The COOK Report on Internet

Octiber 27, 1998 (Extra Edition)

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(c) COOK Network Consultants (You may distribute this extra edition in full to anyone whom you chose.)

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New IANA Formation Ending Amidst Uncertainty, Congressional Inquiry of Magaziner & the Death of Jon Postel

ICANN Supporters Use Closed Process to Create and Sell Corporation That Now Must Operate Without Jon - Modification of ICANN Bylaws is Likely Outcome

The Mighty Five Install One of Their Own as Interim President and Ignore Magaziner's Wishes

Editor's Note: We have put a large number of hours into this piece and we expect to be severly criticized for stepping on the toes of a lot of powerful folks. Make no mistake about it. We are partisan. (We explain the nature of that partisanship in Appendix Three of this document.) But we have also tried to look at the totality of information out there and attempted to make some sense of it. We have tried to paint the big picture here in all its global complexity and to flush the players out from behind their closed doors.

We appreciate and respect the unique role that Jon Postel played in the creation of the Internet. As we watched the gap this summer between the IFWP process and the IANA drafts we, like Larry Lessig, became very frustrated at what looked like Jon's Olympian detachment. But as we have spent the past ten days in preparing this work, we had concluded that to the extent there is blame, the blame belongs to Jon's lawyers and those advising them and not to Jon. All of these other people have assuredly been acting from the point of view of what they believe to be the good of the Internet. But we believe that some of them have errorred in abandoning the principles of openess that have given the net its unique strength.

A "Prequil" 10/27/98: The "Mighty Five" Institute Their Board

A Confused Picture

As I get ready to fly to Nepal tonight I am continuing to be deluged with new information from senior net people whom i have known mostly for five years or longer. Needless to say the information they give me is with the assurance of anonymity.

It is not a pretty picture. The Mighty Five: Mike Roberts, Vint Cerf, Dave Farber, Larry Landweber and Scott Bradner people are saying began planning their benevolent coup d'etat a year ago. These are the internet old guard, or as it were god fathers of the net. Well meaning benevolent dictators. They are all either founding members of ISOC, present or past presidents of ISOC or current ISOC board members. They have all been supporters of the MOU, IAHC, CORE POC and PAB. And now they are about to have the last laugh on 18 months worth of Ira Magaziners involvement.

As i documented in the article I published on October 20th, these five - working they claim with Jon postel - choose the ICANN board in a series and oversaw the establishment of by laws that render that board accountable to no one. This board selected by this self-appointed mighty five then turned around and obligingly selected Roberts - one of the five two whom they owe their seats as interim president. How cosy.

Mike Roberts Management Style

This mornings' email brings detailed complaints about Mike Roberts modus operandi.... from senior internet people....

That he mixes a combination of self righteousness and disdain for those who don't see the world his way. his response to me a month ago when I expressed dismay that ICANN backers with no indication of support from the US government had gone ahead and completed the process of incorporation..... was in effect darn right....what did you expect? why should you be surprised?

That when he is given something to run, he runs it as he pleases without oversight and without accountability from membership.

That he pretends to listen and then does whatever he wants.

That he has an unwavering belief in his ability to always make the right decision and is unwilling to listen to criticism or to views of those who see things differently.

Not something that should make those of views differing the from the MOUvement very comfortable. We have gone through 18 months of federal government led debate that ICANN is now fully prepared to thumb its nose at Ira Magaziner has I have concluded been made a fool of by the mighty five. Ira wants this resolved now. He wants changes in the bylaws NOW. The mighty Five having selected Jones, Day Reavis and Pogue to be the law firm to create ICANN and give them guidance have come up with one tactic of delay after another. here is the lates one. After more than a weeks delay the board without by laws chooses Esther Dyson as its chair and mike roberts as its president. And this morning Esther sends a message to ORSC and BWG and the entire board. The message says essentially the board will meet you in an open meeting on or about November 15th in either Boston or LA to discuss with the moderation of the Berkman Center the by laws.

No meetings before then, no telecons, no nothing. The board it would seem is treating Becky Burr's letter with the greatest levity. Perhaps it can afford to because either it has a pre-cooked deal, or with Jones Day on its side and the GIP ready to hand out money it doesn't need any federal government money to carry on with? I would however like to know who is paying the salary of the IANA staff presently? I have been told that they received layoff notices from ISI.

