didn't get it.

>These documents
>comprise an agenda both important and ambitious,

MN: Ambitious is certainly the word for it.

TS: and the most ambitious part isn't even in the
published agenda.

CR: But of course, we can only show you that part if
you are (1) a board member, (2) a representative of
a government we like or suck up to, or (3) a close personal friend.

>and we
>are doing our best to work our way through it with the
>help of public input,

TS: Which we ignore or insult.

>several formal advisory committees,

MN: Which we ignore or insult (unless we stack them in advance).

>and the so-called Supporting Organizations that make up
>ICANN's internal structure.

CR: Which we've stacked, or we ignore or insult them.

TS: He4ck, what's a bylaw between friends? A board resolution trumps
a by-law anyway, right?

MN: Quiet, you evil NSI shill!

>We welcome your input, both now and in the future.

MN: So we can ignore and insult you, too.
Wouldn't want you to feel left out.

>The White Paper articulates no Internet governance role
>for ICANN,

CR: But we won't let that stop us!

>and the Initial Board shares that (negative)
>view.

CR: And that which we tell you three times is true.

>Therefore, ICANN does not "aspire to address" any
>Internet governance issues;

MN: Would we lie?

TS: (struggling to resist) I can feel it working, ICANN-does-not-
govern. Forcing-business-models-onregistrars-is-not-governance.
Mandating-universal-rules-by-contract-is-not-governance. Imposing-
a-universal-fee-on-all-registrations-and-renewals-is-not-governance
(although when NSF did it the court called it a "tax). ICANN-tells-me-it
does-not-govern. ICANN -

MN: (Slapping Tom) snap out of it!

>in effect, it governs the
>plumbing, not the people.

TS: <continuing> using-control-of-an-essential-resource-is
not-governance. Making-them-pay-whatever-we-decide-is
not-governance. ICANN-does-not-govern. ICANN-has-spoken.

>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.

CR: Oh well, if it's technical I'm sure it's not important. Tee hee.

MN: How did Trademarks get to be technical?

>One important aspect of its mandate is the introduction of
>competition into the business of registering domain names,

MN: Which, despite much hoopla and a couple o' hundred tho
spent, still hasn't happened.

>under an agreement with the US Government. In this
>particular task, naturally enough, it is meeting fierce
>resistance from the private government contractor that has
>been the monopoly provider of DNS services,

CR: And that would be?

>Network Solutions-

All: AAAHHHHHHHHH!!!!!!!!!

>a company that has transformed itself from an
>unknown start-up at the time (1992)

MN: What an evil thing, to be an unkopwn start-up!

TS: Yeah, don't they know that only megacorps create
things of value? Things like "Netscape" and merchants
like "Amazon.com." Imagine if these unkown start-ups were
allowed to challenge megacorps like Microsoft and Barnes and Noble.

>when it first entered
>into a contract with the National Science Foundation, into
>a subsidiary of a large privately-owned government
>contractor today,

MN: Umm, how did NSI turn itself into a subsidiary of SAIC? I mean,
did it walk up to SAIC and say "Oh please buy me, I yearn to be your humble
subsidiary?"

TS: Don't you know that SAIC is a government contractor with ties to the
Pentagon. This makes it EVIL! EVIL!!! EEEEVIIIIIL!!!!!!!

MN: Yeah, but -

CR: Don't think man, chant! Can't you see we have to get with the mindset!

ALL: EEEEVVVVIIIIIILLLLLL!!!!!!! EEEVVVVIIIIIIILLLLLLL!!!!!

>with a market value of over $2 billion
>for its own publicly traded stock [NSOL].

TS: See, money! Publically traded stock! More evil!

>Given this history,

MN: Of contracting to provide a service, doing exactly what was asked,
working closely with its contracting officer to make sure it complied
with what the USG wanted, and breaking new and innovative ground
as the thing scaled faster than anyone ever imagined possible.

