IP: Gordon Cooks Final Installment

[Dave Farber <farber () cis upenn edu>]

X-Sender: cook () pop3 netaxs com
Date: Tue, 6 Oct 1998 17:15:44 -0400
To: dave () farber net
From: Gordon Cook <cook () cookreport com>
Subject: my final installment from last night

in order not to give IP a distorted picture of my research I really wish
you would be kind enough to publish what I sent you!!!!!

A major 180 degree turn in my conclusion that the US was responsible for
the negative partts of ICANN to the EC being responsible.....!!!!  in case
youi missed it here it is again

WHITE HOUSE USES ICANN TO PLACATE THE EC & FAILS TO INFLUENCE US CORPRATE
BEHAVIOR ON PRIVACY -  THOSE LEFT OUT OF IANA PLAN UNITING TO PRESENT
ALETRNATIVE TO IRA

SUMMARY

This short essay corrects what I am now convinced is the one major error in
my post last night.  To the contrary the major faults in the ICANN by laws
and board are not there due to American arrogance directed at the Europeans
but they are there because in an effort to assuage European anger at the
October 25th privacy directives deadline, the White House bent over
backward to give the EC far more influence on the design of ICANN than was
wise.  This essay ends with a summary of the new alliance between the Open
Root Server Corporation and the Boston Working Group which shall shortly
have a full alternative proposal to that of ICANN on Ira Magaziners desk.

INTRODUCTION

I am receiving a lot of feedback from last night's post on the
international implications of the wars over ICANN.  The gist the feedback
is that my analysis is very accurate with one major exception.  On the
basis of new information I am being given I believe that I may indeed have
been mistaken in my assumption that ICANN has been designed the way it has
in order to "stick it" to the Europeans.

To the contrary, ICANN's bureaucratic, non-accountable, non-membership
design is in place because the White House is desperate to toss any kind of
a bone possible to the European commission in a last ditch effort to avoid
an October 25th Privacy statutes implemented trade war with United States
at a time of extreme grave risk for the world economy.

ICANN AT THE END BECAME STRICTLY A CLOSED DOOR DEAL BETWEEN GOVERNMENTS

All the officially nominated board members of ICANN were nominated by their
respective governments.  I do not know if the EC was given a veto power
over American nominees, but I am reliably told that one reason the Board
came out so late is that earlier nominees by EC for the European slots were
totally unacceptable to the American side.

One very knowledgeable observer anticipates that on October 25th individual
Privacy advocates will file suit in the United Kingdom to force local
courts to implement the European Privacy commission directives.  Such that
while the British government might wish to hold off, its citizens actions
would give its courts no choice. One further new ones I failed to
understand is that we are talking about physical transborder in formation
flows.  In other words not only would network-based financial transactions
be stopped but that use of services like Federal Express to deliver
payments would be forbidden.  Thus what is at stake is not only transborder
flows of information whether electronic or physical but also all American
commerce carried on with European Union countries.   (For a number of years
some US companies have been barred from returning the physical personnel
records of their employees to US.)

This outcome has been known to the players for years.  That we are now in a
situation where each side seems determined to put a bullet into the brain
of the other is, in no small part due to the intransigence of American
companies like America Online, Dunn and Bradstreet, IBM, TRW and its
compatriots in the credit industry, Mastercard, Visa, American Express and
generally unknown third parties who do direct marketing.  These comapnies
have assumed that, thanks to American economic muscle and technology
prowess, they could continue business as usual indefinitely and ignore
issues of European national sovereignty with impunity.  The role of
lobbying groups like the GIP, Internet Alliance and Association for
Interactive Media is less clear to me.

THE SOVEREIGNTY OF THE DATA MINERS - "Safe Harbor"

Now that we have walked right up to the brink from which there may be no
stepping back, these American corporate behemoths have gotten nervous.
They have held a meeting at the State Department last week and put together
a "safe harbor" plan whereby the they would certify, presumably to some arm
of the American government, that they were respecting European Data Privacy
concerns.  The idea is that the EC might grant them exemption from the
October 25th enforcement of the privacy directives.  One problem is that it
has been almost impossible to agree on verification -- in other words, if
IBM joined, how would the Europeans know that IBM was really doing what it
was committed to do?  Another problem has been one of agreeing on a means
by which EC citizens could see what was held about them and demand any kind
of corrections or purges of data.  Furthermore the safe harbor plan is
something that would have to be published in federal register and, even if
all other problems could be solved, would, therefore, never be ready in
time to save us from the October 25th from drop dead date.  It is further
said that this weekend's G-7 a meeting in Washington has brought home to
both sides the absolute urgency and of finding an immediate solution and
not stepping over the brink on October 25th.

Not much can be done, given the average American's ignorance of the harmful
domestic impact of data mining by American companies, and the Congress'
mindless infatuation with the President's sex problems.  Since on the issue
of data Privacy we have been for years blatantly offensive to the European
Union's concepts of sovereignty, we are now trying to make amends by
letting them design into the ICANN bylaws an uaccountable, public authority
structure that bears some resemblance to the ITU.  In penance for belated
recogniction that our data mining companies have led the Clinton
Administration into a very dangerous showdown, we are prepared to throw to
the EC undue influence over ICANN.

DG-4 AGAINST NSI

DG-4, the European Commission Directorate General on anti-trust insisted
that clause (d) and (e) come out of section 4.1 of the bylaws.  We took it
out. DG-4 has been the entity insisting on the dismantling of network
solutions.  Why have we fouind it necessary to pay so much attention to
DG-4?  One observer offered the following hypothesis.  The Directorates
General of the European Commission must exert their power rigorously so
that you know they are there.   For every time a European governmnet
changes, some people wonder if the change means the EU is still in place.
Loud assertions on policy by the Directorates are the EU's way of letting
the rest of us know that it is still strong and healthy.

We have painted ourselves into such a corner on the privacy question that
Becky Burr and her technology-ignorant attorney have wittingly gone
*outside the conditions* of the cooperative agreement in demanding whatever
will satisfy DG-4.  Combined with Becky's total ignorance of the technology
involved and its own understanding of the government's motives, NSI is
building a more effective resistance.  So far SAIC is staying "in the
hanger" on this one and not moving to kill NSI as i had feared. While some
think that Joe Sims has been effectively working for Ira Magaziner all
along, others disagree and point to Postel's having convinced Sim's to
steal the final march on NSI with draft 5 two weekends ago while NSI's back
was turned in weekend long negotiations with Becky.  But others appeared
equally convinced that Postel and Sims would not have done what they did
without Ira's approval.

ORSC/BWG to OFFER AN ALETRNATIVE

Meanwhile the Open Root Server Confederation (ORSC) is working to
incorporate into a combined agenda the by-laws of the Boston Working group.
The combined effort using the Incorporation shell of ORSC seeks to submit
its own application for the hand over of government services by midnight
Pacfic standard time.  This application will include the Boston working
group bylaws with a few critically important modifications. The project is
moving foreward with the assistance of a growing number of people
originally involved in here-to-fore widely divergent efforts.  It will also
include a cover letter touching on the key points covered in the ICANN
cover letter and including other arguments in favor of its adoption.  While
the by laws are neither pro nor anti NSI, they do add language protective
of TLD stakeholder interests that have accumulated over the last several
years. It submits an open list of board members with Einar Stefferud
currently there only in his role as Director of ORSC the incorporation
shell.  Furthermore the combined ORSC/BWG group hopes hopes to attract
growing support and community consensus for its efforts..
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