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> roving_reporter t byfield

Mon Sep 18 20:41:10 EDT 2000

ICANN MAL candidate questionnaire: Robin Bandy

[Robin Bandy is no longer an MAL candidate.]

1. ICANN presents itself as a "technical coordination body for the Internet." Do ICANN's activities to date support this description?

Not really. Most of ICANN's focus has been on policy issues. DNS hasn't really any need for a formal technical body, since the DNS standards are all set by the BIND programming group, and ICANN has certainly not been deeply involved in that.

It's possible, of course, that the ICANN Board see the establishment of new TLDs (for example) as a technical issue, but that would just be a dodge. Their focus to date has been on guaranteeing that the dispute resolution process functions to support the claims of large trademark holders and in maintaining the profitable restrictions on (and the ICANN control over) the default TLD space.

2. ICANN describes itself as "transparent," "bottom-up," and "consensus-based." Do ICANN's activities to date support these descriptions?

These are definitely silly claims. The claims to transparancy and "bottom-up" initiative are quite adequately debunked on the ICANN Watch web site (at "http://www.icannwatch.org"), so there's really no need to get into detailing them here. The fact that there are at least five functioning alternative root DNS systems available on the Net should be sufficient to demonstrate that ICANN is _not_ representative of a consensus on the Net. The standing of the candidates who oppose much, if not all, of ICANN's actions should also suggest that there is not nearly as much support for either their views or their actions as they claim.

3. The "stability" of the internet is a staple if ICANN's rhetoric, as if to suggest that the net is a fragile entity that needs to be protected. What do you think ICANN is protecting it from?

I wouldn't word it exactly that way, since what they mean by "the Net" when they talk about stability is very different from what I would mean.

Judging by their actions, ICANN uses the term to mean those organizations which have either control or financial interests which they wish to pursue on the Net. That would be governments (mostly the U.S. government, which is understandable since the U.S. government is responsible forcreating ICANN) who see the Net as a threat to their control over their citizens and large businesses (particularly business who control a distribution chanel, such as the domain registrars and the media corporations). _That_ is the "Net" which ICANN was established to protect.

I would use the term to refer to the vast majority of Net users who are not representatives of governments or large businesses; the people who use the Net to communicate and publish directly to their readers, listeners and viewers. Yes, many of the Net's users do engage in commerce online, but it is certainly not the core interest of the usership, as ICANN seems to believe.

ICANN, however, is itself one of the biggest threats to what I would refer to as "the Net". What they want to protect the Net from is exactly the Net's majority usership and the manner in which they use it.

4. "Global" top-level domains pose a basic quandary, which can be summarized thus: everyone in the world can point somewhere and say "there," but there can only be one there.com, one there.net, and one there.org. Many people have legitimate claims to what, within the limited context of DNS, appear to be the same words. Rather than expanding the namespace in order to produce a diversity more adequate to the rapidly expanding demand for new domains, ICANN has devoted much of its resources during its first two years to developing a global policy for arbitrating conflicts. In the balance, was this the best approach?

Certainly not. ICANN's approach has been to try to take trademark, particlarly American trademark, from a topically and geographically bounded concept and turn it into an unrestricted global concept. Trademark, as a legal concept, is intrinsically only applicable within geographic regions. ICANN's response has, basically, been to declare the entire network to be a region subsidiary to Amercan trademark law.

A much better solution is to maintain a strict Charter for TLDs, which definies the types of uses and organizations for which each TLD is to be used and which reestablishes the topical seperation, and then to recognize that, as the namespace is a global institution, regional claims cannot reasonably be valid in it.

If both claimants to a domain reside within the same legal jurisdiction, it is simply a matter for that jurisdiction's courts to decide whether their names are too similar. If both reside in different jurisdictions, there can be no legal question over the claims, as there is no appropriate control legislative body. It is also important to recognize that similarity is only to be expected and therefore the owner of aol.com (to take a recent example) has no legitimate claim to aolbeta.com regardless of how similar the names may.

This is the perspective taken by The OpenNIC (at http://www.opennic.unrated.net) in our namespace design.

5. Should the refusal of the country-code domain registrars to pay the invoices ICANN submitted to them be seen as a referendum on ICANN's legitimacy as a "global" organization?