>and the wealth that has been created through its
>administration of those government contracts,

ALL: Government contracts! EEEVVVILLLL! EEEEVVVVVIIIIILLLLLL!

CR: Didn't Postel run IANA through a government contract as well.

TS: Shut up you! (Slaps Crow)

>NSI is in no
>hurry to see that monopoly eroded.

MN: That explains why they built the testbed shared registry
system and deployed it while ICANN and CORE were farting around.

>Since this very goal
>is a principal short-run objective of ICANN,

CR: Not that you could tell from anything we've actually
done, mind.

>NSI has apparently concluded that its interests are not consistent
>with ICANN's success.

MN: Not that this is a personal attack or anything.

CR: But didn't NSI work closely with ICANN during the
negotiation period? Hasn't NSI complied with
everyone of its contractual obligations at this point?

TS: Quiet you! (Slaps Crow)

>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.

MN: And your evidence of this is?

TS: Evidence? Evidence? ICANN doesn't need no stinking
Evidence!

CROW: (McCarthy imitation) I hold in my hand the names
of 54 NSI sympathizers posting on the Internet.

>Of course, "I want to protect my monopoly" is hardly an
>attractive slogan,

MN: And neither is "I want to rule the Internet."

TS: That-which-ICANN-says-is-true. That-which-NSI
says-is-a-lie.

>and so NSI uses the language of democracy instead.

CR: (Russian acccent) Not like honest People's Republic
of ICANN, which only speaks pravda when it talks about
openness and democracy.

>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.

MN: Imagine, organizing folks who think like you!

TS: Is there no limit to their evil!

CR: Next they will resume to petition their elected
representatives for redress of greivances, just
like in the Constitution!

TS: Swine!

>Of course, many of these
>people are sincere in their concerns about the
>transparency of ICANN's operations and their interest in
>fostering public debate about its activities

MN: They're well-meaning, but gullible.

CR: Fortunately, mam Esther is here to set them straight.

>- as you are.

TS: But if you don't change your mind after this letter,
We'll brand you an NSI shill all over the Internet.

>But ICANN's goals and its actions are in fact the result
>of public debate and consensus - though not of unanimity.

CR: Remarks of evil-counter-revolutionary-running-dog
NSI-lackeys was appropriately ignored.

>NSI's rhetoric is also quite inconsistent with its
>conduct.

CR: Unlike comrades in ICANN, who always talk pravda.

TS: That which-ICANN-tells-me-is-true. That-which-NSI-tells-
me-is-false. Knowing-this-saves-me-the-trouble-of-evaluating
facts-on-my-own.

>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.

CR: Huh? What?

MN: Is that even an English sentence?
TS: I'm not sure what it means, except that it proves that NSI
is evil! Eeeeeeevvvvvvviiiiiiiiiiillllllllll!!!!!

>Furthermore, Network Solutions claims "proprietary" rights

CR: "Scare quotes" the "sign" of "substantive argument."

>in databases and techniques developed under government
>contract as a reason for refusing to release information
>and for expensive license fees.

MN: But didn't ICANN set the license fees?

TS: Quiet you! (slaps Mike)

>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.

MN: But didn't ICANN set the agreement?

>Forgive this lengthy preamble, but I wanted

CR: To distract you from the utter lack of substance in my answers.

>you to understand the origin of many of the complaints you have
>been hearing

MN: Whether legitmate or not.

>- basically, the effective PR

MN: But didn't ICANN hire its own PR agency?

>of a monopolist
>seeking to postpone the inevitable arrival of competition
>fostered by ICANN.

CR: (Russian again) and their evil running dog imperialist lackeys!
Forytunately, brave ICANN has arrived to bring benefits of socialist
republic to Internet.

>Since you have not been actively
>involved in this project over the several years

MN: We're kinda hopin' we can slip one past you.

>it has
>been underway, you may not appreciate the power struggles
>involved

CR: Which is why we expect you to swallow this tripe hook, line
and sinker.

