Secret Meeting Shows ICANN - IBM Dependence

Two IBM VPs in Presence of Four Internet Dignitaries Set Stage for NSI's September Capitulation to ICANN

Editor’s Preface

ICANN is now "fully formed." With Network Solutions signed on as an accredited ICANN registrar and obligated to pay it nearly three million dollars in domain name taxes per year, ICANN need no longer fear bankruptcy. ICANN may now proceed forward with an Internet wide system of domain name registration under its control. It has won act one. Whether it will be able to "win" act two and enforce and expand its powers to become for its masters a global Internet regulatory agency remains to be seen.

ICANN has gotten to its current position by a complex process of lobbying in Washington and Europe. It is one that we have spent the past three years and upwards of 300 pages of the COOK Report in documenting. In this article we review the entire chain of events in order to paint as accurate a picture as possible of how a tiny clique has managed to put in place a structure that is now positioned to become a global regulatory body for the Internet.

This article also covers a July 30 secret meeting run by IBM at a Washington DC hotel. At this meeting two IBM Vice Presidents met with NSI’s CEO and a Science Applications International Corp (SAIC) Vice President in the presence of senior Internet statesmen Dave Farber, Bob Kahn, Brian Reid and Scott Bradner. ICANN and NSI had spent the previous two months on a collision course over whether NSI would have to capitulate to the demands contained in ICANN’s registrar accreditation agreements. These demands threatened the viability of nearly all of NSI’s income stream. NSI had both reason and resources to sue ICANN with both sides having clashed acrimoniously in front of Congress less than 10 days before. It is no exaggeration to say that the fate of both ICANN and NSI was at stake.

As everyone knows, the suit did not happen and less than two months later the collision course had become a marriage as NSI signed an agreement accepting ICANN’s control and assuring ICANN of the money it needed to survive. It is believed that the July 30 meeting began the events that led to the late September marriage. We note that at the most critical moment in the struggle for control of the DNS system and the future of the Internet the opponents were not ICANN and NSI. It was IBM against NSI with John Patrick VP of IBM’s Internet division and Chair of the IBM-MCI led Global Internet Project backed up by Chris Caine, IBM VP of Government Programs and head of IBM’s 40 person Washington lobbying office.

It certainly looks to us like the crux of what lies behind the "window dressing" is the raw power of IBM. On December 9 we received an email containing the following text:

"Gordon: The July 30 meeting was called by John Patrick, who also ran that meeting. It was attended by John Patrick, Chris Caine, Jim Rutt, Mike Daniels, Brian Reid, Bob Kahn, Dave Farber, Scott Bradner, and an ICANN representative. Cerf was not there. It was held at the Hay-Adams Hotel. My impression of the meeting was that its entire purpose was to bully NSI into signing ICANN’s agreement. It was entirely Patrick’s meeting. Kahn, Reid, Farber, and Bradner were there as observers. The only negotiations that took place were between John Patrick and Jim Rutt. As far as I can tell the others were invited to this meeting for the same reason that Jimmy Carter is invited to South American elections." [End of 12/9/99 email.]

We contacted some of the people named in this message. When we reached Reid, he confirmed that he was at the meeting. When we read him the paragraph above, he asserted that he did remember seeing all of the aforementioned people at the meeting. He said that "one of the IBM representatives had asked that the meeting and its contents be kept secret," but that he "was fairly jet-lagged" and "didn’t remember the details of the secrecy request." He added that "there ended up being no secrecy agreement, at least nothing written." Reid described his memory of the meeting as being "a dialog between John Patrick and Jim Rutt, but [he] couldn’t specifically remember any of the things they had said to each other." Jim Rutt also confirmed his attendence at the meeting. He said: "It was from my perspective a benign and positive sharing of points of view by some experienced people around the DNS management issue. I found it quite useful and constructive."

Let’s identify the persons listed. Mike Daniels is Chairman of the Board of Network Solutions and SAIC Sector Vice President. John Patrick is familiar to readers of the COOK Report as the spearhead of IBM’s GIP and ICANN building operation. Chris Caine is Vice President, Governmental Programs for IBM, Caine is based at IBM’s K Street Washington DC Office. This is Caine’s first appearance in the ICANN NSI saga. We find that appearance to be quite interesting since Caine’s office with its 40 employees is responsible for IBM’s lobbying and government relations programs. His appearance at this meeting appears to us to elevate the importance to IBM of ICANN’s success. Jim Rutt is NSI’s new president. Brian Reid, formerly the Director of Digital Equipment’s Palo Alto networkng Laboratory, is a researcher in networking; as far as we can ascertain Reid has been a neutral observer of the governance wars. We describe Dave Farber throughout this article. Bob Kahn, as co-author of the TCP/IP protocol with Vint Cerf, has ties to DARPA, the telcos and the telecom industry in general. Scott Bradner is an IETF Area Director and Officer of the Internet Society (ISOC).

We are intrigued by the statement from our informant that "The only negotiations that took place were between John Patrick and Jim Rutt. As far as I can tell the others were invited to this meeting for the same reason that Jimmy Carter is invited to South American elections." Inviting men of the stature of Kahn, Farber, Reid, and Bradner as "observers," may be seen as an act of arrogance. But it may also have been an act designed to intimidate Rutt and Daniels who were relatively new to negotiations among top level Internet power brokers." The very presence of these senior statesmen would serve to further elevate the seriousness of the discussions.

The July 30, 1999 meeting apparently belonged to the two IBM Vice-Presidents. The pattern is quite familiar to veteran IBM watchers who observe that when IBM doesn’t know how to cope, it reverts to its classic pattern of control. Control of the meeting, of NSI, of ICANN, and of the Internet, we would add. But the fallout of IBM’s behavior goes well beyond this meeting and stops at the highest levels of the Clinton-Gore administration. The relationships extend back to Al Gore and Mike Nelson who wrote the High Performance Computing legislation that Gore backed in Gore’s Senate days. We became an observer of Nelson’s moves with regard to IBM and Gore nearly a decade ago and remind readers of the path that Nelson has traveled from the Senate Commerce Committee to the White House Office of Science and Technology Policy, to the FCC and finally to employment by IBM in its governmental relations programs.

The relationships also extend to the National Economic Council’s Tom Kalil who met with Joe Sims and Esther Dyson on June 15, 1999 and promised to assist ICANN’s fund-raising efforts. We note that Ira Magaziner explained to us in September 1998 that it was Kalil who (as part of the White House’s preparation for the 1996 elections) asked him in 1995 to begin his research on electronic commerce and the Internet. When in March 1997 we were informed that Kalil was involved in Becky Burr’s refusal to allow ARIN to be formed, we emailed Kalil and stated that we believed that he had an interest in seeing Al Gore elected President in 2000. We stated that his and Burr’s policy on ARIN was in danger of breaking the Internet, told him why, and warned that if it didn’t change and the ARIN issue exploded, we’d dog his footsteps with public reminders of what he had allowed to happen. He responded to this email and discussions began that turned the misguided policy around a few weeks later.

The relationships are tied to the administration’s habit of promoting a public policy that hands off regulator enforcement to industry for its own ‘self-regulation’ with the threat that if industry doesn’t self-regulate, the government will step in and do it for them. Magaziner was a long time proponent of this premise. Beckwith Burr from the consummately political law firm of Wilmer Cutler was espousing it at the Federal Trade Commission in 1995, two years before she was transferred from FTC to OMB and then to NTIA to wrest control of DNS and NSI from the National Science Foundation. It is now very clear that ICANN is not the legacy of Jon Postel. ICANN is the illegitimate off spring of IBM, and the Clinton Gore Administration - with the assistance of the Internet Society (ISOC) and Vint Cerf.

The power on the side of those behind ICANN is overwhelming. It would be far easier and safer to fold the tent, admit defeat and disappear into the night. Yet doing so would be wrong. Is one to do what is "safe" or what is "right?" It is easy to be cynical. And likely justified too. Yet it is hard to abandon the hopes and dreams of new, individually empowering and more democratic many-to-many communications. We write with the hope that while our work may be unsettling to some readers, it will cause far more readers to stop, to think and perhaps to re-assess their position.

The Introduction to this article outlines why we hope that those who have a stake in a free and open internet had better grab the attention of the press and policy makers before an IBM, Clinton - Gore administration created and backed ICANN plants itself too firmly in place.

With the publication of this article, we are continuing an on-going role of documenting the construction of ICANN, a horrendously complex regulatory edifice for the Internet. Since we do not accept advertising we are fiercely independent. We can use the eight years of work we have put into the COOK Report and the publishing medium of the Internet to compile an archive of everything that we can discover about the details of ICANN’s development and the implementation of its policy. This long article does not pretend to be a piece of so-called "objective journalism." It is a continuing effort on our part to dig out from all the resources at our command the story of the people, companies and economic and political forces behind the ongoing global struggle to control the Internet. We have the knowledge, the contacts and the vehicle to compile an ongoing unofficial historical archive of the deeds of the people who are creating ICANN.

And we judge the impact of these activities in light of our own observation and tracking over the past 10 years of those who would now ‘control’ the open, free, revolutionary, democratic, and potentially cost-beneficial to all the world’s peoples, Internet, in their own narrow interest, rather than the broadest ‘public’ interest. These ‘interests’ are, variously, political, governmental - including international -, business, and technological. Motivations range from the egotistical to the preservation of wealth and power. And they seem not to care that the Internet is so subtle, complex, ubiquitous, and new, that seemingly small decisions now, in its infancy, can have stupendous effects later. But its complexities are beyond the experience and ready understanding of the general public. It has taken years of intense, independent, daily study, open publication of my findings, and a willingness to be corrected in my facts or opinions, for me to get a big picture view of the motivations of some of those who have contributed to its growth, but who now would like to perpetuate "personal" control of their creation. Since these ‘interests’ know that the Internet has become economically important, their actions reflect the age-old drive of a few to control, for various reasons, the many. Authoritarianism can be exercised today as much technologically, as it was with armed force in the past.