Oh yes, and it was marvelous to see. The ccTLD registrar's decision that any fees to an American government contractor are simply a cross- boundary tax was completely resonable and is a good demonstration of why ICANN cannot possibly be a legitimate administrator of a global resource like the DNS namespace. ICANN, as an American corporation, is necessarily an extension of American (and Californian) control.

To be a legitimate global authority, the organization cannot be subsidiary to any regional organization. By incorporating in the U.S. (in California), ICANN is subject to the laws of a the state of California and the United States and is dependant on those organizations for its very existence.

6. ICANN's Uniform Dispute Resolution Policy (UDRP) stipulates that "the complainant shall select the [dispute resolution] Provider from among those approved by ICANN by submitting the complaint to that Provider." Is this an appropriate way to assign resolution providers to cases?

Yes. It virtually guarantees that the complainant will win, provided that they can find a resolution body sufficiently similar in their attitudes or interests regardless of any merit in their claim. The global DNS will have to manage its own dispute resolution system, since no outside body can possibly be a legitimate arbiter of a global resource. Even the U.N. is not a truly global body.

7. ICANN often mentions its limited resources as a decisive factor in justifying various actions -- in other words, there seems to be a serious disjuncture between ICANN's means and its goals. Has this cast doubt on the results of ICANN's activities to date?

Feh. Firstly, their claims that the membership signup and voting site was so useless because they didn't have sufficient resources are just plain silly. Any halfway competant server admin with a few thousand dollars to spend on hardware can build a system that could register 200,000 people over the course of a month and if they'd asked there are lots of big networks which would have donated either server space or bandwidth to the system.

This certainly casts doubts on the results of the election, particularly since there was a posting to Slashdot yesterday (see comment #25 on "http://slashdot.org/article.pl?sid=00/09/06/107232&mode =thread") describing how he managed to register twice as an ICANN voter. ICANN's mismanagement of the election, from stacking the ballot with their own candidates to the failures in their automated system to the absence of a neutral election monitoring organization, make it unlikely that the election will yield individuals who are actually representative of the usership. Any that do win through will do so despite, not because, ICANN's actions.

8. The law firm Jones, Day, Reavis, and Pogue has played a huge role in ICANN, mainly through Joe Sims, ICANN's Chief Counsel, and Louis Touton, ICANN's Vice-President, Secretary, and General Counsel. Sims, with JDRP since 1978, was intimately involved in crafting ICANN's bylaws and selecting the initial boardmembers; he remains a cental figure at board meetings. Before joing ICANN, Touton spent the last 18 months of his 18-year practice at JDRP as a legal advisor involved in ICANN's formation, registrar-accreditation and dispute-resolution policies, and the NSI/DoC/ICANN agreements. Is it appropriate for an organization such as ICANN to be so closely aligned to a single law firm?

No, especially as that firm is ICANN's single largest creditor. It's even more inappropriate to have an American legal company designing rules by which a global system will be run without any real participation from outside.

9. ICANN may soon be a kingmaker, with the power to delegate the administration of new top-level domains. This will almost certainly be a multibillion-dollar business. Is an adequate system of checks and balances in place to ensure that ICANN's officers and staff do not abuse or exploit this power?

Hah. There's no system in place at all, much less an adequate one. They've already begun to exploit it by setting at non-refundable "application fee" of $50,000 simply to propose a TLD.

With a board composed of trademark lawyers and representatives of governments and large businesses, what would you honestly expect?

10. Based on ICANN's actions to date, should participants in the Membership At Large, specifically, and netizens, generally, trust ICANN to honestly report the election's outcome?

This is similar to question 7, but brings in the additional possibilty of conscious fraud on ICANN's part. I'm not certain that I want to go that far, though the process was certainly designed to minimize the possibility that a non-Board approved candidate would win. The general policy I'd subscribe to here is "never ascribe to malice what could be incompetance". It is entirely possible that ICANN's staff are seriously trying to make the best of a poorly designed process with the limited resources available to them.

I have no problem believing malice from a majority of the Board members, however, as they've already demonstrated that they'd prefer a puppet election to a real one. But I haven't seen any evidence that the staff in general follow this, so I expect that they will try to report as accurately as they can.



The above material is Copyright © 1999 by t. byfield.

The r_r began as a semi-collaborative nym on the <nettime> list, where it worked well; but the pseudonym precluded comments, and there was more to report than was good for the list, so now it -- or a mutation of it -- has resurfaced on TBTF. [ back to the roving_reporter]


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