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IP: David Post -- What I heard at the ICANN hearing
From: Dave Farber <farber () cis upenn edu>
Date: Sat, 24 Jul 1999 17:42:40 -0400
Date: Fri, 23 Jul 1999 11:17:28 -0400 To: declan () well com From: David Post <Postd () erols com> Subject: FWIW, What I heard at the hearings [this will be posted at http://www.icannwatch.org, and thought it might be of interest David] 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. ANSWERS THAT I WISH HAD BEEN PROVIDED AT THE HEARINGS 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 latter. 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 ahigher-level contact . . . and that it would be useful for DOC to hearfrom 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 http://www.temple.edu/lawschool/dpost.html Also, see http://www.icannwatch.org **** -------------------------------------------------------------------------- POLITECH -- the moderated mailing list of politics and technology To subscribe: send a message to majordomo () vorlon mit edu with this text: subscribe politech More information is at http://www.well.com/~declan/politech/ --------------------------------------------------------------------------
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- IP: David Post -- What I heard at the ICANN hearing Dave Farber (Jul 24)