To take the easy way out and refuse to compile this independent record of what is being done would be, we believe, unforgivable. After all, as Harvard Law Professor Larry Lessig pointed out even before the publication of his recent book, Code: and Other Laws of Cyberspace, "We are creating the most significant new jurisdiction we’ve known since the Louisiana purchase, yet we are building it just outside the constitution’s review." While we are trying, for our own edification, our best to inform and understand, we also hope that our writing on and about ICANN can provide raw grist for historians and policy makers to come. When we wrote to Lessig about his new book, he replied "the fact is that the lengthy and well argued pieces which you produce do good. They are an opportunity for more extended thought on the subject, when the rest of the media won’t touch an issue that can’t be summarized in 800 words. But the thing to remember, if you’ll allow me the privilege of offering advice, is that people will never confess that you’ve convinced them of something. They might not even realize it. But your work still has its effect. They may rant about how you are wrong, but watch what they do. The fact is, things in the ICANN world have changed from where they were. It is not yet good, or even close to good, but there is pressure building in the right places." [Email from Lessig 11/24/99 - used with permission.]

Lessig’s words of course are gratifying but, trying to make sense of the current situation, leaves us with a feeling of greater anxiety than usual. After three years of open Internet governance warfare, what we see now is a fragmentation of opinions and alliances. A tiny clique has created, without widespread support, the beginning of a regulatory body called ICANN. But ICANN, as it tries to "extend its control," is likely to find that it has few outside its business-interest-controlled structure willing to accept its authority. By its own admission, ICANN is limited, for the time being at least, to contracts in domain name registration imposed by it first on registrars and then by the registrars on the registrants.

ICANN may soon find that it has no legitimacy outside its narrow base of supporters. Already the International Telecommunications Union is in the midst of its own proceedings to ascertain how its member nations wish it to proceed with regulation of the Internet. And then on December 1, 1999 the Asia-Pacific Development Information Programme (an initiative by the United Nations Development Programme) declared that "with telephony moving towards the Internet in the near future and Domain Names becoming important strategic marketing assets, the management of these two crucial global resources assumes unprecedented importance. Current reform efforts focusing on ICANN are mainly taking place beyond the established structures of the international system. Can a private U.S. based organization do the job or is greater engagement of the International community desirable? APDIP would like to initiate a broader discussion and suggests to put these issues on the agenda of the upcoming GKII conference." UNESCO has even scheduled a meeting in Paris for its hangers on to decide what they wish to do with the Internet. The one singular accomplishment of the ICANN power struggle has been to clarify for many other groups the enormous power at stake.

Unfortunately, the potential power of the Internet and its technology is growing rather than waning. The real danger is that the potential value and long range impact of the Internet and its associate technology is growing while the public has not yet perceived that reality and is being left behind without the ability to influence events. For example the November 1999 Gilder Technology Report focuses on new signs that the network may be on the verge of becoming the computer.

Gilder describes the advances in disk storage technology that during the past five years have pushed the cost of disk storage down far faster than Moore’s law has bolstered computing power. Gilder describes various applications that are making terabytes of storage directly network accessible without the intercession of computers attached between the network and the data. He points out that, with network bandwidth speeds far exceeding the speeds available in our network attached computers, it is becoming more and more cost effective to store even often used data on somewhere on the Internet and pull it into our edge-attached computers when we need it. Gilder concludes: "The key complement of the new paradigm of bandwidth abundance is cornucopian storage. Together they will consummate the Internet as an ultimate global database over the next five years." If Gilder is correct, not only does control of the Internet involve control of the on going restructuring of global telecommunications, but also control over the most important means of global commerce. Additionally control over the Internet may appear to hold out the promise of control over access to the most economically critical kinds of public and personal information.

We suggest that public policy and the public interest would be far better served by efforts designed to thwart the ability of any group to control the Internet. We contend that those who have assumed that ICANN can be used for purposes of trademark "protection" and e-commerce "regularization" across national boundaries, should stop and take a second look. They risk leading the Internet into its own version of World Trade Organization backroom deals that foundered in Seattle early this month. ICANN is continuing to play a high-risk win-lose, zero-sum game of jockeying for control of the Internet. Its result so far has been divisiveness, fragmentation and a push by other groups to get their share. While the ICANNites have put their backers behind the formation of a well-funded Internet Policy Institute, Peter Neumann of SRI and Risks mail list fame has just announced the formation of a grass roots based People for Internet Responsibility. The agenda of control is splitting those who share common aims and should be working together. If these various agendas of tight-fisted, absolute control can not be deflected they will cause a dismal end to the vision of a distributed inter-networked infrastructure which is open to free and easy use by small grass roots groups and individuals, as well as the large and powerful.

Two major figures, Vint Cerf and Dave Farber have, we believe been playing a critical behind the scenes roles in constructing ICANN and furthering its agenda of control. It is quite possible that each of these men genuinely believes that what he has done and continues to do is really for the good of the Internet. Unfortunately neither has been willing to engage in open debate as to what that good is. With repeated and unsubstantiated refrains of "the Internet is in danger and e-commerce may fail if ICANN fails," they sow fear, uncertainty and doubt, and ask for the same kind unquestioning support that finally brought demonstrators to Seattle to topple the continued non-transparent agenda of the WTO. Since we began publication nearly eight years ago we have never hesitated to drag into the light of day everything that we can ascertain about the private and secretive activities of the Internet power brokers. We shall continue to subject them to public inquiry and scrutiny.

We believe Cerf’s actions have been misguided because they are laying a foundation from which the most beneficial elements of the Internet: namely its decentralized, bottom up nature – ‘consensus driven’ rather than ‘authoritarian’ - may be destroyed. We believe these results will flow from his actions in choosing to create secretive, unaccountable, clique-driven, top down governance. Based on an open architecture which no one owned, the Internet could only have been invented in the US which, as a culture and society, grew up driven by the idea of the open frontier and lack of arbitrary social constraints on human development. The expansion of the Internet from the United States to the rest of the world has helped many to embrace the ideas of freedom, openness and opportunity. The Internet, at least in its initial expansion, was a reflection of the society and its political values. This is what makes it so dangerous politically around the world. But the Internet did have in its DNS a single point of failure in its technology. Some thought that by controlling DNS they could control the Internet. Such control is what ICANN is all about.

The real danger is that there is nothing that prepares technical people to take technology into the realm of politics and into the social consequences of technology. In their disregard for users, they effectively treat them as a resource to be manipulated, much like the code that they write. There is nothing in our society that links the power of our technology to our political values. In the new century, Internet technology promises to become a powerful force in virtually every area of human endeavor. It can either facilitate or inhibit the freedom of the average citizen. The problem we face is that Mike Roberts, ICANN CEO, is no jovial Benjamin Franklin and Esther Dyson, Chair of the ICANN Board is clearly no Thomas Jefferson"

While Cerf has refused to debate his ICANN’s critics, he has always been open with his support of ICANN. On the other hand, Farber, closely involved in ICANN’s creation, has made a studied effort to appear as an unbiased and generally neutral observer, since he began early this year to criticize ICANN for having closed Board meetings. We believe that he is using the trust associated with his name to persuade people to support ICANN. Why? Because, as he explains it, the consequence of life with ICANN will be better for the Internet than life without it. If ICANN goes down, Farber says, the Internet will get "adult supervision." He warns that we won’t like it one little bit.

While with his sponsorship of ICANN Watch, [www.icannwatch.org], Farber has presented himself as unbiased, neutral, and by inference at least, concerned. However, we believe that the preponderance of currently available evidence indicates that he is instead shepherding ICANN through the shoals. He could make a very dramatic statement of his frequently professed doubts about ICANN by withdrawing support from it. Instead we have ascertained that he is not just a public ICANN "watcher" but rather a behind the scenes player who participated in the secret July 30, 1999 meeting designed to get NSI to cooperate with ICANN. Asked to give further information about the meeting including who was there, he steadfastly has refused to do so - as, of course, is his privilege. However given his refusal to do so, we suggest that he should step down from his position with ICANN Watch where, since he has never - as far as we can tell - contributed any writings, his position has always seemed out of sync with that of Michael Froomkin and David Post. Unlike Farber these men have always been quite public about their views, have provided the site with much thoughtful material, and have been up front about their participation in ICANN related functions.

Both Vint Cerf and Dave Farber are such highly respected national and international ‘names’ in the computer industry based on their past contributions to the origins of the Internet, that their counsel is widely sought from the White House to the largest Businesses. Consequently, it is important to put them, their motives, their influence and their actions, under close scrutiny, in this very important period where the global future of the Internet is being decided, and which ultimately will affect the lives, opportunities, and political freedoms of the six billion people on this planet.

To end this introduction on a positive note, we would suggest that those who really have the public interest at heart might try to begin working together. They need to show why ICANN and other Internet control schemes are likely to create chaos and to fail rather than to make the Internet safe for e-commerce. The Internet is functioning very well without ICANN. The Internet has also functioned quite well in the past without ICANN. While we have a court system that has adequate powers to police domain names, ICANN has unfortunately helped to engender a divisive mentality where we have the "cudgel" of the recently enacted Cybersquatting legislation. The cudgel’s absurd overkill has made otherwise reasonable people like Milton Mueller willing to participate in ICANN’s rigged processes as the lesser of the two evils. What we find perplexing in the face of the Cybersquatting law is that the talk we hear now is talk of cooperation with ICANN and not of the mounting of a legal challenge to overturn the law as was done with the Communications Decency Act a few years ago.

A year after its formation ICANN has won the first round. It has won it in part by gathering a small group of players well motivated by access to the power inherent in ICANN’s aims. The fact that its players have access to major resources certainly aids their effort. As does the myth that cyberspace is inherently free and unregulatable.

Larry Lessig in his new book Code: and Other Laws of Cyberspace (Basic Books, 1999) finds that he who controls the code on which cyberspace is founded will control whether freedom can exist in cyberspace. Lessig pounds home this conclusion again and again. We find it fascinating that Lessig ignores ICANN. For we note the reason for ICANN’s being in such a hurry. It knows what Lessig knows about ownership and control. It must craft its architectural code on behalf of e-commerce and government before the rest of us awaken.

Lessig writes "cyberspace [is changing] as it moves from a world of relative freedom to a world of relatively perfect control’ ..... The first intuition of our founders was right. Structure builds substance. Guarantee the structural (a space in cyberspace for open code) and (much of) the substance will take care of itself." . . . "We are just beginning to see why the architecture of the space matters – in particular why the ownership of that architecture matters."

"I end by asking whether we, meaning Americans, are up to the challenges that these choices present. Given our present tradition in constitutional law and our present faith in representative government, are we able to respond collectively to the changes that I have described?" . . . "My strong sense is that we are not. We are at a stage in history when we urgently need to make fundamental choices about values. But we trust no institution of government to make such choices. Courts cannot do it because, as a legal culture we don’t want courts choosing among contested matters of values and congress should not do it because, as a political culture we so deeply question the products of ordinary government." . . . "Change is possible. I don’t doubt that revolutions lie in our future. The open source code movement is just such a revolution. But I fear. . . that too much is at stake to allow the revolutionaries to succeed."

