IP: David Post -- What I heard at the ICANN hearing

[Dave Farber <farber@cis.upenn.edu>]

>
>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 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         
>http://www.temple.edu/lawschool/dpost.html
>Also, see http://www.icannwatch.org 
>****
>
>
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