A Call from Ira Magaziner

At 4pm Ira Magaziner returned my call with some very interesting and apparently contradictory information. He had been called by Esther dyson within the last 24 hours. Esther assured him that ICANN WAS NEGOTIATING NOW WITH BWG AND ORSC. That ICANN would have a new set of draft by laws into ira next week and that they would use the time between then and the Berkman Center meeting to further refine them. That the Berkman Center meeting would be it was hope and final wrap-up consensus agreement session.

This is an interesting contrast to what I have been told by other sources. I make no judgements except to report that what I hear from credible people directly involved, people whom I know well, is different than what Ira is told. let is be said that Ira again stated that without full consensus on the bylaws ICANN would *NOT* get USG approval.

ICANN as the PAC of the GIP?

Meanwhile lets look at the GIP. IBM's John Patrick in the thick of things.... having grabbed Mike Nelson, long time governmental friend of IBM, from his position at the FCC. Mike obviously has and will continue to provide knowledge of the federal process, that John Patrick can use in furthing the corporate aims of his employer. And then Vint Cerf, Mighty Five member, standing there with Jon Patrick several months ago in announcing the formation of the GIP for the greater good of the global internet. To date GIP has raised $160,000 of the $500,000 goal for ICANN with contributions from IBM, MCIWorldcom, Cisco, Ascend and a small email shop. Can I be blamed for thinking of ICANN as the PAC - the political action committee of the GIP and ITAA's?

I need to ask again how can a board elect a president in the absence of by laws? Although, the board I am sure could adopt the "draft five" non sueable non accountable bylaws at a moments notice.

If the might Five had wanted to give American big business an unaccountable, non sueable PAC for making the internet dance to their tune, could they have done a better job? A master stroke that leaves Ira Magziner and the US Government looking extremely foolish.

I ask the Mighty Five to come forward and state what is wrong with an open and accountable mechanism of internet governance? In looking at the ORSC by laws, what do they fear? What do they find repugnant to the open nature of internet self governance in the ORSC by laws. One of the five said to me that this was something very new and very important that they were trying to bring off and that if it worked there would be other moves to copy ICANN.

Some Requests for our Benevolent Dictators

Well, sorry, it should not be allowed to work. The "end" does not and never should be used to justify any means as it has here. What gives the Mighty Five the right to function BY STEALTH as the designers of internet governance for the entire world? They say they are benevolent, but they have deceived the rest of us to create an ICANN that clearly fails the tests that the US government has set for it. They believe that they have all the answers. Their view of the net is undoubtedly genuinely held. but it is a narrow and biased view. It is a view where if you are a constituent you will be looked after but if you have a different outlook then you have a problem. We want and need reasonable people who will listen and engage their critics. Who will grow and learn with their critics but so far this has not been the case. And now Esther Dyson sits there just daring anyone to do anything about the coup d'etat that she and the five have just executed.

Let the Main Narrative Begin

October 19th -- Who's In Charge?

Until the bombshell of the Congressional inquiry hit on October 16 and the sad news of Jon's death arrived on the morning of the 17th, it looked like we had arrived at the finish line for a decision that will irrevocably shape the future of the Internet.

And now, after talking with various people including twice with Ira Magaziner on October 19 the following is clear. Sources say that Magaziner believes that he has tried to run an open, fair, and honest process. He believes that the letter to be issued in the morning will enable the award of a cooperative agreement to ICANN that will be the result of a process by which ICANN adopts the most critical portions of the BWG and ORSC bylaws. He further expects to have a clause in the agreement that will ensure that the selection of the final board will truly be open. Finally he hopes that this will pave the way this weekend to the acceptance by all parties of the true consensus agreement that he says he has always been seeking.

However, they say that he was caught off guard by the events that flowed from his belief that, having said the private sector should create the entity, he could afford only to suggest to the participants that they should do certain things. He believed that he had their commitments and trusted them to live up to those commitments. But he found out only after carrying out the discussions aimed at finding the necessary consensus with the Boston Working Group and ORSC, among others, that many requests he had made to Joe Sims to negotiate with these groups and seek consensus were ignored by Joe. Neither group had ever received any contact from Joe. Also Ira is said to be very displeased the results of asking IANA and Joe Sims to have a list of board candidates out for public discussion by the second half of August. When this date was missed he then called loud and clear for the 23rd of September.