"The argument of this book is that the invisible hand of cyberspace is building an architecture that perfects control – an architecture that makes possible highly efficient regulation. . . . a distributed architecture of regulatory control, an axis between commerce and the state..... much of the liberty present in cyberspace’s founding will vanish in its future."

Lessig’s conclusions decode what ICANN is doing. It is quite clear to The COOK Report that, on behalf of commerce, ICANN will own that architecture. ICANN will control the code. It will allow neither diversity nor open source code. ICANN owns all domains and all DNS. It has one uniform dispute resolution policy. It hammers out its uniform rule in pursuit of the facilitation of electronic commerce. It embodies what Lessig fears.

Lessig writes: "In many [cases] our Constitution yields no answer to the question of how it should be applied, because at least two answers are possible-that is, in light of the choices that the framers actually made." . . . "For Americans, this ambiguity creates-a problem. If we lived in an era when courts felt entitled to select the answer that in the context made the most sense, there would be no problem. Latent ambiguities would be answered by choices made by judges-the framers could have gone either way, but we choose to go this way." . . . "But we don’t live in such an era, and so we don’t have a way for courts to resolve these ambiguities. As a result, we must rely on other institutions. My claim, a dark one, is that we have no such institutions. If our ways don’t change, our constitution in cyberspace will be a thinner and thinner regime."

"Cyberspace will present us with ambiguities over and over again. It will press this question of how best to go on. We have tools from real space that will help resolve the interpretive questions by pointing us in one direction or another, at least some of the time. But in the end the tools will guide us even less than they do in real space and time. When the gap between their guidance and what we do becomes obvious, we will be forced to do something we are not very good at doing – deciding what we want and what is right," Lessig concludes. We find that Lessig has put his finger squarely on the reasons that ICANN has won its first round and may win successive rounds.

Some sectors of corporate America and the Clinton Administration perceive the prize that ICANN is seeking as the opportunity for world wide regulation of the new TCP/IP based telecommunications technology and of electronic commerce. The strategy of the ISOC based clique that spawned ICANN and decided to do whatever was necessary to "win" seems to have paid off. ICANN has divided and conquered one-by-one those who should have opposed it. The desire to be on the winning side and have some hope of affecting the outcome led far too many people to swallow their misgivings and cooperate in what we believe has been the forlorn hope that the nature of the "beast" could be changed from within. Considering the magnitude of what was up for grabs, it was perhaps quixotic to think that the outcome would be determined by anything other than a series of naked power grabs. This article will review, at a high level, how ICANN came to be. It will summarize some recent developments and it will go on to a look at the role of Vint Cerf and Dave Farber who continue to refuse to explain their veiled warnings that the Internet is in danger if ICANN fails. We find their refusal arrogant and unacceptable. It will conclude with an assessment of what looks like Act Two - enforcement by ICANN of its decisions. Ones that for the time being appear enforceable only by contracts between ICANN and those parties that have agreed to come under its sway.

In mid 1997 Vint Cerf of MCI and John Patrick of IBM became involved with the GIP (Global Internet Project). (We understand that the GIP had been originally formed by Jim Clark of Netscape in response to government policies on encryption.) With Patrick heading the GIP on behalf of IBM its policies changed. According to an October 1997 Reuters story, the GIP "informally welcomed a European Union proposal to draw up a charter to govern the global computer network." Cerf and Patrick had been joined in the late spring of 1997 by Marilyn Cade from the government Affairs Office of AT&T.

In January 1997, they acquired the services of Beckwith Burr, a lawyer sent two years earlier from Wilmer Cutler & Pickering to the Federal Trade Commission. Burr was brought to OMB under Sally Katzen From there she was sent to the politically secure NTIA within the Commerce Department and appointed by Ira Magaziner to head a Federal Inter-agency working group on DNS. Burr’s NTIA mission was to give full executive agency support to the creation of an extra governmental organization safely outside the reach of the US Congress and purview of the US Courts. This organization would become known as ICANN. The tiny clique behind ICANN would use it as a catalyst to begin to implement a common worldwide regulatory regime for the Internet while proclaiming overtly that its’ major mission was to reign in ‘monopolistic’ practices of much hated Network Solutions.

Dressed in the false clothing of an industry-led coordinating group designed to keep the internet free of governmental interference, ICANN was in effect a WTO for the Internet, an organization accountable only to the industry bureaucrats who staffed it and paid for it. Burr spent so much time closeted with IBM and AT&T in the spring and summer of 1997 that an employee of one of these two companies complained about it to another insider who then informed The COOK Report. As she conducted an ostensibly independent review of US policy, reliable sources have asserted to us that Burr was giving an inside track to IBM, AT&T and Oracle– all members of the GIP. In December 1997 we issued a FOIA that sought identification of Burr’s contacts with these companies. Her office relied that it had no responsive documents. It would be very interesting to know who moved Burr from the FCC in January 1997 to OMB and then to NTIA. From what we know of Mike Nelson’s long time fealty to Al Gore and IBM, we speculate that he may have arranged Becky’s service as the GIP’s mole in the Clinton Administration. Certainly we have complained of IBM and ATT’s insider access to this process for more than two years. When we began there was little visible evidence for our assertions. However by the end of the extent of IBM involvement became evident with the ICANN fund raising emails in June 1999 and Mike Nelson’s move to Chris Caine’s office in 1998.

When Brian Kahin was brought from Harvard to the OSTP (Office of Science and Technology Policy), Nelson was moved to the FCC - to rest, as an insider told us, in cold storage for a top level position in a future Gore administration. The trade press proclaimed that Burr and NTIA were promising a DNS solution by November 1, 1997. In mid October they and Elliot Maxwell explained what they wanted to do to Ira Magaziner. Ira, thinking that he could broaden the base of its otherwise inadequate support, rejected it in favor of a year of further custom made marketing that resulted in the green and then the white papers.

The three ringleaders of the ICANN Coup were Vint Cerf, John Patrick, and recently retired Educom VP Mike Roberts. Playing supporting roles were various ISOC functionaries like Larry Landweber, Dave Farber, and Don Heath. In the summer of 1998, at the suggestion of Magaziner and IBM’s lobbyist, Roger Cochetti, this group added Esther Dyson who some cynics maintain had built her career both on her ability to hobnob with the rich and powerful and to deliver, to the press and the public at large, a spin about the impact of the new information technologies that kept her corporate backers happy. Anyone feeling that our portrayal is excessive should read a few of the many glowing interviews with Dyson extolling her position as one of the leading gurus on meaning and development of Cyberspace.

With the exception of Dyson and Heath, the key players in giving us ICANN were the same group of insiders who had, in effect, turned the Arpanet into the Internet via the development of CSNet and then NSFNet. CSNet had been first proposed as a Computer Science Department research network in May 1979 by Larry Landweber. A planning group for CSNet met in May 1980. It consisted of representatives from 14 Universities, Educom (Mike Roberts’ IBM funded University based organization for the promotion of information technologies), and the RAND Corporation. A proposal for funding was approved by NSF in January 1981. As John Quarterman writes in the Matrix, the "success of CSNet led to the proposal for NSFnet in 1986." Dennis Jennings while at the NSF was a key figure in the development of the NSFNet program along with Dave Farber who was on loan to NSF on an IPA grant from the University of Delaware.

As Farber says in December 1999 on his web pages: "I helped conceive and organize CSNet, NSFNet and the NREN." We note that NREN (the National Research and Education Network) was adopted by Al Gore under the rubric of the High Performance computing legislation written by Gore staffer and now IBM employee Mike Nelson. High Performance Computing was passed in 1992 and the commercial Internet replaced NSFNet before NREN ever could see the light of day. Through contacts with his friend Einar Stefferud, Farber has also claimed credit for the recruitment of Steve Wolff who directed NSFNet from 1987 through January 1995. Jennings has recently resurfaced to assist ICANN with the formation of the Domain Name Supporting Organization.

The most important step in the evolution of NSFNet into the ultimate foundation of the commercial Internet was the award to Merit, beginning in November 1987, of a cooperative agreement to re-engineer the NSFNet backbone to T-1 speeds which were achieved for the first time in September 1988. Farber was a significant player in this effort. Doug van Houweling and James Duderstadt had migrated from Carniege Mellon’s IBM-oriented Andrew program to the University of Michigan in the mid 1980s. In short order Michigan replaced the campus Amdahl mainframe with an IBM. (For nearly the first year of ICANN’s existence, van Houweling’s daughter-in-law Molly served as the principal full time ICANN staff member under Roberts.) In his capacity as University of Michigan Vice Provost for Information Technology and Chair of the Board of Directors of Merit, Van Houwelling brought in IBM and MCI as "joint study partners" to implement the technology on which the backbone upgrade was based. While Vint Cerf had worked for MCI, by this time he was at the Corporation for National Research Initiatives with Bob Kahn where he would stay until his return to MCI in February 1994. MCI’s chief technologist, Richard Liebhaber headed up MCI’s participation. In 1991 Roberts, Cerf and Landweber would found the Internet Society. On March 17, 1995 when Bob Aiken of the Energy Sciences Network, asked on the IETF list "IS ISOC claiming that it has jurisdiction and overall responsibility for the top level address and name space - as some (see below) believe it does? If yes - how did ISOC obtain this "responsibility", - if NO then who does own it?

Vint wrote a long response offering his opinion which ended with a hand off to ISOC. Vint sent his response only to Aiken, Tony Rutkowski and Jon Postel. [Editor: see http://dns.vrx.net/news/by_date/old/1995/Mar/] "Rather than looking for historical precedent as a means of making a ‘determination’ as to jurisdiction, it seems to me as if it is possible to make some deliberate agreements now among the interested parties (among which I would include the NICs, the IANA, the various US Gov’t research agencies and ISOC) as to how to proceed in the future. My bias is to try to treat all of this as a global matter and to settle the responsibility on the Internet Society as an non-governmental agent serving the community. A delegation of authority to the US DoD NIC (.mil) and a US government, research and education NIC (USgreNIC?) might ensue: for .edu, .gov. A self-supporting arrangement for .com, .org, .int and .us might be made, administered by yet another agent with US jurisdiction." "Yet another agent" seems to have been a coy way of putting it. On October 1, 1995 Landweber authored the Internet Society’s secret plan for the take over of DNS. ISOC would become the other agent. This plan was published for the first time earlier this year in the COOK Report.