>...but given your long history of fighting
>monopoly power, I thought it was important to provide you
>with some background.

TS: Coming to a theater near you, the sound of Esther sucking up!

>Now of course, there are many participants in this debate
>who are not NSI agents, and who have honestly differing
>views about particular issues.

MN: We even have our own pet name for them- "arrogant juveniles."

>Since ICANN is a consensus,
>non-governmental body,

TS: We get to chose the consensus! And don't even
have to justify our choice!

>we are charged to listen to all
>such views and debate them,

CR: Behind closed doors where nobody else can see.

TS: Secrecy-encourages-honesty. ICANN-has-told-me
so.

>and eventually we reach a consensus position.

MN: Which we then hand down to the rabble awaiting
our delphic decrees.

TS: Nice alteration Mike! (high fives)

>As a non-elected initial board, we take this duty

CR: To wrap everything up nice 'n tight before we leave.

>very seriously; our method is to foster

MN: FUD, with techniques like this letter, without
ever really engaging in debate or telling you more than we have to.

>and then recognize consensus rather than force it.

CR: Happily, the consensus has always been excatly
what we knew it would be.

TS; They're not only perfect at governing, they can see the future!

>This has
>certainly been the case to date:

CR: Yes. I am forgetting the consensus for open meetings, for
membership to come first, etc. despite the publiclly available
information at the Berkman site, Ellen Rony's site, and elsewhere.

TS: Quiet you! (slaps Crow)

>Every policy developed in
>ICANN has been the product of a comprehensive notice and
>comment process,

MN: In which participants usually had at least 3 days to digest
hundred page documents and get back to us.

CR: Or they could make arrangements on less than two weeks
notice to fly to someplace we decide.

TS: And we read every one's comments, because we are true gods!

>and every effort has been made to reflect
>in ICANN policies the consensus position to the extent we
>can determine it.

MN: And we never majke a mistake or need to reconsider.

>Of course, consensus is not unanimity,
>and there are people of good faith who disagree with
>certain specific ICANN policies.

TS: Poor deluded fools. But now they can be cured!

>We try hard to explain
>the reasons and trade-offs for each decision. In the end,

CR: If they don't agree, we call them NSI puppets or arrogant
juveniles.

>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.

TS: Of course, legitimacey is not necessary if we have sufficeint
government and industry backing. Bwahahahaha!!!!!!!

>(I myself do not
>agree with every facet of every ICANN decision, which is
>why ICANN has a board and not just a chairman!)

MN: So I can have plausible deniability.

>With this background, let me try to respond to your
>specific questions.

MN: About time.

>IP issues
>On the intellectual property issues, in its White Paper
>the Department of Commerce requested the World
>Intellectual Property Organization to conduct 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.

MN: Actually, I think it was supposed to be just about cyberpiracy.

CR: I don't think she realizes everyone can actually read the White
Paper at www.ntia.doc.gov and see what it really says.

>These issues include the need
>for and scope of alternative dispute resolution mechanisms
>that could work despite the varying legal regimes that
>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).

CR: Ummm... but didn't the White Paper also say that
it did not want to see a system of Internet governance?

MN: And isn't this just an INTA shopping list?

>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.

MN: The flaws of this are beautifully captrued by Froomkin
(one of WIPO's own panel of experts and the only one officially
representing the public interest), The United States Small Business
Administration, and others.

TS: You mean everyone other than Megacorps, world governments,
and intellectual property lawyers?

>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,

MN: Despite the White Paper's statement that ICANN isn't supposed
to create global governing systems, and ICANN's own consistent statements
on this front.

>and referred
>that recommendation to its newly formed constituent unit,
>the Domain Name Supporting Organization, for its review
>and specific implementation recommendations.

CR: Of course, we took care to stack the DNSO for the "right" result
first. You think we're stupid?

