A Practical Navigator for the Internet Economy



ICANN is moving forward inexorably. Whether it is moving toward triumph or ready to fall off the cliff remains to be seen. It has great trouble getting its sense of mission accurately adjutsed. On June 13th IBM Vice President and GIP officer (with the assistance of Esther Dyson, Vint Cerf, and Mike Roberts) wrote privately to Silicon Valley venture capitalists soliciting funds for ICANN. Patrick: "ICANN is trying to get the policy, technical and financial aspects of the Internet moved successfully from U.S. government to the international private sector. Everyone thinks this is a good idea. In fact, I would say that the future of the Internet is dependent on the execution of the plan."

Consider carefully his words. Remember that Esther on August 29 chidingly asked Dave Farber not to call ICANN the Internet's "Oversight Board" since ICANN's purpose was nothing more than dealing with a subset of technical coordination issues.

Since its establishment last October ICANN has waged a calculated campaign of deception. But in the last two weeks since ICANN's regimented Santiago performance, public perception is shifting. It has waged a stealth campaign designed to get Internet user's hatred of Network Solutions focused on and supportive of its announced purpose of ending the NSI monopoly over .com. With less arrogance on the part of Dyson and Roberts it might have succeeded. However as ICANN has said one thing and done another, people are beginning to catch on that its goal is to establish its own monopoly, in place of that of NSI.

In the September 6th issue of Business Week, Mike France wrote: "if Esther Dyson & Co. prove that they're able to successfully manage domain names, then they would be in a strong position to handle more urgent policy problems such as protecting intellectual property. While no one is asking ICANN to take on more responsibilities yet, the group could tackle problems more swiftly than the alternative: new and untested Internet regulatory agencies."

"The second reason ICANN's influence could grow is that domain names are starting to be viewed as a potentially powerful method of getting Netizens to obey the law. When people buy names for their Web sites, they could be required to sign a detailed contract obligating them to comply with a certain set of rules governing the sale of products, the use of someone else's intellectual property, the display of sexual content-you name it. If they violated the terms of the contract, they would forfeit the domain name. That may not sound like a particularly serious penalty, but on the Internet it's a death sentence."

"While this may sound far-fetched, it appears to be the most efficient way of enforcing the law on the Net. Already, ICANN is contemplating forcing applicants for new domain names to agree to a set of rules blocking so-called cybersquatting-the practice of registering well-known corporate brand names as domain names before the actual owners have a chance to do so. [Editor: Blocking much more than just this. According to its March 99 Registrar Accreditation Criteria, ICANN could revoke a registrant's domain name for a wide variety of infractions.]"

"''After all the talk over the past few years about how difficult it will be to regulate conduct on the Internet,'' says David Post, a cyberlaw specialist at Temple University School of Law, ''the domain name system looks like the Holy Grail, the one place where enforceable Internet policy can be promulgated without any of the messy enforcement'' problems, France concluded."

The battle is not just about NSI anymore. Awareness of the profound reach of the ambitions of Cerf, Dyson, Roberts and Patrick for ICANN is growing. As shown in their private June 99 fund raising correspondence this group is holding ICANN out as the only hope for the continued commercial success of the Internet while, at the same time, warning that the stability of the net and the fate of electronic commerce hang on the balance.

ICANN is taking such care not to be legally accountable to anyone that people are beginning to wonder why. Under California law it looked as though ICANN members would have had some real authority by state statue to examine corporate books, and bring derivative actions against the corporation. ICANN had always asserted its accountability to a doubting public by saying that its members would elect half the board. In Santiago however they were deprived of even this right by the establishment of a membership council that they would elect. The council would then select the board members. Never mind the fact that ICANN's shadowy controllers have now decided that that the membership will not be activated until a unreasonably large total of 5,000 members can be chosen by means yet to be determined.