That although Ira expected draft five, and had demanded the removal of clause 4.1 (d) and (e), Ira did not know that it would no longer be a consensus draft between IANA and NSI. That he talked with both Jon Postel and Joe Sims on Friday September 25 and Tuesday the 29th. That the onset of Jon's final illness occurred a day or two after the conversation on the 29th. That not only did Sims fail to bring any names as nominees out before September 30 but, of course, that when they came out on October 2, the board was a fait accompli. That this was a major failure for the process that Ira had asked Sims to assure him that he would not allow to happen.

When today I asked why the government was giving the agreement to Joe Sims since Joe's client, Jon Postel was no longer alive, I was told that Sims has a letter of agreement for his legal pro bono services signed with Herb Schorr the Director of ISI (Jon Postel's home institution) on behalf of the "IANA function." That Sims was always the attorney for the IANA function and never functioned as Jon Postel's attorney. That ISI is now the client and will be the receiving entity for the cooperative agreement, if Sims negotiates in good faith. (We hope that ISI has provided Ira with a copy of its agreement properly dated. Some readers may remember that this is the same ISI who effectively with drew its legal umbrella from Jon in its letter of April 4, 1997.)

Several sources I then talked with found this to be shocking news. So I have made two calls to Sims' office to get his response. The first call left the message with the secretary. The second time I asked whether there was a response. No. Did you talk with him? Yes. So he got my message? I didn't say that he got your message, Mr. Cook. Well did he? Do you have anything else that you want me to tell him? Yes, that I would appreciate an answer. Goodbye. I made a call to Herb Schorr the director of ISI. Does ISI have a contract (letter of agreement) with Sims? Yes or no? My call was never returned.

This whole dodge and feint process is an example of what is wrong with the whole process the entrance of Joe Sim's. What we have is the appearance of a pro bono attorney where the circumstances of his relationship with Jon Postel were kept (one must assume by ISI and Sims) effectively hidden. I asked Sims earlier in the summer on several public lists when I pointed out that Sims was working without charge for Postel to reveal whether he had a letter of agreement with Jon. He did not answer. I am only sorry now that I did not press him for it.

I have heard some extraordinary assertions from the US government about Joe's lack of cooperation with the same US government. In this case it appears that Sims has arrogated to himself the primary responsibility for negotiating further changes to the agreement. (Another uncertainty is the question of who signs on for the fiscal responsibility involved in the transfer of government assets.)

I am very glad that Ira has made it very clear that the letter to be sent to Herb Schorr of ISI in the morning will explain that Joe's bylaws are deficient in a lengthy list of issues involving of political transparency, fiscal accountability and many other areas common to the complaints of both the BWG and ORSC. That this letter will make clear that, if the US government is to work with Schorr and ISI in handing over US assets to the ICANN corporation, Sims must agree to enter negotiation with ORSC and BWG. That these negotiations must be rapidly completed if Sims is to demonstrate that he is working this time in good faith with the government. That when the negotiations are complete both ORSC and BWG will be asked by the government whether or not they accept the bylaws that Sims puts forward. Only then will the government begin to negotiate the completion of the agreement with ISI and Sims.

Ira, it seems, has appeared to be operating in bad faith because things have gone differently than he had been led to believe they would by Joe Sims. What Ira said he expected to happen did not always happen, especially last month and this. We have had perhaps 15 conversations with him since November 1, 1997 and perhaps six of those since September 21, 1998. One thing that we find very striking is the unwavering consistency of the process that Ira has said that he has attempted to follow. Others have noted this consistency as well. We have said some harsh things about him recently. If he can bring off what he has outlined today that he intends to, the Internet will owe him a debt of gratitude.

For the unthinkable has come very close to happening. Ira can not permit the man who presided over such a non responsive process as the one we have seen to walk off with the first legal charter of the internet that would have been essentially accountable to no one except the attorney general of the state of California. Stop and think. Joe's firm will in all likelihood become corporate counsel to ICANN. The Technology Issues Practice (TIP) of Jones, Day could have been then in the singular position of having created a governing entity especially amenable to the desires of the large corporate clients of Jones Day -- the very clients that the TIP is positioning itself to serve.