While the efforts of these men, who are largely academics, did ignite the commercial Internet industry, something for which they could normally expect the praise of future historians, they simply have not been able to figure out when to quit. "Their" assumption that they could go on to design the regulatory system for their Internet which is now on the verge of becoming the engine of the global economy for the next century is an act of breath-taking hubris. The fact that the Clinton-Gore Administration has allowed them to do this without meaningful oversight is a major reason why Gore should not be nominated for the presidency. While ICANN will hopefully crash and burn when, in Act 2, it tries to assert authority, it may just survive. Such survival will make for a tragic turn of events in the Internet’s history.

Before his untimely death in October 1998 Jon Postel was the figure head which this group had to accommodate. On December 10, 1997 Postel had been ordered by Ira Magaziner not to add new top level domains to the root servers. On January 24, 1998 in London, George Strawn (Director DNCRI at NSF) and your Editor observed as Ira Magaziner explained to Scott Bradner that John Gilmore had been encouraging Postel to defy the US government by adding the CORE names to the root. Ira asserted that he had assured Postel that disobedience would result in criminal charges being filed against him. But Postel at that very time was just beginning his experiment in redirecting the root servers. It was later said that the FBI very quickly showed up on Postel’s doorstep.

In June of this year Dave Farber told us on record that in February 98, when the IANA transition advisory group (ITAG) was formed, its first priority was to find Postel an attorney to keep him out of jail. The attorney found, Joe Sims, was an 18 year veteran of Jones Day and a member of its new "tiger team" on information technologies. Sims had gotten his start in the anti-trust division of the US Department of Justice. The recruitment of an attorney began in February 1998. By June Sims was on the job. Hindsight shows that almost immediately he began to formulate the bylaws of the ‘newco’ he envisioned as inheriting the ‘IANA function. These went through five successive drafts between July and October 1998. Each successive draft (except for the fourth) was greeted by those not loyal to ISOC as worse than its predecessors. The fourth (done in negotiations with NSI) was repudiated by the ISOC forces and replaced with the fifth at the beginning of October. When they were criticized as creating an unaccountable entity, Sims responded that he was only doing what Postel wanted. A safe answer, for criticism of Jon was unthinkable. Postel, for his part, told his close friends who did complain that his lawyers told him that they had no choice but to design ICANN as they did. Postel handed the drafts down from on high like the tablets from Mount Sinai.

More than a year after the fact, there is an amazing dearth of information on the creation of ICANN. However, it is now very clear that Vint Cerf, John Patrick and Mike Roberts played key roles. Larry Landweber, Dave Farber, Don Heath and Scott Bradner were also involved. To the extent that goals and strategies for ICANN were ever discussed in writing, it is also very likely that this took place on the ITAG (IANA Transition Advisory Group) mail list. Farber, Postel’s dissertation supervisor was a member. Cerf was a member, as was John Klensin who worked for Cerf at MCI. Randy Bush, a long time close personal friend of Postel and someone who would later be brought into DNSO organizing by ISOC was a member, as was Cisco’s Steve Wolff and Telstra’s Geoff Huston. To the extent that ICANN strategy was ever discussed outside the GIP it was surely discussed here. Unfortunately archives of the ITAG list have never been made public.

Whenever ICANN is accused of over reaching, Esther Dyson likes to point out that ICANN is nothing more than a coordinator for obscure aspects of Internet plumbing. Dyson’s denial not withstanding, control of Internet content is likely to flow from ICANN’s claims to control addressing on behalf of corporate trademark interests. Already on December 3, 1999, ICANN has announced that its Uniform Dispute Resolution Policy (UDRP) has been invoked. And in a separate incident (etoy.com - an artist web site) was taken off the web by www.etoys.com (a toy e-commerce business).

On November 27 Reuters reported that the Belgian software scientist Robert Cailliau (co-inventor of the WEB) "proposes licensing all Internet users to make them aware of their "duties as well as their rights,’’ comparing it to a driver needing a license before hitting the road. "The Net is another world, potentially a dangerous place. You can harm people and you can get harmed, just like on the road,’’ he said. "If you go through an education process before getting an account then you’re better prepared to go out there.’’ He added: "We all accept that a car has number plates and a driver is registered somewhere...Why can’t we apply these same principles to the Internet?’’ Asked how offensive sites and "spam-mail’’ invading cyberspace should be dealt with, he replied: "The Internet and the Web are completely outside geographical state boundaries. This is not dissimilar to air. If you make pollution in one place it travels across the frontiers. "For very similar reasons I think we need some regulation of Net behavior which is internationally agreed, globally agreed.’’

Remarks like this are setting the climate for ICANN expansion. ICANN’s activities have brought about a situation in which liability for anything and everything (because the Uniform Dispute Resolution Policy -UDRP- language is so loose) falls upon users, effectively criminalizing them in advance, in much the same way that the act of driving a car transforms the laws of search and seizure the police can bring to bear. Could there ever be a next step? We certainly hope not. However, the ICANN that has been built, accountable only to itself and to the wishes of its GAC (Government Advisory Committee) masters is precisely the kind of global agency to license first web sites, then users and, finally, content. In the climate of only a year ago Cailliau’s remarks would have been unthinkable. We view them as absurd, but nevertheless see a climate for change being laid.

Considering how attractive it will be to reach out to attempt to install ICANN as a single point of authority over the Internet, how little is known about its origin is quite extraordinary. ISOC, as shown in Landweber’s October 1, 1995 master plan was the crucible. Milton Mueller, in his unpublished paper (8/99) "Technology and Institutional Innovation: Internet Domain Names," has documented in great detail how Don Heath, on behalf of the ISOC Board, has led ISOC to create in ICANN, a World Trade Organization like entity having no accountability to anyone save its IBM, AT&T, MCI and other GIP masters. Heath and Cerf constructed ICANN though a series of alliances with the World Intellectual Property Organization WIPO, and International Trademark Association (INTA). Their actions were a betrayal of the interests of that very group of small entrepreneurs for whom the early growth of internet technology made it possible to found independent, self- sustaining businesses (Cybrarians, Web designers, E-zine publishers, and businesses like the COOK Report to name but a few).

Using its ISOC based alliances, [Editor: as outlined in the introduction to part two of the Novemer 1999 COOK Report] the new governing body of the Internet, seems to have sprung, full-grown from the mind of Vint Cerf and his IBM colleagues. That IBM and MCI had the moxie to take this plan on by themselves seems less incredible when one stops to remember the seven year long partnership between IBM and MCI that ran the NSFnet backbone. Of course the GIPsters needed the cooperation and help of the US government. It came in the person of J. Beckwith Burr, a Wilmer Cutler Pickering attorney who in March of 1997 was making speeches on such things as the impact on the Internet of the WIPO Copyright Treaty on behalf of FTC Commissioner Christine Varney. Earlier in 1996 in her capacity as Attorney-Advisor, to Commissioner Varney, Burr stated that Varney, "has been saying consistently that we have to give self-regulation an opportunity to work." Ms. Burr adds: "There is a point where if industry doesn’t self-regulate, then the FTC may be called upon to act." (This was the same refrain that would be used in 1999 by the supporters of ICANN.) We note that Burr was also involved on Varney’s behalf in an April 1995 FTC workshop on consumer protection and the Global Information Infrastructure.

By the time that Burr was transferred to NTIA, to craft a solution for ATT and IBM’s concerns about trademarks and domain names, she had developed excellent grounding in the Clinton Gore Administration philosophy of industry "self-regulation." In the case of NTIA and ICANN this would come to mean: "figure out what you want to do to run your own show and we will give you the blessing of the federal government to do just that." Burr has acted as the faithful ally of the GIP and ISOC inside the US government. She controls a situation where if it is strategically convenient for ICANN to act, it acts. However when and if ICANN becomes a bit too brazen, or it comes under serious attack from its many legitimate enemies, Burr can reign it in by asserting that the US government has not yet transferred full authority to this Clinton-administration-created Internet oversight board. We suspect that as the result of corporate overtures to Magaziner at the end of 1996 she was transferred from FTC and sent on her political mission to NTIA. As Magaziner told us in a late September 1998 interview: it was roughly in November 96 with copyright next on our agenda that people first brought up the trade mark issue. These early concerns came from people in Patent and Trade Mark Office and the Department of Commerce. What I heard was them raising a concern which was backed up by a number of businesses that, if you ignored trademarks in the issuance of domain names, it could have a negative commercial impact. Therefore we put it on the table as an issue to look at. [Editor: and Becky Burr presumably was sent on her mission to mid wife ICANN from within the government.]

We have documented extensively the pattern of ICANN’s arbitrary and capricious record in creating an organization that is alleged to be democratic and transparent but which in reality works behind closed doors to do the bidding of its corporate sponsors. What we wish to emphasize here is the allegations on the part of Cerf, Roberts and Dyson that if ICANN were to fail, the internet is in danger. For his part Farber in August told his IP list that he wants ICANN to "finish its mission." But what exactly he has considered the mission to be has never been answered. He deflected our mail list question with a complaint that we had no right to ask it. And when we pleaded with him to get specific about a scenario of why the Internet could not afford to have ICANN fail, he had nothing to say. The ICANN ring leaders have long refused to defend their dire assertions.

On November 8, 1998 we wrote an ‘open letter’ to Vint Cerf, Dave Farber, Mike Roberts, Larry Landweber and Scott Bradner.

"Although I am an opinionated SOB, I keep an open mind, and I am continually searching to understand the reasons for actions that seem to me (perhaps because I do not have some broader perspective that you share) to make no sense. Therefore I would like to try to reason with you because what you have done is, in the terms of my understanding of the Internet, quite inexplicable."

"Internet standards are developed by open processes - ones which you have played major roles in developing. It seems to me that you could have applied the same open processes to the development of ICANN but that for reasons known only to you, you have chosen not to. Instead you have retreated to a small closed circle from which, in cooperation with corporate sponsors (the GIP), you have chosen to operate by stealth. In Jones and Day you have chosen one of the largest corporate firms in America to draft ICANN bylaws that will make the corporation as unsuable (and also unaccountable) as possible. Esther Dyson and before her Joe Sims claimed these bylaws have wide support. To the extent that this is true (and you greatly exaggerate its truth) those who endorse them have done so because they assume that they are what Jon Postel wanted. But Jon unfortunately is gone – and with his passing, you ignore the fact that they are repugnant to wide numbers of people who would not like ICANN to fall into the hands of an unaccountable self-perpetuating elite."