The reasons for ICANN's intransigence have finally become clear as we recount in a 4,000 word introduction to this 27,000 word part 2 of the November COOK Report. If one goes back over the details of events since Landweber sent his October first master plan to the ISOC Board in 1995, ISOC has been single mindedly pursuing a campaign to make itself (now via ICANN) legally responsible for Internet technical administration. ISOC's first move by itself in 1995 angered the ITU, INTA and WIPO. The later two had decided that DNS service presented unique problems and unique possibilities. If they could link trademarks to domain names, it would become much easier and more cost effective to enforce presence in cyberspace on terms favorable to the most wealthy corporations and unfavorable to individuals and small businessmen. As a result ISOC invited its early critics, Walter Tramposch for WIPO, David Maher for INTA and Robert Shaw for the ITU to join it in another attempt to garner legal control over DNS policy and the Root servers. This resulted in the IAHC and gTLD-MoU which itself was attacked in 1997 by others upon whose interest ISOC's emerging coalition trod.

When with the issuance of the Green Paper in 1998, it became obvious that the IAHC coalition had failed, ISOC, in early 1998, invited its critics into the fold once again. In a complete abrogation of responsibility on their part to ensure that an open process would follow, the democrats released the White Paper in June 1998. This document was built on a clever ruse. It stated that the Clinton Gore administration would keep its hands off the Internet by approving an industry led effort to develop "newco" which in October of last year was re-labled ICANN. The reigns of authority however were turned over to the lawyer Joe Sims as a new member in the Cerf, Patrick, Heath partnership. One of Sim's duties was to keep Jon Postel legally defended. Sims accomplished by writing a set of bylaws that created an unaccountable California public benefit corporation to reimpose the defunct IAHC gTLD-MoU solution. This time with the European Commission added to the ISOC coalition in a partnership with the ITU to enlarge ICANN's powers over Internet protocols and the assignment of IP numbers for the purposes of routing in the Internet. Mike Roberts had been part of the ISOC inner circle for some time. Esther Dyson was added now for her corporate networking abilities and a Board representing the ISOC, old line telco and intellectual property interests behind the latest ISOC coalition was announced.

ICANN, set up under the guise of forming the permanent corporation as quickly as possible, then began, instead, to make policy. Its agenda was to cement itself in control of making policy decisions about DNS, IP numbers and Protocols as quickly as possible. It hoped to be recognized by enough players to begin to be able to make decisions that, if obeyed, could acquire the force of law through practice. Its agenda was not to provide open and transparent coordination of Internet plumbing but rather to deliver a set of rules that would place its trademark, and old line telco supporters in the driver's seat where they could use the new body to place themselves firmly in regulatory charge of the Internet's key infrastructure. The supporters were so transfixed by the enormity of the possibilities in front of them that the small clique which guided ICANN was also moved by the same arrogance that caused IAHC to crash and burn. For nearly a year it has gone full speed ahead and steam-rollered over all opposition. What it has finally begun to do is alienate many of its early supporters who now quite correctly are wondering why it should be needed in the first place.

ICANN has high hopes of succeeding because it is the consumate insider's battle, convoluted and hideously complex. We offer this long article as documentary evidence of ICANN's deceptive practices as it dodges and feints and uses continued secrecy to push its agenda on behalf of its ISOC, trademark, telco and EC masters. This is a battle not only for the control of telecommunications world wide but also for the rules on which electronic commerce will be played. If Mike, Esther, Vint and John have their way, it will be decided out of sight and away from any citizen oversight by a small elite group of corporate and government bureaucrats. The battle is likely nearing a turning point and one must hope that the rest of us can work through Congressional action to obtain justice and accountability since the Clinton Gore administration has abdicated any leadership

Editor's Note: I will put it up on my web site in a couple of days. Someone on the ICANN side asked me why I am doing this which certainly will win me no friends among powerful people. My answer is that it is a matter of principle: the end, does not justify any means. For the full text of part 2 of the November 99 COOK Report, click on What's Behind ICANN? - September 1999