Can one believe that the first set of these unaccountable bylaws were completely divorced from the interests of Jones, Day, Reavis and Pogue's present and future clients? For example given that Jones Day's intellectual property practice is among the largest in the world, it is likely that many of them would not like to have ICANN approve new TLDs since they will then have to defend their marks. And is not there at least the danger of a conflict of interest in Jones, Day being likely to represent both ICANN and those who may want to challenge it? It is troublesome to know that Sims, who is such a prominent player of late in this negotiation, comes from a law firm that would stand to benefit enormously if the ICANN deal goes through unchanged. And that Sims, having been just the pro bono attorney, with Postel gone, appears to be the principal with whom others are negotiating. Maybe part of the final agreement should be that the legal contract for ICANN representation should be put out for bid?

Only the End of Stage One

However, even if Ira's startegy succeeds, this is really only stage one. During the first year its interim board members must select a president, and then chart a course by which permanent board members are chosen. It must make a contract with Network Solutions to determine what will happen to NSI on October 1, 2000, select a names "supporting organization" (council) and then contract with it. They are likely to have multiple choices for many of the organizers of POC and CORE are meeting under the banner of Domain Names Supporting Organization in Spain on October 16 and 17th. In addition, the organization must also make contracts with the three IP number registries. It must also solve the problem of what kind of membership it will create and further define the responsibility of the board to the membership. It must do this without Jon Postel as CTO who died during the night of October 16 - 17th.

ICANN, The Internet Corporation for Assigned Names and Numbers, has a board of nine mostly business people that can certainly not afford huge amounts of time to devote to a task that to have much hope of success should require a full time effort. It must fill the CTO job. People like Scott Bradner and John Curran would have the technical qualifications. The problem is that the commercial industry would prefer someone like a Curran who best understands the needs of the industry. But Curran and the better known of these people at other major ISPs are in positions paying far more that this one could be expected to pay. Then there is the difficult question of the CEO himself. A search firm will obviously be used and a huge amount will be dependent on the outcome.

The Congressional Inquiry

To complicate matters further, on October 15 Tom Bliley, Chairman of the US Congress House of Representatives Committee on Commerce, sent five page letters to Ira Magaziner and Commerce Secretary Daley, asserting his disappointment that IANA "did not meaningfully participate in the IFWP process," and that it developed its "proposal behind closed doors with little consultation from the broader Internet community." Bliley complains [very much out of context] that even Jon Postel's 10/07/98 testimony stated that the selection process for the ICANN Board was "undemocratic and closed." He is concerned about the absence of "a solid American majority" on the interim board. He complains that the comment period was inadequate. He expresses doubts that the Commerce Department had the legal authority to take the cooperative agreement from the NSF.

"Pursuant to Rules X and XI of the US House of Representatives" he requests by November 5, 1998 every shred of information relating to Magaziner's knowledge of these events and his justification for actions taken. The rest of the letter reads like a subpoena and we can imagine that the data will fill several boxes. One observer commented that the Bliley investigation was the result of Ira's allowing the process to go behind closed doors at the beginning of September. Another said he hoped that it would be explained as nothing more than a process of miscommunication, wondering aloud what force that had enough power to do this wound up being so dissatisfied by the outcome that it would use its leverage with the committee. A third suggested that lack of an American majority on the board was the real motive. Commerce intercedes for big business. [For the text of Bliley's letter see Appendix One. Note also that Bliley sent the same letter to Commerce Secretary Daley - with the same set of demands.]

Readers should take no comfort from the intervention of the Commerce Committee. It is positioned as an attack on the authority and competency of the Executive Branch's handling of the situation. It may become a lever to force the issue into the hands of Congress. Although we have been critical of both Becky and Ira, we believe that Congress is all too likely to make a bigger mess should it try to wrest control from the Executive Branch. Bliley's statement that: "I am concerned that the lack of a solid American majority on the interim board fails to reflect the leading role of American business investment and consumer-use in the growth of the Internet," is as close as his letter comes to stating a real motive behind Bliley's actions. The question of whose intervention could have been a strong enough one to create such an attack on the Administration's authority comes to mind. Who might have despised what Ira and Becky were doing to them enough to want to bring down the wrath of Congress on Magaziner? We have heard from third parties that the tension and bitterness between Ira and Becky on the one hand and NSI on the other was extreme. From the Wall Street Journal article that ran on October 8th, we know that NSI employed some major lobbyists. Such circumstantial evidence of course proves nothing.

