FC: ICANN lawyer Joe Sims to John Gilmore: "Doesn't have a clue"

[Declan McCullagh <declan () well com>]

Previous Politech message:

"Salon interviews John Gilmore: 'It's time for ICANN to go'"
http://www.politechbot.com/p-03710.html

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Subject: Response to John Gilmore
To: dave () farber net, Declan McCullagh <declan () well com>
From: "Joe Sims" <jsims () JonesDay com>
Date: Wed, 3 Jul 2002 15:15:56 -0400

Since John Gilmore chooses to use my name in his imaginary history of how
we got to where we are, I thought it would be appropriate to lay out the
real facts.  Since both of you published the original interview, perhaps
you would think it appropriate to publish this response.

Perhaps Gilmore once had (or maybe still has)something to offer of value,
but that does not include either political science or history.  In the
World According to Gilmore, Vint Cerf is a traitor, Jon Postel was a
coward, and ICANN is just another manifestation of the military-industrial
complex at work.  Karl Auerbach is the modern day Martha Mitchell (I agree
there is some resemblance), and Joe Sims has single-handedly manipulated
this process to earn enormous fees for him and his law firm.  It makes for
a great story, and to people like Gilmore, and publications like Salon, I
suppose it is just an inconvenience that it is almost total fantasy.

Let's get rid of the greedy lawyer canard up front.  This point simply
reveals Gilmore's lack of understanding of the law business.  I was fully
occupied before I was retained by Jon Postel, and would also be so today if
I was not representing ICANN.  The notion that I or Jones Day, which
provided more than $1 million of pro bono time to Jon Postel, and has since
the formation of ICANN provided its services at cost, is doing this for
money is a joke.  For one thing, there is not enough money in the world to
put up with the unadulterated BS of Gilmore and his more personally
offensive colleagues. The opportunity to avoid the daily garbage spewed out
by those, like Gilmore, that either don't know better or don't care what
the real facts are, is highly appealing to me.  As I have already
indicated, as soon as this reform process has reached a point where I feel
that I can retreat from this warzone, I plan to retire from this effort.

As for the rest of Gilmore's version of history, here are the relevant
facts:

1.  Gilmore says he was involved in the process of creating the original
ICANN bylaws, but that "they" ignored EFF's suggested wording changes to
fix what it saw as a lack of accountability.  I have a very distinct
recollection of those proposed changes, and of at least one conversation
with Gilmore on them; the particular provision that sticks out in my mind
from the suggestions was his proposal that the ICANN bylaws incorporate the
United Nations Declaration of Universal Human Rights.  Gilmore is certainly
correct that I was not enthusiastic about this suggestion, but perhaps
others will not be surprised that neither was anyone else involved in the
process, including Jon Postel.  In fact, I believe Jon made that point
directly to Gilmore, who was then and remains today on the extreme fringe
of rational thinking on ICANN issues.  The general reaction to his
suggestions were that they were either unworkable, or as illustrated by the
UN point, just plain silly.

2.  Gilmore's understanding of the Auerbach litigation is either incomplete
or disengenuous.  The issue in the Auerbach litigation is whether each
individual director of a non-profit corporation has the unilateral right to
make decisions about the distribution of information from the corporation,
or whether that responsibility rests with the Board as a whole.  Karl
Auerbach has always treated his seat on the Board as an individual duchy,
his to preside over without regard to the views of his fellow directors,
and he has refused to even discuss this issue with the rest of the Board.
Contrary to Gilmore's assertions, this litigation has nothing to do with
access to information; Karl and all other directors have access to any
information anytime they want, and other directors have taken advantage of
this right on several occasions.  What an individual director cannot do is
to impose his individual views on the entire organization, since that would
mean that there was not one Board but rather several independent Boards,
each made up of a single director.  Auerbach understands this, which is why
he has refused numerous offers to actually review the materials in
question, and why he has yet to take his case to the Board itself, as
called for by ICANN policy.  Gilmore may or may not understand it (from his
statements it is not clear), but if he does not, his description is simply
ignorant rather than disengenuous.

3.  I won't bother to respond to his SAIC story, since it is irrelevant to
the issues facing ICANN today.  I would simply note that both SAIC and
Gilmore appear to have profited from the same economic environment.

