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Re: [IDNO-DISCUSS] FWIW, What I heard at the hearings

David and all,

  When Esther Dyson makes this statement, "ICANN is
nothing more, or less, than the embodiment of the consensus of the
Internet community as a whole."  You automatically know she is lying,
or shading the truth, pick your own term...  ICANN is a contrivance, and
has been from the very beginning.  It may have started out to be a good idea.
I once though so.  But with folks like Esther Dyson, Mike Roberts, and
Joe Sims on "Appointed" to the (Initial?) Interim Board, making statements
such as this one by Esther Dyson, you know right away that you have
problems.  Serious problems.  Mike Roberts doesn't want to know
if he has "Community Consensus", he made that quite clear right
after the singapore meeting publicly on Wired.com....

  Until or unless the ICANN has a constituted membership, and that membership
has the opportunity to VOTE on any and all policies that the ICANN (Initial?)
Interim Board takes, there can be not measurable "Consensus".  Consensus
without a method of measuring it, is no consensus at all...

David Post wrote:

[this will be posted at http://www.icannwatch.org, and thought it might
be of interest

What I Saw

or, more precisely, heard, at the Hearings on Thursday.  From my perch
up in Vermont I was, thanks to the Berkman Center, able to listen to
virtually all of Thursday's House hearings on the DNS and ICANN, and
offer the following somewhat random observations and thoughts about
what took place.

        My sense all along had been that what took place at the hearings was
less significant than that they were called in the first place.  The
hearings were a great success even before they opened; does anyone thnk
that ICANN's more conciliatory tone over the past week or so (dropping
their $1 fee demand, agreeing to open up Board meetings) was not at
least partially triggered the call for hearings?  And, more
importantly, the fact that there were going to be hearings raised the
general level of awareness about these issues in the mainstream press
and elsewhere, generally increasing the amount of public discussion and
debate about what is going on.  The hearings themselves were destined
to be, and probably were, something of an anticlimax.

        But interesting and important nonetheless.  My sense of what happened:

1.      NSI got beat up pretty badly.  I have mixed feelings about this.
On the one hand, much of the beating was deserved; some of NSI's
positions are insupportable, and they have hardly behaved in a manner
above reproach, and I am prepared to believe that they are dragging
their heels on opening up the registry so that they can squeeze as much
as they can out of their preferred position as name supplier.  So a
nice public whipping is not uncalled for, and if that helps make NSI
more cooperative with other registrars entering this market that is all
to the good.

        But -- I don't believe that NSI poses the same kind of threat to the
Internet as a whole that ICANN does.  A monopolist at the root level,
with control over the entire name/number space, is just a lot more
dangerous than a monopolist over a portion of that space, even the
portion of that space that is, at the moment, the most valuable.  If
the goal is to slow ICANN down, to keep it from overextending its
limited mandate and to limit its policy-making activities until (as
Mikki Barry so nicely put it at the hearings) all of its participatory
structures are in place -- and in my view that is a pre-eminent goal at
this time -- NSI happens to be one of the few counterweights to ICANN's
power out there, and I worry a bit that weakening it too severely
inhibits achievement of that goal.

        There was an extended discussion of NSI's unwillingness to "recognize"
ICANN by signing the accreditation agreement.  [While everyone keeps
denying that ICANN has any sort of "governance" role, why do they keep
talking about whether they are "recognized"?]  NSI took the position
that it would do so when ICANN started behaving as a consensus
operation in accordance with the White Paper.  Jim Rutt, NSI's CEO, was
pressed:  WHO DECIDES whether ICANN is behaving that way -- NSI?  And,
if so, doesn't NSI have a financial incentive to delay that for as long
as possible?

        Rutt's response was dismal; he equivocated very ineffectively, finally
saying "I'll get back to you on that."  Maybe he should have said:
"Damn right -- because no one else is playing that role right now.
Sure, we have a financial incentive to delay, no use denying that --
just as the new registrars have a financial incentive to sign any
damned thing ICANN thrusts before them as quickly as possible.  ICANN's
accreditation agreement was an outrage -- asserting total and complete
policy-making control over anyone who wants to participate in the DNS.
Until ICANN is constituted in a proper fashion and until it truly acts
on the basis of consensus in the Internet community, giving it that
kind of authority is a disaster and we should not accede to it."
Something like that.  Just a thought.