So Wither Magaziner and the Executive Branch?

As we go to press the situation is this. Sources have told us that letters from the Commerce Department may go to ICANN and the other applicants by Monday evening October 20. These letters will describe the conditions under which the Commerce Department is prepared to make an award. From an October 15th interview with Ira Magaziner, we are optimistic that US government's conditions will repair the major deficiencies of the ICANN draft by insisting on a Board that is accountable to ICANN membership and has adequate fiscal accountability as well as several other conditions. Bliley's investigation will increase the pressure on Ira to put pressure on ICANN to adopt the ORSC (Open Root Server Confederation) by-laws and hopefully to find a new Board.

Of course, with Jon Postel's passing we must stop and ask: Just who is ICANN? Joe Sims and Mark Weinberg of Jones, Day, Reavis, and Pogue? Right now they are the essence of ICANN. While Joyce Reynolds, Bob Braden and Bill Manning (IANA employees) are respected and competent, they lack Jon's moral authority. Sims and Weinberg certainly have nothing to offer the Internet community beyond a set of bylaws that have been harshly criticized both before and during the most recent six day comment period.

Ira can be very glad that ORSC drafted its own set of articles and by laws and its proposal to become the new IANA Corp. after it realized the heretofore hidden rules by which ICANN was playing. Ira really needs to find a way of showing Bliley that his accusations are ill founded. Telling him that the philosophy was to let the private sector figure out on its own how to create the new IANA may not cut the mustard any longer. Ira could decide in favor of the ORSC proposals outright. But what is more likely is that he will go with ICANN on the condition that it accept the ORSC by-laws. He has very strong leverage to assert this by saying to ICANN: "if you choose not to agree, I will have no choice but to turn government resources over to ORSC." He could also stipulate conditions of real openness for the choice of a final board. He could then require the interim board to meet them as a condition of final remission of government resources in advance of October 1, 2000.

Now a careful read of the endorsements for ICANN documents shows that bulk of them come with significant reservations. If one takes the reservations and categorizes them, one gets a picture of by-laws that look very much like ORSC's. The by laws can be fixed. One critical question is, given the way in which the board was chosen, and absent the moral authority of Jon Postel, is the ICANN shell still viable? The next critical question is (if we assume that Ira must insist on changes) since legally he cannot force Sims to agree and cannot be too blunt about telling Sims what he wants done, will Sims resist the suggestions that he can expect to receive on Monday the 19th of October?

Bylaws Must Be Changed

What evidence is there for the assertions that we have just made -- in addition to what Ira told us directly on October 15th? Consider the 10/16/98 comment to IFWP by Milton Meuller of Syracuse University and the CATO institute. "An interesting pattern emerges from the NTIA comments. In many cases, one sees in the beginning a qualified endorsement of ICANN, and then when one reads down into the meat of the comments, one finds powerful criticisms of the ICANN proposal which make it clear that what they really want to see is something much closer to the BWG draft; that is, they want: --a requirement of membership --a more restricted role for the supporting organizations --an improved interim board.'

"Here, for example, are Verio comments. First, they say: 'With some modifications, the proposal of the Internet Assigned Numbers Authority ("IANA") will accommodate the need for Internet community participation and accountability without risking undue delay in the establishment of the new corporation.' Then they say: 'The IANA proposal should be modified to direct the Board to structure the DNS Corporation as a membership corporation -- a decision that the present IANA proposal leaves to the Board's discretion. Also, the IANA proposal should be modified so that the Supporting Organizations, which IANA would permit to dictate decisions of the Board, have the power only to advise the Board.'"