"You [the mighty five] have chosen a Board that, by your own admission, does not know the Internet and you have done so by means of a closed and secret process. The board meanwhile has reciprocated the favor of its choosing by you with selecting one of you as its president..... and this person DOES know the internet. It seems rather clear that through Mike Roberts -in the first two years - you will control the board and therefore ICANN. In the 8 years that I have been involved in the Internet I have never seen such a "cozy relationship". Unfortunately, you have not been willing to take public credit for what you have done. It has all just mysteriously "happened". Given this and Dave Farber’s assertion that with Esther Dyson whom he knows very well, as a board member, everything will be OK, it does not take a PhD in poli-sci to see where the power lies. Please help me understand WHY you have felt it necessary to proceed in this fashion?"

"You could have published an Internet draft or an informational RFC to explain and defend what you are doing. Yet you have chosen NOT TO DO SO. Why? The Internet has become what it is today by means of open processes. For the creation of ICANN YOU HAVE USED A CLOSED and secretive process. Why?"

"Perhaps in your heart of hearts, wanting only what is "best" for the Internet, your motives are entirely pure. Fine. The problem is because of your silence, we have no idea what your motives are and why you have decided to have bylaws drawn up that are flawed by lack of accountability (political and fiscal) and to create an organization that legal experts like Lessing and Frankel tell you is best designed to serve a self perpetuating elite. In the face of what you have done, are you actions defensible? If so why have you not defended them?"

"You have allowed a process to be played out quite frankly that is fraudulent. How can it be called anything else but fraudulent when we have gone through a summer long session of open IFWP meetings designed for building consensus when it seems now that in your eyes IFWP was just "show". The process we thought was open was NOT. It was for "show" only. Each iteration of the bylaws got worse not better. Do you wonder that more than a few of us are angry?"

"When no one admits to picking the board and no one on the board will explain the details of how the board was chosen, we have a process reminiscent of the action of a Latin American Junta. Why is this the memorial that you are leaving to Jon Postel? Do you not begin to see that it lacks any moral authority? Or do you believe that it some how represents a means for protecting the Internet from some unknown and unidentified barbarians? If this is your belief, stand up and say so. And say why. Let us know at least what YOUR thinking is. Wasn’t it an Internet tradition that the net should have no KINGS? Didn’t this tradition mean that everyone involved with the operation of the net should be openly accountable?"

"How can you justify what you have done as a part of "open" internet tradition? If you can do so, it is time that you do so. If you choose not to do so, then can you understand why what you are doing is bankrupt and must be challenged by Congress and in the courts? Your demeanor leads one to expect the worst. Is your direction to remain full speed ahead and to hell with the rest of us, or will you salvage the situation you have created by defending what you have done and letting the rest of us form our own opinions?" [End open letter of 11/8/98.]

None of those to whom we addressed this plea responded. But in the trade press in December, Vint Cerf said in an interview . . . it’s time for the IETF to let the Internet grow up. "The fact that a constellation is being built to do what one or two people did is astonishing," said Cerf, senior vice president of MCI WorldCom. "But then again, when the Internet started, it wasn’t of commercial value. Now it is and it has attracted all parties, including the lawyers. That means it’s valuable and that’s good." "Oversight of the Internet has become a legalistic business," Roberts said. "We have to deal with lawyers and bankers and unfortunately we have to do it in a way that makes some of you uncomfortable." Source: Sandra Gittlen Network World, 12/11/98. The word from the ICANN creators was essentially "like it or lump it." Robert’s "explanation" was not an explanation at all but a flat defiance of the right of the users of the net to accountability, transparency or participation.

Bill Marmon works closely with Vint Cerf at MCI. On January 4, 1999 we asked him if he would invite Vint Cerf to explain his views on ICANN in more detail in our pages. (When through Marmon, we offered Vint a chance to debate John Curran on WorldCom’s acquisition of MCI’s Internet Backbone, Vint quickly accepted in the spring of 1998.) This time Vint refused.

Cerf did speak in early May 1999 via an Internet draft (http://www.iepg.org/docset/ids/draft-isoc-internet-for-everyone-00.txt) that was dated April. The draft was a pean to the success of the Internet written in the style of a sermon to the ISOC faithful.

Cerf wrote: "The Internet is for everyone! How easy to say - how hard to achieve! Where are we in achieving this noble objective?"

"The Internet is in its 11th year of annual doubling since 1988. There are over 44 million hosts on the Internet and an estimated 150 million users, worldwide. By 2006, the Internet is likely to exceed the size of the global telephone network, if it has not by that time become the telephone network by virtue of IP telephony. [ . . . .] The Internet is proving to be one of the most powerful amplifiers of speech ever invented. [ . . . .] The Internet is becoming the repository of all we have accomplished as a society. . . . The Internet is moving off the planet! Already, interplanetary Internet is part of the NASA Mars mission program now underway at the Jet Propulsion Laboratory. [ . . . .] The Internet is for everyone - but it won’t be if it isn’t affordable by all that wish to partake of its services, so we must dedicate ourselves to making Internet as affordable as other infrastructure so critical to our well being. [ . . . .] The Internet is for everyone, - but it won’t be if Governments restrict access to it, so we must dedicate ourselves to keeping the network unrestricted, unfettered and unregulated. We must have the freedom to speak and the freedom to hear. [ . . . .] The Internet is for everyone - but it won’t be if it cannot keep up with the explosive demand for its services, so we must dedicate ourselves to continuing its technological evolution and development of the technical standards the lie at the heart of the Internet revolution. [ . . . .]"

For six more paragraphs, as a religious refrain, Vint begins: "The Internet is for everyone - but it won’t be if. .. "

Then he concludes: "I hope Internauts everywhere will join with the Internet Society and like-minded organizations to achieve this easily stated but hard to achieve goal. As we near the milestone of the third millennium, what better theme could we possibly ask for than making the Internet the medium of the new millennium? Internet IS for everyone - but it won’t be unless WE make it so."

We find severe irony in this populist pep talk. For Vint Cerf, at the same time that he was working through the GIP and with ISOC and Don Heath to impose the profoundly unaccountable ICANN on the Internet, was fashioning for himself the mantle of the preserver of an unfettered, unbounded internet accessible to all.

We believe the key statement in the entire RFC is the following: "The Internet is for everyone - but it won’t be if legislation around the world creates a thicket of incompatible laws that hinder the growth of electronic commerce, stymie the protection of intellectual property, and stifle freedom of expression and the development of market economies. Let us dedicate ourselves to the creation of a global legal framework in which laws work across national boundaries to reinforce the upward spiral of value that Internet is capable of creating."

These goals are utopian, centralist, elitist, unaccountable to any groups of living humans, and designed for the express purpose of delivering power to unelected secretive cabals who will rule for our benefit, if we will just trust them. Furthermore, these goals directly oppose the authority of living groups of humans–i.e., democratic political and judicial structures to have any voice in what standards they will set for themselves– it authorizes a supreme "soviet" or central committee of monopoly corporatists and elitist bureaucrats to impose their utopian visions on the ground, on the property and well being of real people who live in real places–with the force of law and to punish and appropriate property without anything that looks like normal due process.

This is clearly the objective of IBM, which is staking its future on becoming the purveyor of choice for electronic commerce solutions globally. A uniform framework of global Internet regulation will certainly also assist Bernie Ebbers who having devoured Cerf’s MCI is now ready to gobble up Sprint in an effort to become one of 3 or 4 globally dominant telecommunications giants. What troubles us is that, as ICANN becomes the first global regulatory body for the Internet but at the same time is controlled by an oligopoly burdened by debt and dependent on bell-headed technology, it is difficult to see competition or anything else keeping prices of internet use down. The Internet will be for everyone only at the sufferance of those controlling the ICANN club.

And we have no reason to believe ICANN wants to treat end users, service providers, smaller commercial interests, and private network owners any better than the telcos have – and that in fact they are trying to duplicate - as Lessig shows in his book- the old telco infrastrucure/access monopoly through control of code and architecture by which to prevent bottom-up competition and low cost services.

[Editor’s Note: Much later, on July 8 1999, on the IFWP list, Vint did respond to our criticism of his demand for a global legal framework. "I was actually making reference to the Papers on electronic commerce that were issued by the White House in June 1997 and updated in October 1998. There is still an enormous amount of work to be done to fashion a framework for electronic commerce which addresses the significance of digital signatures, liabilities for electronic contracts, jurisdiction in various business disputes, etc. ICANN has a tiny role in this very large and very complicated electronic trade framework. The governments of the world will need to work together to put into place practices and procedures that really are conducive to the continued growth of commerce on the Internet. In many instances that will mean refraining from regulation where that would be an impediment, but it seems to me equally likely that there will be some legislation that would enable rather then impede electronic commerce." Editor - all that’s missing is the role of ICANN and the GAC in smoothing the way.]

"Folks, I have talked with John Sidgmore. We will try to get $500K at least "backup" in case nothing else in the way of fundraising works. Mike Nelson, I have copied John Patrick and Irving Wladawsky-Berger [Editor: an IBM e-commerce executive. See section below on Chris Caine and Berger] on this message, as well as John Sidgmore. If IBM and MCI Worldcom can come up with $1M in "bridge" funding, to be paid back at a later time under reasonable terms that will not harm ICANN, then perhaps we can begin a new fundraising campaign knowing that we have the ability to back up the campaign with a rescue effort in the short term. It will be easier for John Sidgmore to make the case to the MCI WorldCom management if IBM is willing to go into this with us and split the $1M cost. Is it possible?"

"I would then launch a campaign with GIP, ITAA, Internet Society, and other interested groups on the basis that ICANN must succeed or Internet will be in jeopardy. This ought to play well with any company whose stock price is dependent on a well-functioning Internet." "Thoughts?"

Tony Rutkowski later commented on BWG a private mailing list for the discussion of ICANN related issues... : "ICANN appears to have been created, manipulated, and propped up substantially by John Patrick and Vint Cerf who have never had any public accountability. "I’m not aware that either has ever publicly explained what they are doing and why, much less participated in any forum - electronic or otherwise - where anyone substantively knowledgeable could interact with them.  Indeed, it has long made a mockery out of all these public discussion and even the government’s own public processes, when the real deals were all being worked out behind the scenes by others to meet their unknown objectives. Has anyone been able to ever engage them on these matters or heard an explanation?"

