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> roving_reporter t byfield

Mon Sep 18 20:41:10 EDT 2000

ICANN MAL candidate questionnaire: Eric Grimm

[Eric Grimm 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?

No, they do not.

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

No, they do not.

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 was not aware that the Internet needs to be protected from anything other than ICANN and capture by old-economy interests. ICANN is heavily infulenced by old-economy mainstays and such interests are heavily over-represented in ICANN decision-making organs.

With the advent of the Internet, barriers to entry came crashing down and economies flourished as new market entrants and new ideas had an opportunity to establish themselves.

The "old economy" and the status quo have fought back with predictable results. These predictable results have been nothing but bad for the Internet and innivation.

ICANN is at the forefront of the effort to re-erect anticimpetitive barriers to entry and to suppress the activities of new competitiors and new market entrants.

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?

Absolutely not. Moreover, I am skeptical whether ICANN and WIPO have in good faith sought to "develo[p] a policy for arbitrating conflicts." Rather, the procedures are set up all wrong if the objective is fair and impartial resolution of disputes.

Rather, the whole purpose of the project appears to be a wholesale transfer of Internet naming rights away from rightful and proper registrants to slow-acting entities that filed to register them first. This policy was adopted despite the lack of any showing of any concrete harm from allowing domain name conflicts to be resolved in the marketplace. The only showing that was made was a showing that WIPO's constituency was upset by how things had been developed and the demonstrated fact that WIPO's constituency were shown not to be as smart as they had previously pretended to be.

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?

I had not thought of this, but such an argument could hypothetically be made. The question is whether the legitimacy of ICANN depends on recognition by nation-states. I am not convinced that nation-states, individually or collectively, should be vested with authority to determine which organizations or entities are "legitimate," and which are not. This, too goes for whether the U.S. Department of Commerce is vested with authority to proclaim the "legitimacy" of ICANN or any other so-called "global" entity.

Perhaps the test should depend on true consensus -- if large portions of the Internet community (including constituencies to which I belong) appropriately question ICANN's legitimacy, then ICANN should be considered illegitimate because consensus does not exist within the Internet community concerning its legitimacy.

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?

Absolutely not. I have railed against this since the start of the UDRP process. Thuis assignment process basically means that each provider must court the favor of Comaplainants in order to secure any business. They have no incentive to treat Complainants and Respondents with equal respect.

Such an obvious defect in the UDRP should have been spotted innediately and ICANN has no excuse for permitting such an abomination to come into operation. The reason that the UDRP was adopted in its present form is because trademark owners insisted upon the establishment of a tradmark-favorable biased kangaroo court, rather than an impartial dispue-resolution forum.

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?

What you seem to be saying is that ICANN, despite the claim it lacks resources to accomplish much, seems to be embarking on some rather ambitious projects. This seems to be correct. ICANN's level of ambition to embark on new projects appears to correspond directly to the level of interest of the constituencies that have captured ICANN (trademark owners and domain name registrars) to skew the rules in their own favor.

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. Nor is it appropriate for any other law firm that is hugely influential within ICANN and/or WIPO to have such a degree of influence.

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?

No. In fact, the process seems to be set up right now in such a way as to maximize the likelihood of abuse.

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?

ICANN will probably count the votes correctly. The real problem is that the elections have been set up since the beginning to prevent the Membership At Large from accomplishing anything of substance, even after the elections.

Basically, the election is a farce to create the illusion of democracy without any of the inconvenient side-effects (for the people who run ICANN) of actually operating the process in a truly democratic way.



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

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