"CIX follows the same pattern. A seeming endorsement followed by devastating criticisms: Beginning: 'The Commercial Internet eXchange Association (CIX) is pleased to submit a statement endorsing in principle the transfer of the IANA functions to the new ICANN Corporation.' Later:'1. The current bylaws of the Internet Corporation for Assigned Names and Numbers do not provide for an elected board but a self-perpetuating board accountable to the State of California rather than a membership. To be sure, the fifth revision provides for a possible membership corporation to which the board would be responsible and accountable, but at this time such a relationship is not guaranteed.

The absence of true accountability and responsibility is a fundamental deficiency that vitiates transparency and openness...' '2. If independent judgment and diversity are crucial to the board members' qualifications, how do the proposed nominees satisfy these criteria? While the nine proposed at-large board members are all distinguished citizens with admirable professional qualifications, CIX is unaware of how these individuals were chosen. We note, however, that commercial interests are under-represented, especially from commercial users and the crucial Internet service provider sector that provides access to the Internet for institutions, businesses, and individual consumers.'

CIX's recommendations: The proposed bylaws should be amended to prohibit employees of the SOs from serving on the board of directors; The nominating process must be opened up, and no SO names should be accepted until that occurs; The bylaws should be amended to require that the new corporation should be a membership corporation with the final election procedures and membership entails to be determined by the permanent board'"

"'Similar criticisms come from the European ISP associations, from APIA, etc.' Apparently, relatively few commentators are willing to come out directly and endorse BWG or ORSC, but the substance of their comments indicate that they are in complete support of their dissent."

As if all of the above weren't enough, organizationally we are also in for a change in government leadership. Magaziner is expected to leave in January. Elliot Maxwell has just moved back to the Commerce Department from the FCC. He reports to the Chief Counsel of the Department who in turn reports to the Secretary. Still Ira Magaziner reports directly to the President. Elliot, although highly respected, is now three layers removed from the President. Key players are uncertain whether this demotion within the power structure will harm the interests of the commercial net.

ICANN: The Secrecy and Arrogance Continues - Oct 23

See http://www.techweb.com/printableArticle?doc_id=TWB19981022S0009

COOK Report: 48 hours after the US government letter went to Herb Schorr we have a response of sorts from Joe Sim's. Sims, once the attorney for Jon Postel, at some point signed a letter of agreement with Herb Schorr, the Director of ISI, so that his effort would still have legal standing after Jon's untimely death. It turns out now that Sims is following the instructions of the USG that he negotiate changes with ORSC and BWG by announcing that "it would not be successful to accept ideas from small groups of people [ORSC and BWG] and then lose the support of large [unnamed]groups."

Secrecy is Not the Answer

COOK Report: Mr. Sims: at some point I hope you will have the decency to identify your clients. Right now they can only be seen to be for an undisclosed and unannounced cabal of "large groups" of supporters of ICANN. For you to suggest that you may have to ignore the instructions of the United States government lest, in obeying, you alienate "the support of large [unnamed] groups," is quite frankly an insult to the wishes of the US government and I suspect to the wishes of the majority of the users of the internet.

When Jon Postel was alive, you could say that it was he who wanted the content of the early drafts. Now that he is gone.........you no longer have that opportunity. So instead of speaking for Jon Postel, you now speak for a "cabal" of "large groups" who apparently want an ICANN and a board that they can control and who would look to be unwilling to let the rest of the world know who they are. Such reticence alone renders them extremely suspect.

We don't know:

2. who chose the board,

3. who is now acting through you to block changes to the bylaws that the US government is asking for.

Unfortunately the White Paper didn't promise an open process. As such it made it possible for you and your mentors to do your deals in secret and out of sight. It did, however, demand a body that met open criteria of operation when constituted and functioning. As NTIA pointed out to you, your bylaws have not created such an organization.

Jon Englund Returns Our Call

The closest those of us who are not sufficiently privileged to have your level of access have gotten to figuring out who is behind this is that Jon Englund of the Information Technology Association of America has cited his Association's support for what you are doing.

See: http://www.pathfinder.com/money/latest/press/BU/1998Oct07/736.html

I would like to ask Jon Englund: If the "cabal" is a group of ITAA members and folk from the GIP (like the IBMers John Patrick and Mike Nelson) which ITAA also administers, I hope they will step forward. If they do not step forward, I hope Congressman Bliley will send them subpeonas to appear before the Commerce Committee. ICANN must be accountable to something besides a shadow government of the biggest IT companies of the world.