2.      The Big Rush.  Commerce General Counsel Andy Pincus referred a
number of times to the need to act swiftly.  Commerce felt it "could
not postpone the introduction of competition until all details of ICANN
structure were finalized," and the "problem" with the current
negotiations between ICANN and NSI is the looming Sept. 30 deadline
(which, if I am not mistaken, is when the current Cooperative Agreement
with NSI terminates).  I believe that Commerce has been ill-served
throughout this process by an unnecessarily rapid timetable, and that
has been the source of many of the problems that we've seen.  I agree
completely with the many comments from Esther Dyson and others from the
DoC and ICANN side -- putting together a consensus-based organization
operating on a global basis is really difficult.  That either means (a)
we're just going to have to plunge ahead, come what may, and start
running this thing before we have the faintest idea that we do , or do
not, have a 'consensus' on anything, or (b) we're going to have to wait
until we figure that out before we start acting in a manner that we
claim is on behalf of the entire Internet community.  (b) seems like a
clear winner to me.  You can't impose your authority over others until
you have some source for that authority, and ICANN just doesn't have it
yet.  Mikki again hit the nail on the head:  it would have been
illegitimate if we had tried to apply the laws of the US while the
Constitution was still being drafted and nobody was yet sure what this
"United States" was going to look like and how it could claim to be a
trustworthy repository of authority.  Cart, meet horse.

3.      That Consensus Thing Again.  The hearings strengthened my own
sense that much of the difficulty with this process is a complete and
utter disconnect between what various people mean when they talk about
"consensus."  Unlike others, I believe that Dyson is sincere (and
correct) when she says that the key issue here is whether the
management of this resource is going to be done by governments, by
private economic interests, or by the Internet community as a whole,
and I believe she is sincere when she states her goal of achieving the

        But I simply cannot believe it when I hear her say that "ICANN is
nothing more, or less, than the embodiment of the consensus of the
Internet community as a whole."  [I think I got that quote correct off
of the webcast].  Should be, maybe -- but is?  I cannot for the life of
me fathom how she could believe that ICANN's actions to date embody
some consensus of Internet users.

        Maybe its time for some new thinking about what "consensus" really
means.  I think all would agree -- there is a "consensus"! -- that the
IETF operates by "consensus."  Proposals are debated in public view,
within working groups that are SELF-ORGANIZED and OPEN TO ANYONE, not
via pre-defined "constituencies" that had specific "membership
qualifications."  [I particularly loved the moment in the hearings
where Becky Burr of DoC was asked why Taiwan was excluded from ICANN's
Government Advisory Committee, and she explained that the ICANN By-laws
had recently been changed to allow "significant economies" to
participate, not just "governments" -- somehow I have to think that
such a "policy decision" never was made, never had to be made, within
the IETF [or NSI, for that matter -- another reason I'm less nervous
about them than I am about ICANN  . . . ]  Proposals that achieve
"consensus" in these smaller groups are circulated to higher and higher
circles of the community, and eventually to the Community as a whole,
where they can be read and commented on by anyone over an extended
period of time.  No votes are taken, participation at some face-to-face
gathering does not entitle your voice to any greater weight than any
other, and majorities do not prevail.  If ICANN is serious about
becoming a consensus-based operation -- and I still hope and assume
that it is -- it might start thinking about how to replicate this model

4.      The Smoking Gun
        Hearings are theater, and all good theater needs the climactic,
cathartic moment when the unexpected occurs.  Gotta give this award to
Joe Sims' email to the Department of Justice, which was made public at
the hearing and in which Sims reports that he "suggested" to DOJ that
it intervene in ICANN's negotiations with NSI and the Department of
Commerce, that "one thing DOJ could do is increase the level of
pressure on DOC, by some form of formal communication or a
>higher-level contact . . . and that it would be useful for DOC to hear
from significant organization that they were perfectly willing and
capable of stepping into NSI's shoes with little difficulty, assuming
access to the root files."

        Curious, this.  I don't quite know what to make of it.
"Ill-considered" is one adjective that springs to mind.  Although I
don't think it is unheard of for the lawyer representing a private
company to talk to government officials to request their assistance in
some competitive struggle -- Congress calls this "constituent service"
-- I think it fair to say that if ICANN is trying to earn the trust of
the Internet community that it needs to get out of the political back
rooms and start taking its case to the net community instead of some
back-channel DOJ contacts.
David Post
David Post -- Temple Univ. School of Law
802-464-3991   (summer '99)     Postd@erols.com
Also, see http://www.icannwatch.org
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