4.  Gilmore seems to be saying that the ICANN Board is too big and too
divided to be functional.  In his view, somewhat inconsistently, the Board
is loaded with "yes men, who'll support management whether they're right or
wrong."  Here again, the real facts are apparently just an inconvenience
for Gilmore, to be discarded if they interfere with his conspiracy theory.
In fact, the Board is not divided at all; the vast majority of its votes
result in a larger than two-thirds majority.  It is true that Karl is
frequently in the minority, but that minority is often a minority of one,
or less frequently two or three.  I find the math interesting; the fact
that the vast majority of the Board (including those others elected by the
general public) does not agree with Auerbach to Gilmore means that the
Board is dsyfunctional.  Others might conclude, on the same facts, that it
is Auerbach that is dysfunctional.  It is interesting, for example, to look
at what happened with the latest Board decision on reform -- to adopt the
Blueprint for Reform proposed by the Evolution and Reform Committee in
Bucharest.  Karl did not even deign to participate in the Bucharest
meeting, which was probably one of, if not the, most important meetings in
ICANN's history, since it determined how ICANN would be reformed and
restructured for the future.  Karl was AWOL, choosing not to even attempt
to participate by the conference phone link that ICANN had established for
his sole use.  But the rest of the Board was there -- every single one of
them -- and they unanimously adopted the Blueprint as the roadmap to
ongoing reform.  This unanimous vote included ALL of the directors chosen
by the Protocol Supporting Organization, ALL the directors chosen by the
Address Supporting Organization, ALL the directors chosen by the Domain
Name Supporting Organization, and perhaps most importantly for this point,
ALL the directors elected by the general public -- except for Karl, who
chose to abdicate his fiduciary obligation and simply absent himself from
the proceedings.  Now, to Gilmore this unanimity no doubt merely reflects
the fact that all those people, selected from all those different sources,
are simply "yes men," merely doing what they are told by management.  This
gives an awful lot of credit to management, and impugns the ability and
integrity of a large number of people, including Vint Cerf and others,
whose contributions and devotion to the Internet are at least as great as
those of John Gilmore.

5.  Finally, in response to a question on the international situation,
Gilmore says he is no expert, and then proceeds to prove it.  Gilmore is
one of a group of American critics who assume that American values and
reactions are and should be determinative in decisions about ICANN, and who
thus dismiss as inconsequential the contrary views of those around the
world.  To Gilmore, there apparently are no other relevant governments
other than the US government, and he certainly demonstrates no
understanding at all of the complicated geo-political issues swirling
around ICANN.  This head-in-the-sand attitude is unfortunately quite common
among ICANN's American critics -- who not coincidentally are far louder
than the non-American critics, which may mean there are fewer of the
latter, or may mean only that the Americans are particularly boorish in the
enunciation of their views.  The plain facts are that the US government
cannot act unilaterally in this area; the Internet, after all, is a global
resource, not the property of the United States.  Just as we have seen in
the US government approach to the .us registry, other national governments
have strong views about these issues, and their views are not uniformly
consistent with those of John Gilmore or Karl Auerbach.  To those folks,
this just means that those others don't understand the true values of the
Internet; to those others, the views of the Gilmore's of the world simply
demonstrate how incredibly parochial some people can be.  ICANN must
accomodate all those views, ranging from the Gilmore's to those of
governments around the world, and try at the same time to produce a
workable organization that is not as cumbersome and unresponsive as the
typical multinational governmental bureaucracy.  Whether Gilmore
understands it or not, creating global consensus is hard work, and requires
compromise, not extremism.

The most outrageous part of Gilmore's interview was his description of Jon
Postel as "spineless."  To be candid, Gilmore doesn't have a clue about
most of what he is talking about, and thus his views are basically
worthless.  I hope that this effort to provide some balance will allow
interested readers to make their own judgments about what is going on here.




Joe Sims
Jones Day Reavis & Pogue
51 Louisiana Avenue NW
Washington, D.C. 20001
Direct Phone:  1.202.879.3863
Direct Fax:  1.202.626.1747
Mobile Phone:  1.703.629.3963

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