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> roving_reporter t byfield

Mon Sep 18 20:41:10 EDT 2000

ICANN MAL candidate questionnaire: Emerson Tiller

[Emerson Tiller qualified as an MAL candidate.]

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

Because "technical" decisions have "policy" effects in cyberspace, it would be better for ICANN to call itself a "policy-making" body.

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

A mixed bag. Some critical decisions have been made outside the public's view.

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?

ICANN is more afraid of uncertainty in property rights allocation than it is in technical instabilities.

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?

If ICANN acts quickly to open up more TLDs, then the early experience with the UDRP dispute resolution can be considered a worthwhile experiment and be improved upon. But if TLDs continue to be restricted to just a few, the UDRP decisions will appear more and more arbitrary.

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?

Yes. ICANN needs to open up the decision making process to more countries by expanding board representation.

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?

No, absolutely not. It allows for forum shopping. Most trademark holders will choose the World Intellectual Property Organization (WIPO) as it has shown itself to be more favorable to tradmark interests.

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?

ICANN's claims regarding budget limitations are generally self-generated. ICANN has a number of tools at its disposal to raise funding for its operations.

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?

Sometimes, continuity of legal representation is good. It can cut down on the transaction costs of legal services. However, given the suspicions and the lack of transparency, using a variety of law firms may be better.

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. One system of checks is the At-Large membership. However, few people know about it and it may very well be captured by the same interests (technologists and intellectual property holders) that control the supporting organizations within ICANN.

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?

Yes. There is little reason to think that ICANN will mis-report the election results given the political penalty it would pay if election fraud by it were to be shown.



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

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