>It also referred most of the rest of the report to the DNSO for
>further study, without endorsing a particular direction.

MN: Nudge nudge, wink wink, know what we mean?

>(And it noted that it had already implemented some
>administrative recommendations, concerning prepayment and
>contact information, in its standard registrar contract.)

CR: So in other words, the WIPO report is o.k. because
ICANN already implemented chunks without going through
the boring, tedious, official process.

>The DNSO's input will also be fully subject to the ICANN
>notice and comment procedures before ICANN's next
>full-scale meeting in August,

MN: Not like anyone will get to participate in the DNSO
consideration.

TS: Let us all be suitably grateful to the work of Misters. Sola,
Roberts and Sims for excluding the rif-raf and other
people who might interfere.

>where the board will once
>again consider them

TS: In a secret closed-door meeting

>in the light of public comments and
>look for consensus before deciding whether and how they
>should be implemented (or modified).

MN: But, but, how does all this intellectual property stuff
square with not governing content on the Internet.

TS: Well mike, I'd explain it to you, but you're obviously
an NSI shill.

>The root server system

All: <singing> We own the world! We runt he system! We are the ones who
put you in the root, so we don't have to listen!

>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 complex subject.

MN: Which looks amazingly like the people who run it now our
close personal friends, and the people we suck up to.

>The committee has provided reports on its work at each of
>the last 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.

MN: Bwahahahhaha!

> In the meantime, ICANN is continuing to administer TLD
>assignments and related root server policies in the same
>manner as they were managed by Dr. Jon Postel before ICANN
>was formed.

CR: When in doubt, invoke St. Jon.

>Any policies relating to the root servers
>under ICANN oversight will, of course, be subject to the
>standard notice, comment and consensus procedures that
>precede any ICANN decision that could significantly affect
>the Internet.

MN: Translation- we'll do what we want and tell you afterwards if we get
caught. Why break a streak?

CR: Anybody remember "sole source contract?" ICANN taking over the servers
before being recognized by NTIA?

TS: No.

CR: Good, the IAHC mind-control has completely erased these unhappy thoughts.

>Review and recourse
>ICANN is a private organization; its actions are fully
>subject to legal review and oversight.

MN: Despite what we may say at Board meetings or do in practice.

CR: They're such kidders.

>Thus, if any
>action is believed to impair some legal right, a
>complainant would have full recourse to any relevant
>court.

MN: So let me get this straight- the court system is too complicated and
expensive for megacorps with famous marks to use, but it's good
enough for us little guys who think we're getting stomped on?

TS: Exactly!

>In addition, ICANN has a fully developed
>reconsideration procedure,

CR: You ask us, we say no. Sometimes we insult you too.
If you persist, we call you an arrogant juvenile or an NSI shill.

>and is in the process of
>establishing an Independent Review entity to evaluate any
>claim that ICANN has acted inconsistently with its
>Articles or Bylaws.

CR: Too bad they can't move on that as fast as they do on the
WIPO stuff.

TS: Look, you want us to spend time protecting trademarks,
or building a phony-baloney system we're going to ignore anyway?
We only have a budget of over $5 million you know!

>Financial issues
>The White Paper assumed that, since the private non-profit
>organization it 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 development
>activities. Since it is still very early in ICANN's
>existence, and we have no experience to determine the
>level of resources necessary to carry out its duties,

MN: We'll assume our wish list and get it.

TS: Don't worry, if we came in to high, we'll
scale back.

All: Bwahahahahahaha!

>ICANN has (again, after a full process of notice and
>comment) established a fee not to exceed $1 annually per
>name registration-which fee would be paid by the business
>entities actually making the registration.

MN: But don't worry, we'll *never* raise it.

>(You asked by
>what authority we will charge the fees;

TS: Nosey swine.

>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.)

CR: So, in other words, you used the leverage over the root to extort money
from everybody in the world, but it's o.k., 'cause they "voluntarily" agreed.