Tony puts his finger squarely on the problem. ICANN represents a handful of powerful people who have been able to build an organization unaccountable to anyone but themselves. The two key players, Cerf and Patrick, warn that the Internet and e-

Commerce will crash and burn without ICANN yet despite repeated requests to explain, justify and defend their positions in public fora they refuse to do so. One would think that if they had publicly defensible positions, they would have made their case for them long ago.

We can think of only two explanations why they have not. Their real reasons may simply be the power that they derive from an ICANN that they have created and can control is their primary motivation. Or they may be reacting from fear. Namely that if market analysts and the general public ever understood that the internet doesn’t have - and what is more - doesn’t need the centralized control and firm legal foundation under all its operations that successful large scale technology based infrastructures have always had in the past, people, getting nervous, would begin to sell their Internet stock in order to take their profits. The Internet bubble will burst and the VCs will indeed loose chunks of their fortunes.

What Vint Cerf has done is especially a great pity. As co-creator with Bob Kahn of TCP/IP, he has one of the most important technology achievements of the century to his credit. It is especially important because it has made possible the very kind of communications revolution that Vint sings the praises of in his "Internet is for everyone" sermon. However the most important aspect, the enabling of small entrepreneurs to compete, publish and market globally he tellingly does not single out for preservation.

And here is the critical point of divergence between who they say they want to protect, and who they are actually empowering. The "little" people don’t so much need protection as they need to be left alone and not tied up in bureaucratic regulations and requirements–which actually end up benefiting only the major players and monopolists–the only ones who can afford to jump through all the regulatory hoops and the only ones who can afford to lobby.

And it is these aspects that his creation of ICANN places at risk. If ICANN survives, its next stop will be the regulation of content on the web. Its functions are surveillance and control of content, and control of competition so that the big players never have to take the risks of real competition. ICANN is run by those who want to use it to control what the unregulated Internet has seemed to render beyond control. For Vint the tragedy of ICANN is that it seems likely to sell out the possibilities that Vint’s work had created before he embraced the idea that the Internet in order to ‘be for everyone’ needed a governing board, the purpose of which, is to lock down commercial advantage for its sponsors.

Indeed one wonders if ICANN may yet create a feeding frenzy as special interests that see their futures threatened will barge in and grab parts of the ICANN machinery to defend their old ways of doing business from the threats posed by the success of Internet technology. In a worst case scenario the possibilities could become chilling. Requiring those who sell products over the Internet to be licensed by some Internet agency, and either have a physical storefront and/or post a large liability bond could be a typical anti-competitive scheme in favor of large corporate interests.

Cerf is now an ICANN Board member having been chosen by the Protocol Supporting Organization. Even Cerf appears to be taken aback by the way telephony and ITU interests are threatening to wrest control of IPv6 implementation decisions from the IETF and IP registries. We ask whether Cerf is a foil for the real players–who are the communications giants–including nationalized and gov’t owned telephone, broadcasting and cable systems. Do these major players want to tame the Internet and include it as a simply another transmission system under their control?

In a November 1, 1999 message to the ICANN board, sent by Vint to Dyson and Roberts and blind carbon copied to MCI-WorldCom ICANN stalwarts John Klensin, Theresa Swinehart and Susan Anthony and then forwarded to the ISOC Advisory Council, Cerf lectures the ICANN Board:

"First, I consider it the highest priority to try to make genuine progress finalizing and ratifying the necessary agreements to allow ICANN to move forward. That includes ratifying the agreements developed among ICANN, NSI and the Department of Commerce. I would be the first to admit that there are some risks associated with the agreements as proposed and that these will need to be dealt with sensibly, should any problems arise, but it seems to me vital to move ahead and to ratify the agreements so we can get some concrete experience with them. To debate these further seems to me counter-productive, particularly given all the other matters that ICANN should be addressing." [Editor: Note that he makes no provision for public, true open public input and commentary in a meaningful sense of recommendations which ICANN must follow or show cause why not. Nor does he make any provision for appeal or review of his "agreements."]

Cerf continues: "Second, the charter for the Ad Hoc Committee which was established at the Santiago, Chile meeting under a resolution passed by the Board, is in serious need of revision. Indeed, I would offer to the Board the view that the issues raised in the charter are indeed of vital interest but that the creation of yet another committee to address them ignores the powerful resources already available to ICANN in the form of its ASO, PSO and DNSO. I would urge the Board to delay implementation of this charter and to invite further comment in particular from the PSO. The Internet Architecture Board and the Internet Engineering Task Force have served the Internet Community remarkably well over the fifteen years of their existence. The Internet functions as a coherent entity largely because of the commitment of these technical bodies to extraordinary high standards for evaluation and assessment of evolutionary directions."

[Editor: Listening to Cerf what becomes clear is ICANN’s diversion of the many expert voices of the internet into endlessly sparring and essentially non-public committees such as the wg-c committee on new top level domains. These committees are given tiny little slices of the problem, and sent to talk quietly among their fellows, without much cross-fertilization or overview of what others are doing–and then they come up with draft solutions to tiny tiny problems–which can be discarded at will by ICANN, by declaring that these small answers conflict with large policy goals. This is a pretty standard political diversionary tactic–divide them into committees and isolate them from each other and from coordinated problem solving. This is a further demonstration that ICANN is not interested in the best technical solutions to their stated goals–they are interested in crafting political solutions supported by a rationalized technical solution (not necessarily the best technical solution) and they want political solutions which favor their sponsors. They have no desire whatsoever to allow real competition nor to favor and empower the freedom of choice of the small user.]

Cerf continued: "It is entirely reasonable to develop a clearer view of the requirements that may face Internet software, hardware and service providers over the course of the next decade, for example, but it seems to me vital to let the technologists respond to these requirements with their best assessment of direction in which the Internet architecture should evolve."

"If I had been able to join the Board for its meeting this week, I would have asked for time to speak strongly in favor of significant revision of the charter of the Ad Hoc Group to focus on requirements but to remand to the IAB and IETF the task of organizing responses to them. As all Board Members must know, the IETF is among the most open in its operating procedures. No one is denied an opportunity to participate. If the Ad Hoc Group is chartered in its present form, I believe its work could easily become counter-productive and surely that is not the intent nor the desire of the ICANN Board." Cerf concluded. [Complete statement at http://www.icann.org/cgi-bin/rpgboard/rpgmessage.cgi?adhoc;381DEE1800000005]

Also on November 1, 1999 the IAB sent ICANN its evaluation of this Ad Hoc Group. It included the following remarks. "The IETF has historically been the most effective provider of environments of the type needed but, in principle, need not be the only one. However, closed committees with appointed or externally-selected memberships are quite different from the history of successful Internet protocol work; the output of such committees has tended to not survive either operationally or in the marketplace. Stated differently, the experience with the network is that appointed committees, no matter how representative of a list of enumerated groups and constituencies, do not produce adequate protocols or even protocol requirements."

"The draft scope statement, as well as some of the discussions reported to us from the Santiago meeting, imply that some of the proposed participants in the ad hoc effort are unaware that most of the issues in the statement have been addressed before. Indeed, all of the topics listed under Phase 2 are current active areas of work in the IETF. The IAB brought together a diverse group of experts for a multi-day workshop in Utrecht in July to jump start the process of understanding some of these issues: A report from that workshop is circulating in draft now and should be published within the next few months. (http://www.ietf.org/internet-drafts/draft-ietf-iab-ntwlyrws-over-01.txt) The IETF also has active liaisons with other concerned standards bodies such as the ITU-T, the W3C, and the ATM Forum. We are unconvinced that yet another body, especially an ad hoc one, looking into these matters can lead to anything more positive than confusion."

"It is even unclear to us how we could identify IETF representatives to such a group. Its scope as currently defined is broad enough to involve multiple IETF Areas, with hundreds or thousands of participants. No one person, or even three or four people, has all of the perspectives and expertise such a group should have available," the IAB evaluation concluded.

Network Solutions began the summer with Jim Rutt as its new CEO and with what appeared to be preparations to do legal battle against the ICANN effort aimed at its destruction. With Congressional hearings titled "Is ICANN Out of Control?" scheduled for July 22, it appeared that NSI had succeeded in putting ICANN on the defensive. However, the first sign of trouble appeared when, only a few days before the hearings, the list of those who would testify was released. The slate was tilted strongly in favor of ICANN supporters!

For NSI the hearings were a disaster. Jim Rutt led off with a brief and almost frivolous presentation. His "I’m-just-a-country-boy" manner was ill-received and the Democrats on the committee tore into him. At the end of the day, instead of looking like the bully, ICANN looked like the good guys who were standing up to arrogant NSI. It was a stunning turn around. Something very strange had happened within NSI. Phil Sbarbaro, NSI’s lead attorney, had always briefed Gabe Batista before Congressional appearances. Batista had never suffered any kind of set back. Inexplicably Rutt was not briefed by Sbarbaro, but a by a team of "handlers" who assured him they knew what to expect and who missed by a mile.

In this context a meeting designed to turn around ICANN’s entire fate by bringing NSI under ICANN’s control took place in Washington DC on July 30. We got our first inkling of what was going on when we were sent the following message and contacted Berryhill who gave us permission to print it.

From: "John Berryhill, Ph.D., J.D." <john@johnberryhill.com>

To: <david.post@icannwatch.org>

Cc: <froomkin@law.tm>

Subject: Why do you have to "suspect" what went on between NSI and ICANN, when you know?

Date: Fri, 12 Nov 1999 10:55:56 -0500

"Greetings Prof. Post,"

"I’m a little confused by the parenthetical in this essay of yours, and wondered why you don’t know what went on during the negotiations:"

" ‘I greeted the news that ICANN and Network Solutions, Inc. have, at long last, apparently resolved their many differences and reached an agreement (assisted, one suspects, by some arm-twisting by the Department of Commerce) with mixed emotions.’ "

"Since Dave Farber was present during at least one of the negotiating sessions (on July 30, 1999), and if he’s ‘watching’ ICANN with you, then why does one have to ‘suspect’ what happened. Dave was there, he knows what went on. By random chance, I happened to ride the train to DC with him, and I gathered from him that he was providing some of the arm-twisting that you ‘suspect’. Don’t you guys talk to each other? Or does someone need an icannwatch watch?"

Curiously Yours,

John B. Berryhill, Ph.D., J.D.

