<nettime> roving_reporter spinoff: on ICANN

[t byfield <tbyfield@panix.com>]

[below is the first entry in a column/log i'll be writing for
 TBTF, 'roving_reporter,' a mutation of nettime's own r_r. as
 with all things nettimish, it's indy, non-exclusive, and DIY.
 one of my reason for taking *this version of* r_r to TBTF is
 the latent (though some would say manifest) conflict between 
 nettime's push-back goal and the r_r's tendency to transform
 the list into 'media.' i don't yet know how often i'll be up-
 dating the r_r, but i'll send periodic summaries to the list.
 in the meantime, r_r #1 on ICANN:

 perma-URL:                 <http://tbtf.com/roving_reporter/>
 this issue:       <http://tbtf.com/roving_reporter/jdrp.html>
 and TBTF itself:                           <http://tbtf.com/>
 
 cheers, t]


> roving_reporter     t byfield     Tue Nov 16 12:26:57 EST 1999 

UDRP? JDRP. 

Just five years ago WiReD ran an article about a certain domain,
"mdconalds.com," and how a certain McDonald's Corp. had never even heard
of it. It quoted the InterNIC's supervisor of registrations--that is, of a
2.5-person department--as saying, "The problem with the Internet is, who's
in charge? When we figure that out, there will be a meeting." [1] After
rather more than one meeting later, someone's finally in charge. You're
probably thinking "ICANN." Maybe. But my nose tells me the answer might be
more like "Jones Day Reavis and Pogue." 

JDRP 

JDRP is a 1200-strong multinational law firm [2]. Among its partners are
Joe Sims [3] and Louis Touton [4]. These two lawyers, more than anyone
else--more than Ira Magaziner, more than the former Jon Postel, more than
ICANN's "initial" and "interim" board members--have defined the course
that has led from the final days of Postel's IANA to the tortured
dissolution of NSI's monopoly to the structuring of ICANN and, most
recently, to ICANN's "Uniform Dispute Resolution Policy." [5]

Joe Sims 

Sims, a Washington D.C.-based antitrust lawyer, entered the stage as a pro
bono lawyer for Jon Postel and/or his Internet Assigned Numbers Authority
(IANA) [6]. He acted in this capacity through the release of the Green
Paper on 23 March 1998 [7], the release of the White Paper on June 5 [8],
and Postel's death on 16 October. After Postel's death, he became pro bono
counsel for IANA's parent organization, USC's Information Sciences
Institute (ISI) "on behalf of the 'IANA function'" [9]. In these roles, he
was uniquely positioned to draw up the founding documents for a White
Paper-stipulated "newco," [10] to tap self-confessed naifs like Esther
Dyson for its board [11] and, when his creature ICANN was chosen by the
U.S. government, to serve as its chief counsel. 

ICANN's polite critics have called it a "lousy governance model"  with a
"byzantine" structure (Michael Froomkin) [12], "hopelessly complex" and
"insulated from accountability by [its] organizational shells" (Tony
Rutkowski [13]--see his organizational chart [14]), and "unsuable" (Einar
Stefferud)  [15]. In other words, Sims--a very successful antitrust
lawyer--seems to have done a superb job of designing ICANN. 

Evidently, though, his initial handiwork still needed to be broken in a
bit. Critics have accused ICANN of violating its by-laws again and again
[16]. These critics aren't exactly disgruntled malcontents, either: at
ICANN's recent board meeting in L.A. [17], the U.S. Small Business
Administration (SBA)  hand-delivered to the board members (and read aloud
in full in a comment period) an aggressively critical letter charging,
among other things, that "procedural questions have arisen at almost every
stage of ICANNšs activities..." [18]

One thread is particularly prominent among these irregularities:  ICANN's
steadfast refusal to grant effective representation to independent domain
holders so as to counterbalance--as stipulated by the White Paper--the
representation of intellectual-property advocates. Recounting this history
would be a painfully long and complex (think "byzantine") task, but
consider the following. 

After Network Solutions decided in September 1995 to charge $100 per
registration, Postel proposed to the Internet Society to add, in one fell
swoop, 150 new global top-level domains ("gTLDs" like .com, as opposed to
country-code TLDs [ccTLDs] like .uk), and to add 30 more in each
subsequent year [19]. Four years later, ICANN is still spinning its wheels
on the idea of new gTLDs--which would be a living nightmare for commercial
concerns intent on maintaining what John Gilmore sagely called the
"congenital confusion between trademarks and domain names" [20]. However,
in the year during which ICANN has been run by unelected--that is,
self-appointed--"initial" and "interim" boards, it has managed to steer to
passage its "Uniform Dispute Resolution Policy" (UDRP). 

