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Re: [discuss] Unofficial minutes June 11 1999 Names Council Meeting

Dear Mr. Sola:

Thank you for your generally constructive and open response to my
questions on what must by now be a painful subject.  Before going into the
details, however, I feel compelled to make one general point:

I am not now nor have I ever been on the NSI payroll.  I once accepted a
free tour of the NSI facilities as part of a group attending the IFWP
meeting in Virginia.  NSI fed me a sandwich and a soda.  I may have had
two, I don't recall. Other than that I have never received anything of
value from NSI.  I am a tenured Professor of Law who writes full time
about Internet related matters, and I treasure my independence.

It is a great pity that a man of your obvious intelligence and experience
should stoop to the Internet equivalent of Red Baiting to dismiss critics
of ICANN.  I hope that these remarks about ICANN's critics were written in
the heat of the moment and do not reflect a considered view that there are
only two sides in this debate: ICANN and NSI.  Life is much more
interesting and complicated than that.  And, from my perspective, the
interests of the user community are not currently being well served by
either of those bodies.

On Fri, 18 Jun 1999, Javier wrote:

> >5. Despite (4) no formal action is taken to amend the By Laws, which
> >remain unchanged at the time of the teleconference.
> The ICANN Board Berlin resolution basically said that they would allow only
> one representative. If NSi tried to force its hand, they would change the
> bylaws. They are probably in the process of doing so.

But if they have not, then all participants in the process have an ethical
obligation to play by the (old) rules, don't they?

> >6.  Despite (5), someone from ICANN, instructs Javier Sola to ensure that
> >only one NSI Name is allowed into the teleconference, and he complies with
> >this direction.
> This is false, that is why I objected to innacurate reporting. I was
> following the Berlin resolution, the only direction we have received from
> the Board on this issue. I had no other instructions. We had not received
> the name of the NSi repersentative (we have not received it yet).

Thank you for this correction.  It is refreshingly honest to see someone
take personal responsibility for their actions.  I salute you.  (I mean
this -- I am not being sarcastic.  This is admirable, and rare.)

I must confess, however, that I believe that this was an error of judgment
which should not be repeated.  A critical element of ICANN's success
require that stakeholders trust it to not abuse its power over one of the
chokeholds over the Internet as currently structured.  We are often
reminded that the governing documents restrict ICANN to technical
coordinating functions for which there is a consensus, so you will see why
it is disconcerting to find senior participants in the process acting in a
fashion which appears to suggest that the documents are not worth the
paper they are printed on.

This is not mere proceduralism.  Amendment of the bylaws would (I hope and
trust) involve notice and comment, and public discussion.  That would help
create legitimacy.  It might (maybe) even change the outcome...

> >Is that a correct summary of the events?
> >Particularly at a moment when there is no membership, and the ICANN
> >Board's legitimacy is, to be frank, somewhat debated, it would seem
> >essential to comply with the letter of the rules in order to build trust
> >in the community. 
> The ligitimacy of the Board is contested by NSi (who is not interested on
> having a stable ICANN) and by other people directly or undirectly in they
> payroll. See for example comments just received in this list from Tony
> Rutkowsky, of whom yesterday NSi declared that he worked for them.

*I* am not at all certain of their legitimacy.  (I am very anxious not to
be misunderstood here.  I am not saying that ICANN is illegitimate.  I am
saying that the issue remains to be determined.)  I think legitimacy of a
self-governing, private, regulatory body concerned with the Internet must
be earned.  So far, on the whole, it is instead being squandered, which is
rather worrying.  I speak as a person who has been thinking and writing
about law and the internet for several years, and who participated in the
WIPO process as a member of the Panel of Experts.  You are welcome to look
at my home-page at http://www.law.tm to get some idea of where I am coming

I would venture to say that a substantial percentage of the (financially
disinterested) academics I know who follow this issue carefully are at
least as dubious about ICANN as I am.  Speaking personally, I am quite
annoyed at being dismissed as some sort of NSI shill.  I have very great
criticisms of NSI for poor service, monopoly pricing, bad dispute
policies, and taking the government to the cleaners in contracting.  But
that is a separate issue.

> http://www.latimes.com/HOME/BUSINESS/t000054084.html
What do his comments have to do with mine?  How can there even be "guilt"
by association when I barely know the man? (I've heard him speak, I once
shook hands with him, I doubt he could pick me out of a lineup...).

> We are looking for a way in which we can make things as open as possible
> and still be operational. We hope that by the time the Names Council has to

This is a very welcome statement.  It is also surprising, since the
techniques exist and are well known.  See, for example, the IETF system of
open debate in which decisonmakers all participate.  And, as you noted in
an earlier post, there is always the option of netcasting proceedings for

> start deciding on policy, all the constituencies will be operational and we
> will be able to make sure anybody can listen in in any of our meetings,
> might they be physical meetings or teleconferences.

I would put it differently.  It would be unwise, and perhaps immoral, to
take any decisions until all the stake-holders are represented.  In fact,
it would be 'worse than crime: a blunder'.

A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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