Patent Attorney

Dann, Dorfman, Herrell, and Skillman P.C.

1601 Market St., Suite 720

Philadelphia, PA 19103

(215) 563-4100

Address provided for identification purposes only.

On November 16, Berryhill wrote to us: Gordon,

". . . . I got on a train to DC from Wilmington one morning, and Dave said something about getting together with people from NSI and Commerce. This issue isn’t my bread and butter, so I wasn’t following what he said as closely as perhaps I might have. I seem to remember him saying something about NSI claiming ownership of its database, and helping to pry their fingers loose or make some kind of deal. He didn’t say anything about who else was going to be there that I can recall. I meant to ask him how things went when I saw him later that day at Union Station, but when I turned around from putting my stuff into a locker near the waiting area I lost him in the crowd."

"It just struck me as odd that, from reading the ICANNWATCH site, you wouldn’t get the impression that Dave was involved in the deal, since Post’s article mentions that he "suspects" arm-twisting by the DoC. Then again, it’s not clear that this particular meeting relates to the ICANN-NSI agreement, but I seem to recall that was the gist of what he had mentioned. According to my diary, the trip was on July 30. Why not just ask Dave?"

"Hi Dave, Still waiting for your explanation of what the mission that the ICANN board needs to accomplish is and really wonder what the devil you were doing helping put the heat on NSI on July 30th ? You and Vint and IBM really ought to quit speaking in code: ‘their mission," "the Internet is in danger" and so on. Don’t you understand that IBM has bought itself control of a regulatory body for the internet? I understand John is an ex student of yours from token ring days at the U. of Delaware. Why ARE you so sensitive about your ICANN watch role? It seems to me it is terribly convenient to endorse it (ICANN Watch) without ever writing something for it. You claim concern...yet you refuse to disown them."

We queried David Post about the Berryhill message. Post responded: "Gordon: There is nothing particularly sinister going on, I don’t think. I did not talk to Dave Farber about anything that might have gone on – indeed, I don’t know for a fact that he was, or was not, at any negotiating session regarding the NSI-Commerce-ICANN agreements. If he’d like to comment on that, he’s free to do so. My parenthetical was really nothing more than a suspicion, based primarily upon public statements by DoC folks, that they were very anxious to see ICANN and NSI resolve their differences, and my impression that DoC believed that the fate of the entire ICANN enterprise was dependent upon an agreement being reached – which to me suggested that they would be putting pressure on both sides to reach some accord. Nothing more than that. David." To this Farber responded on the 18th: "Gordon, you are fishing in a dry hole. OVER AND OUT."

Berryhill wrote again on November 24: "Perhaps I should explain what my original question was about, which was directed to Prof. Post. I believe that Mr. Cook has positioned my comment on your essay in a context, and with connotations, that may be inappropriate."

"First of all, I know squat about ICANN and related issues. My only interest in the ICANN festivities is to become and remain informed in order to appropriately advise my clients, which include trademark holders concerned with enforcement of their trademarks, and domain name owners concerned with enforcement of others’ trademarks. Having clients on either side of these sorts of disputes, I would like to see such issues be subject to an even-handed, fair, and predictable policy. Only time will tell if the agreement the domain name owners are now having thrust upon them meets those criteria. Prof. Froomkin seems to believe, based on his essays, that it may not."

"My only other connection to these issues is that, through an accident of birth, Einar Stefferud et al. asked me to incorporate the Open Root Server Confederation because I’m a Delaware resident, and thus have a Delaware street address. That and a few dollars will get you a corporation. About two weeks ago, I was invited to join what was purported to be discussion of whether there were any issues under the Administrative Procedure Act implicated by any of the activities associated with ICANN. IMHO, the ideas that Congress saying "here’s some money, go play with computers" implicates the APA in how that play is conducted by the executive branch, and/or that fundamental "rights" are implicated in what amounts to an administrative aspect of an ARPA project "held over by popular demand" through the years by other administrative agencies, both seem more than a little overblown." [Editor: Eric Menge’s recent Small Business Adminsitration (SBA) letter stated quite flatly that ICANN should be subject to APA. However some other obsevers disagree with this conclusion.]

"Along the way, I asked for some pointers to information about ICANN, and the ICANNwatch site was among the pointers I received. From other pointers to ICANNwatch, I had gotten the impression that ICANNwatch was a disinterested watchdog organization or information clearinghouse of some kind. From reading the site, I gathered that ICANN Watch was a collaborative effort on the basis of such statements as "our mission" and similar first person plural phrases to that effect."

"I’ve gathered that there is a spectrum of levels of skepticism, from the mildly-concerned to the rabidly outraged, that ICANN has not appeared to be acting in accordance with statements in the DoC MoU about transparency and openness. It also appears that there has been a predictable negative reaction to the perceived lack of transparency and openness of ICANN. There is a natural cognitive tendency for humans to fill in blanks, and this tendency can be manifest in a range from curiousity to paranoia."

"Your essay about the ICANN-NSI agreement struck an odd note, since one of the members of ICANNwatch, Prof. Farber, was a participant in the negotiations. I know to a certainty who I met on the train from Wilmington to DC on July 30th, and I also know what he said he was on his way to do. I don’t generally hallucinate during the hours I record in my billing diary. I also sent Prof. Farber a note on August 4 referring to the conversation in answer to an unrelated question he had asked me during the trip."

"As you mentioned to Mr. Cook, there’s no reason to deduce anything "sinister", as you put it, in Prof. Farber’s participation in the negotiations, since Prof. Farber is one of the most respected figures in cyberspace and rightly so. By yet another accident of birth, I had the honor of attending the University of Delaware as an undergraduate and graduate during Prof. Farber’s sojourn there, and I know him to be possessed of a personal integrity on par with his intelligence."

"My question was directed at the potential for, um, energetic, individuals like Mr. Cook to perceive, and read into the gap, a disconnect between ICANNwatch’s criticism of a lack of openness in ICANN’s activities on the one hand, and the participation of one third of ICANNwatch’s constituent members in the attainment of a significant ICANN milestone - a milestone that was reached behind closed doors with unknown participants. Prof. Farber is the only known identifiable natural person to have participated in the actual deal, and his knowledge of the dynamics of the negotiation could be enlightening in terms of what alternatives were discussed, who else participated, and what the agenda was."

"Again, it’s not clear whether ICANNwatch is intended as a joint effort of some kind, or whether it is the independently-posted collected writings of yourself and Prof. Froomkin with the passive endorsement of Prof. Farber. If that’s the case, then so be it. But, if ICANNwatch is more than an uncoordinated essay-writing forum, for ICANNwatch as a collective entity to give the impression that the actual dynamics and interests represented during the negotiations are not within the first-hand knowledge of ICANNwatch, is damaging to the credibility of ICANNwatch as an objective source of information. In view of your "mixed feelings" about the resulting ICANN-NSI agreement, and Prof. Froomkin’s reservations about the new terms required in NSI registration contracts, the absence of any comment or disclaimer concerning Prof. Farber’s role in bringing about the deal suggests, at best, that ICANNwatch may need some corrective lenses. At worst, the appearance that one third of ICANNwatch has been a participant in just the sort of closed-door proceeding of which ICANNwatch is critical, provides a field day for the fertile and active minds of Mr. Cook and others like him - particularly when it is not clear at whose behest Prof. Farber was participating."

"I don’t think there’s anything "sinister" going on either. I had incorrectly assumed that you would have known that Prof. Farber had played a role in the subject of your ICANNwatch essay. I stand corrected, but remain curious as to why it wouldn’t have been discussed among the ICANNwatchers."

We asked Farber both privately and publicly who else was there on July 30. Farber did not respond. We assumed we’d run into a dead end when on December 9 we received an email containing the following startling text:

"Gordon: The July 30 meeting was called by John Patrick, who also ran that meeting. It was attended by John Patrick, Chris Caine, Jim Rutt, Mike Daniels, Brian Reid, Bob Kahn, Dave Farber, Scott Bradner, and an ICANN representative. Cerf was not there. It was held at the Hay-Adams Hotel. My impression of the meeting was that its entire purpose was to bully NSI into signing ICANN’s agreement. It was entirely Patrick’s meeting. Kahn, Reid, Farber, and Bradner were there as observers. The only negotiations that took place were between John Patrick and Jim Rutt. As far as I can tell the others were invited to this meeting for the same reason that Jimmy Carter is invited to South American elections." [Editor’s note: End of 12/9/99 email. This and the following six paragraphs were cited in our Preface above.]

We contacted some of the people named in that message. When we reached Reid, he confirmed that he was at the meeting. When we read him the paragraph above, he asserted that he did remember seeing all of the aforementioned people at the meeting. He said that "one of the IBM representatives had asked that the meeting and its contents be kept secret," but that he "was fairly jet-lagged" and "didn’t remember the details of the secrecy request." He added that "there ended up being no secrecy agreement, at least nothing written." Reid described his memory of the meeting as being "a dialog between John Patrick and Jim Rutt, but [he] couldn’t specifically remember any of the things they had said to each other." Jim Rutt, confirmed his attendance at the meeting. He said: "It was from my perspective a benign and positive sharing of points of view by some experienced people around the DNS management issue. I found it quite useful and constructive."

We contacted some of the people named in this message. When we reached Reid, he confirmed that he was at the meeting. When we read him the paragraph above, he asserted that he did remember seeing all of the aforementioned people at the meeting. He said that "one of the IBM representatives had asked that the meeting and its contents be kept secret," but that he "was fairly jet-lagged" and "didn’t remember the details of the secrecy request." He added that "there ended up being no secrecy agreement, at least nothing written." Reid described his memory of the meeting as being "a dialog between John Patrick and Jim Rutt, but [he] couldn’t specifically remember any of the things they had said to each other." When we contacted Jim Rutt, he too confirmed his attendence at the meeting and said: "It was from my perspective a benign and positive sharing of points of view by some experienced people around the DNS management issue. I found it quite useful and constructive."