GAC 

Doing so involved constituting and coordinating "GAC," the "independent
advisory" Government Advisory Committee [21] that meets behind closed
doors and includes representation from WIPO, the World Intellectual
Property Organization--a U.N. special agency whose operating budget is 88
percent financed by "fees generated by... services it renders to the
private sector." [22] (The other seventeeen U.N. special agencies--for
example, UNESCO [Education, Science, and Culture] don't rate in GAC's
book.) It also involved waiting for, and digesting, WIPO's "Final Report
[on the] Internet Domain Name Process." [22] It involved synthesizing that
report with staggering amounts of input from other quarters into the UDRP,
a contract imposed upon ICANN-accredited registrars. And, most curiously,
it involved doing this all before the L.A. meeting, where the elected
board member could vote on it.

In an open comment period at the L.A. meeting, there was a very
enlightening exchange on this question between Ellen Rony and Esther
Dyson. Rony asked--as have many, many others--why the "interim" board was
in such a rush to pass the UDRP. Dyson, ICANN's Chairman of the Board,
countered that the outcome would have been the same anyway because "the
new board members are in fact more representative of big moneyed interests
than the original [i.e., interim] ones." That's not very comforting; nor
is the fact that the quip is absent from ICANN's official "scribe's notes"
[23] but present in the video [24]. 

Louis Touton 

Ah, yes, the man responsible for overseeing the UDRP? Louis Touton,
litigator, partner at Jones Day Reavis and Pogue. If some corporation with
a wall of litigators decides that you're "squatting" on their cyberturf,
best of luck to you--but you can sleep easy knowing that Touton waived his
salary for arranging the UDRP [25]. But don't worry about him: on 19
October he was appointed ICANN's Vice-President, Secretary, and General
Counsel [26]. My gut tells me that great things are in store for him. 

Neither his nor Sims's bio is available on ICANN's site. It seems strange,
since the two men seem to have cast awfully long shadows over ICANN's
awfully short and checkered past. Touton's isn't even available on JDRP's
site. 

My own impression, having sat through four numbing days of the ICANN
meeting, is that the ICANN board, with a few possible exceptions, is
neither venal nor corrupt but, rather, clueless:  they spent an inordinate
amount of time listening to Sims and Touton tell them what was happening. 

Newly elected board member Amadeu Abril i Abril put it best when he spoke
of the lingering problems with the NSI agreements: "I don't like these
agreements... This is the best agreement we could have, given the
circumstances... What I still wonder is why the circumstances were
artificially altered." [27] He went on to say that he thinks the U.S.
government owes us an explanation of how this whole fiasco came about. I
think Sims and Touton owe it to us. And once the full force of the UDRP
become clear, I think you'll agree. 


NOTES

[1]<http://www.wired.com/wired/archive/2.10/mcdonalds.html>
[2]<http://www.jonesday.com/html/overview.asp>
[3]<http://www.jonesday.com/html/biosquery.asp?ResultSet=Single&Column=ID&DataValue=1091>
[4]<http://www.jonesday.com/html/technology%5Fissues%5Fpractice.html>
[5]<http://www.icann.org/minutes/minutes-24oct99.htm>
[6]<http://cookreport.com/whorules.html>
[7]<http://www.ntia.doc.gov/ntiahome/domainname/domainname130.htm>
[8]<http://www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.htm>
[9]<http://cookreport.com/whorules.html>
[10]<http://www.ntia.doc.gov/ntiahome/domainname/icannnewco.htm>
[11]<http://cyber.law.harvard.edu/icann/cambridge-1198/archive/transintro.html>
[12]<http://www.cpsr.org/conferences/dns99/spkr-Froomkin.htm>
[13]<http://www.cpsr.org/conferences/dns99/spkr-Rutkowski.htm>
[14]<http://www.icannwatch.org/images/orgchart.gif>
[15]<http://cyber.law.harvard.edu/icann/cambridge-1198/archive/transcomments.html>
[16]<http://www.google.com/search?q=ICANN+bylaws+violation&num=100&sa=Google+Search>
[17]<http://www.icann.org/minutes/prelim-report-4nov99.htm>
[18]<http://www.sba.gov/advo/laws/comments/icann99_1027.html>
[19]<http://www.isoc.org/internet/issues/dns/testimony_written_970930.shtml>
[20]<http://www.icann.org/comments-mail/comment-ip/msg00025.html>
[21]<http://www.icann.org/governmental-com.html>
[22]<http://wipo2.wipo.int/process/eng/final_report.html>
[23]<http://wipo2.wipo.int/process/eng/final_report.html>
[24]<http://cyber.law.harvard.edu/scripts/rammaker.asp?s=cyber&dir=icann&file=icann-110399&start=1-53-05&end=2-49-59>
[25]<http://www.icann.org/correspondence/touton-to-roberts-18oct99.htm>
[26]<http://www.icann.org/announcements/touton-pr19oct99.htm>
[27]<http://cyber.law.harvard.edu/scripts/rammaker.asp?s=cyber&dir=icann&file=icann-110499&start=2-42-5>


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