MN: Wait, under that ICANN mask, it's Richard Posner from the Seventh Cirucit!

TS: And I would have gotten away with it too, if it hadn;t been for those
arrogant juveniles and their annoying dog.

>Since ICANN seeks only to recover its costs,

TS: People of Earth, we come in peace and mean you no harm.

>we believe
>the $1 fee will be adjusted downward as the early
>organizational expenses are gradually reduced and as the
>number of names registered increases.

CR: Oh yeah, non-accountable bureaucracies reduce their fees
all the time.

TS: Trust-the-ICANN.

>In addition, if
>ICANN succeeds in fostering competition in the
>registration process,

MN: Although we'll still hold the keys to hte men's room of course . . .

>it is likely that the overall
>consumer price of registrations will come down
>dramatically.

TS: But I wouldn't bet on it.

>Currently, it is set unilaterally by NSI at
>$70 for a two-year registration

All: EEEEEEVVVVVIIIIIIILLLLLLL!!!!!!

>(NSI does not permit one-year registrations).

TS: I'm pretty sure they do after the first year.

>A competition-spurred reduction
>would lead to a substantial net consumer benefit due to
>ICANN's activities.

CR: Ultimately, after a brief period of dictatorship by the proletariate,
the state will whither away. Until then, you must obey our every command
and pay our defense taxes to keep out NSI running dogs.

>Finally, ICANN's activities are strictly limited by its
>Articles and Bylaws,

MN: And we've seen how much respect ICANN has for those.

>and any fees it collects can be used
>only to offset the costs of these specific activities.

TS: Or else what? The California AG sends a nasty letter?

>Since ICANN is intended to be a 501c(3) tax-exempt
>organization, it is also limited by IRS regulations in any
expenditure of funds aimed at influencing legislation. If
you would like additional details on the expenses we
foresee for the fiscal year beginning July 1 (just under
$6 million), you can find a comprehensive budget document
posted at our Website for public viewing.

The role of the Initial/Interim Board

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
the White Paper by having an "initial" Board rather than
an "interim" Board. This argument is pointless. 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.

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 necessary to
create an elected Board going forward. The White Paper
specifically called on the "initial" Board to formulate
the necessary consensus policies to allow competition to
be introduced as quickly as possible. These policies
included "qualifications for domain name registries and
domain name registrars" and "policies for the addition of
TLDs." Finally, in the White Paper, the United States
government said it would ask WIPO to "develop a set of
recommendations for trademark/ domain name dispute
resolutions and other issues to be presented to the
Interim Board for its consideration."

The current Board, which I assure you would very much like
keep its tenure 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
principal objectives of the White Paper and of ICANN
itself.

Having said all this, I would like to mention that we have
made significant progress toward a fully elected Board.
The first of the three Supporting Organizations
responsible for electing nine of the 19 Board members is
now 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 hope that they
will provide their three Directors each by early next
year. ICANN's Membership Advisory Committee has presented
recommendations to the ICANN Board dealing with the
establishment of the At Large membership that 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 process that will produce
fully half of the Board be fair, open, resistant to fraud
or capture, and as widely inclusive of the full range of
users and others affected by ICANN policies as possible.

Conclusion

Thus, we have made much progress on many fronts, thanks
largely to enormous volunteer contributions of many, many
people, from Directors (who are not compensated other than
out-of-pocket expenses and cannot be elected to the 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. 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 NSI work with the rest of the
community to make this obviously necessary transition to
open competition and policy-based management of the
Internet's vital technical infrastructure. Still, we will
persevere, and we will succeed.

I hope this is responsive to your questions. Perhaps you
could help us to generate even more momentum behind the
forces of Internet competition and move away from monopoly
as quickly as possible. We would greatly appreciate your
assistance in this effort. If you have further questions,
please call 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.

Yours truly,

Esther Dyson
Interim Chairman,
Internet Corporation for
Assigned Names and Numbers (ICANN)