Let’s identify the persons listed. Mike Daniels is SAIC Sector Vice president and the Chairman of the Board of Network Solutions. John Patrick is familiar to readers of the COOK Report as the spearhead of IBM’s GIP and ICANN building operation. Chris Caine is Vice President, Governmental Programs for IBM, Caine is based at IBM’s K Street Washington DC Office. This is Caine’s first appearance in the ICANN NSI saga. We find that appearance to be quite interesting since Caine’s office with its 40 employees is responsible for IBM’s lobbying and government relations programs. His appearance at this meeting appears to us to elevate the importance to IBM of ICANN’s success. Jim Rutt is NSI’s new president. Brian Reid, formerly the Director of Digital Equipment’s Palo Alto networkng Laboratory, is a researcher in networking; as far as we can ascertain Reid has been a neutral observer of the governance wars. We describe Dave Farber throughout this article. Bob Kahn, as co-author of the TCP/IP protocol with Vint Cerf, has ties to DARPA, the telcos and the telecom industry in general. Scott Bradner is an IETF Area Director and Officer of the Internet Society.

We are intrigued by the statement from our informant that "The only negotiations that took place were between John Patrick and Jim Rutt. As far as I can tell the others were invited to this meeting for the same reason that Jimmy Carter is invited to South American elections." Inviting men of the stature of Kahn, Farber, Reid, and Bradner as "observers," may be seen as an act of arrogance. But it may also have been an act designed to intimidate Rutt and Daniels who were relatively new to negotiations among top level Internet power brokers." The very presence of these senior statesmen would serve to further elevate the seriousness of the discussions.

The July 30, 1999 meeting apparenty belonged to the two IBM Vice-Presidents. The pattern is quite familiar to veteran IBM watchers who observe that when IBM doesn’t know how to cope, it reverts to its classic pattern of control. Control of the meeting, of NSI, of ICANN, and of the Internet, we would add. But the fallout of IBM’s behavior goes well beyond this meeting and stops at the highest levels of the Clinton-Gore administration. The relationships extend back to Al Gore and Mike Nelson who wrote the High Performance Computing legislation that Gore backed in Gore’s Senate days. We became an observer of Nelson’s moves with regard to IBM and Gore nearly a decade ago and remind readers of the path that Nelson has traveled from the Senate Commerce Committee to the White House Office of Science and Technology Policy, to the FCC and finally to employment by IBM in its governmental relations programs.

The relationships also extend to the National Economic Council’s Tom Kalil who met with Joe Sims and Esther Dyson on June 15, 1999 and promised to assist ICANN’s fund-raising efforts. We note that Ira Magaziner explained to us in September 1998 that it was Kalil who (as part of the White House’s preparation for the 1996 elections) asked him in 1995 to begin his research on electronic commerce and the Internet. When in March 1997 we were informed that Kalil was involved in Becky Burr’s refusal to allow ARIN to be formed, we emailed him and stated that we believed that he had an interest in seeing Al Gore elected President in 2000. We stated that his and Burr’s policy on ARIN was in danger of breaking the Internet, told him why, and warned that if it didn’t change and the ARIN issue exploded, we’d dog his footsteps with public reminders of what he had allowed to happen. He responded to this email and discussions began that turned the misguided policy around a few weeks later.

The relationships are tied to the administration’s habit of promoting a public policy that hands off regulator enforcement to industry for its own ‘self-regulation’ with the threat that if industry doesn’t self-regulate, the government will step in and do it for them. Magaziner was a long time proponent of this premise. Beckwith Burr from the consummately political law firm of Wilmer Cutler was espousing it at the Federal Trade Commission in 1995, two years before she was transferred from FTC to OMB and then to NTIA to wrest control of DNS and NSI from the National Science Foundation. It is now very clear that ICANN is not the legacy of Jon Postel. ICANN is the illegitimate off spring of IBM, and the Clinton Gore Administration - with the assistance of ISOC and Vint Cerf.

NSI and ICANN had been snarling at each other for months and things had reached a fever pitch when Rutt went down in flames at the House sub committee hearings on July 22. At the beginning of July, in Congress ICANN was on the defensive. But by the hearings, ICANN had gotten for itself a favorable witness list. Rutt did a poor job of preparing himself for the hearings. His cavalier performance was so bad that suddenly ICANN looked reasonable to many observers. Thus the last week in July began with both opponents wounded and exhausted. But each had something the other wanted.

ICANN’s Mike Roberts had basically a single position on NSI – one which questioned NSI’s very right to exist. NSI wanted to get ICANN to understand that NSI was here to stay and to disabuse itself of the notion that it could be destroyed by the ill-advised personal vendetta of Roberts, who had painted ICANN as being the deliverer of the Internet from NSI’s DNS monopoly. NSI, on the other hand, wanted Roberts called off its back and ICANN’s assurances of its continued control of .com, .net and .org. Now NSI had something that ICANN needed very badly. Money and plenty of it. NSI could pay ICANN’s domain name tax and ensure the stability of the entity that had come so close to bankruptcy in June.

But NSI had also emphasized that it was ready to go to court and challenge the entire authority of ICANN and the Commerce Department. ICANN had predicated a major part of its mission on putting NSI out of business. Remarkably the people behind ICANN simply did not understand that the officers of Network Solutions, because of their fiduciary responsibility to their stock holders would be legally liable if this happened. But not only did ICANN need NSI to collect the tax to keep it in business, ICANN needed NSI to obligate itself play in the ICANN registry registrar game. ICANN needed to demonstrate results by bringing the biggest registrar of all into its registrar business. Then it could spread the myth that it had brought competition into DNS while in reality ICANN had no choice but to extend NSI’s monopoly. In fact what ICANN accomplished was to continue the NSI monopoly, but with a much tamer and more obedient NSI, fully incorporated into ICANN’s empire.

Farber, in an interview with us early in June, had implied that, if the combatants could not come to their own solution, one would be brokered for them. Specifically when we stated: "So we could be close to a defining crisis at which we will see if we have any statesmen capable of emerging?’ Farber replied: "Yes and I do think that we have some. I think its time for a small summit of responsible stakeholders. [It] should be a small gathering . . . This eventually may become enough of an economic and political hot potato such that the Congress says look, come together and decide where you are going or we will do it for you."

By the end of the day we suspect that both sides had agreed that it was in the interest of each that NSI survive in order to pay the ICANN tax. The major conditions that remained to be established would be the details of the contract specifying how much NSI would pay and how long it would be permitted to continue to enjoy its monopoly. It would take nearly eight more weeks to work this out.

The winner was certainly not the Internet. The winner was primarily IBM which, as we have well documented in earlier articles, has been the major purveyor of the idea that the Internet needs ICANN for stability and control. NSI never really wanted to sign and could have likely prevailed in a court battle against ICANN, yet, after it had squandered its congressional offensive because of Rutt’s missteps and, without Don Telage (who had grown to detest ICANN) at the meeting, we surmise that Rutt and Daniels were ready to abandon their corporate autonomy for a settlement.

The tone of the meeting is very clear to our source. It was Patrick’s meeting. IBM was in charge. IBM was explaining the New World Order called ICANN to Network Solutions. Farber’s characterization of the meeting is much more benign - getting two companies to understand that they had interests in common and needed to sit down and talk. We suspected and Rutt confirmed that NSI’s take would be much like Farber’s - no sudden turn around. Nothing momentous. Yet the fact is that IBM’s Washington Office had through the GIP with Vint Cerf’s help created in ICANN an organization that would beholden to IBM for its existence and power. In sitting down with Patrick and Caine after months of hostility, Rutt and Daniels agreed to talk about an alliance that would change the face of the Internet, would hand policy making for NSI’s infrastructure to IBM’s satrapy known as ICANN. The alliance would deliver the revenue stream needed by ICANN for its survival and would, just as importantly, free Network Solutions from the its heavy and expensive burden of legal responsibilty for trademark disputes. NSI could say whenever someone wanted to sue them, "sue ICANN instead. We are enforcing their policy not our own."

Consequently on July 30 the two IBM vice presidents with four Internet dignitaries called in as witness to the mating, sat down with NSI to discuss doing ICANN business together. IBM stands here fully exposed as the primary power behind ICANN. NSI caved in not to ICANN but to the full frontal assault by IBM, IBM’s lobbying money, and the power of the US government as the enforcer - both of which were preparing to begin their third full year of operations on ICANN’s behalf.

IBM’s corporate culture remains still so wedded to control that it could not figure out how to approach the Internet apart from creating and installing by stealth an Internet regulatory body named ICANN. If ICANN were anything much beyond a front for IBM interests, we would have seen an ICANN that was able to fend for itself with monetary support from a broad range of corporations. Instead what was seen in June and July of 1999 was how little support that ICANN, as a corporate shell for IBM, could lay claim to.

That the July 30, 1999 meeting was a tuning point in the fortunes of ICANN from the point of view of its IBM creators is clear. As IBM has unloaded its global IP network to ATT during the past two years and sold its router business to Cisco, it has effectively gotten out of telecommunications and into electronic commerce as its 21st century growth strategy. That Chris Caine would appear in front of NSI on behalf of ICANN on July 30 gives clear indication that IBM, so far effectively stymied by NSI in its efforts to empower ICANN, felt it critical to bring in reinforcements.

According to the June 14, 1999 issue of Business Week, IBM senior vice-president and corporate counsel Lawrence R. Ricciardi is the most trusted adviser to IBM Chairman Louis V. Gerstner Jr. "Another unofficial Ricciardi role: Mentor. He’s working with several execs, including Chris Caine, vice-president of government programs. Ricciardi plucked him from two levels down in the organization to run IBM’s lobbying efforts. In late February, Ricciardi flew down to Washington to get an overview of current legislation and lobbying efforts from Caine and his 40-person staff." http://www.businessweek.com/1999/99_24/b3633192.htm

We may be certain that Caine keeps Ricciardi and Gerstner informed of the efforts of his office on behalf of ICANN. Other than being responsible for a multi million dollar IBM lobbying budget in Washington DC, Chris Caine is clearly linked to IBM’s huge investment in electronic commerce. Caine is a member of President Clinton’s Advisory Committee on International Economic Policy. http://www.state.gov/www/issues/economic/aciep_advisory.html. In January 1999 he was a speaker at the Ziff Davis Millenium Series conference Sustaining Growth in the Internet Age. His topic was: "Cyber Policy - Developing Industry/Government Relations What are the emerging ‘rules of engagement’ for IT industry/government relations"? http://www.zdstudios.com/millennium/1_growth/sched.html

On January 25 1999 Computerworld Online News published a story titled "New E-commerce lobby aims to curb online laws." elobby http://www.computerworld.com/home/news.nsf/idgnet/9901251elobby The article describes actions of the Global Business Dialogue on E-Commerce (GBDE). The GBDE grew out of a meeting called in June of 1998 by Martin Bangemann, Member of the European Commission. Bangemann "invited business leaders