Having said this, let me also add that Jon Englund just returned my phone call. We had a reasonable conversation. Jon assured me that there was "no ulterior motive from the Association or its members" other than "what was best for the internet." That ITAA represents "a large group of companies that has generally been supportive of the ICANN with some provisos..." When I asked: "well is ITAA one of those large groups to which Sims is referring?", he said that "ITAA had not said anything to suggest that if there are modifications that we would no longer be supportive of the process."

We talked for perhaps 10 minutes when Jon had to go to a conference call. A bit longer of a call would have been useful. Certainly, trade Associations are there to lobby and they are not used to having to do it in public. With the Internet ITAA will find increasing pressure to be more public. If the motives of Jon's Englund's members are as virtuous as he says they are, then it would seem reasonable to see fuller and more open disclosure by ITAA of whatever role that it is playing. Jon didn't know the answers to my three questions either. (Who chose Sims, who chose the Board, who is acting to block changes in by laws.)

Another Opinion from the Commercial World

The director of another association returned my call and commented as follows: He saw nothing in the NTIA letter to indicate any expectation what-so-ever that Schorr or Sims was expected to sit down with the BWG or ORSC. He believed that the letter called for the ICANN to get organized and for the ICANN BOARD to make some changes to the bylaws to satisfy NTIA's complaints. Internet mail lists, after all, weren't where the fate of the net would be decided.

Eric Weisberg of the Boston Working Group on October 24: This is to bring everyone up to date on what is happening.

It appears that Postel was the ICANN. Without him, ICANN must be recreated almost from scratch. This has caused a schizophrenic situation where the invitation to enter into negotiations went to ISI, which apparently has had very limited institutional participation in the process.

At any rate, Joe Sims purports to represent ISI and not ICANN, whose board, we are told, has not been seated and will not be involved. Schorr, btw, is out of town next week, and Sims just met with an ISI representative on Friday to discuss how to proceed. Thus, we have no knowledge as to the identity of the people who are actually making the decisions. Nor, do we have any indication that they actually have a plan or direction.

Sims has not approached the other parties, but has responded to e-mails and there have now been telephone exchanges with one of his associates setting up a tentative discussion between him and Karl on Monday. The conversations have been friendly and the need for openness of process is agreed to by all, though as yet is undefined. Further, there has yet to be any substantive discussion of how to proceed.

So Who Is Joe Sims?

We have identified Jon's inner circle of advisors (apart from the ITAG) who played the critical collaborating role in selecting the US members of ICANN Board. The 'mighty five,' are: Vint Cerf, Dave Farber, Mike Roberts, Scott Bradner and Larry Landweber. At least one from this inner circle played an important role in recruiting Jones and Day as Jon's pro bono law firm and Joe Sims as his attorney.

Jones, Day, Reavis and Pogue is one of the five largest law firms in the United States with over 1200 attorneys and one of the largest intellectual property practices in the world. According to a telecom policy knowledgeable source, Jones, Day has had many RBOCs as clients.

Joe Sims was born in Phoenix Arizona in February 1944. He was admitted to the bar in Arizona in 1970 and in Washington DC in 1978. In the Antitrust Division, U.S. Department of Justice he worked as Deputy Assistant Attorney General for Policy Planning and Legislation between 1975 and1977; and Deputy Assistant Attorney General for Regulated Industries and Foreign Commerce between 1977 and 1978. He joined Jones Day in 1978 where he has focused on antitrust and government regulation since then. He and Jeff LeVee of Los Angeles are members of the Technology Issues Practice of Jones, Day (TIP). Jeff had been assisting John Postel in Los Angeles. The stakes for all concerned are highlighted by the fact that it was Joe Sims in Washington who took the lead.

The following is a paraphrase of official information about the Technology Issues Practice of Jones, Day. The Technology Issues Practice of Jones, Day has been created to give the firm a head start in identifying and dealing with the legal issues surrounding emerging new technologies. It is made up of approximately 25 lawyers, from 12 of Jones Day's offices throughout the world. Members of the TIP tend to be partners and associates whose future careers have high stakes in the goals of this effort and who were selected for the passion of their interest in this area. The goal of the TIP is to serve as a means of expanding Jones Day's ability to deal with technology-related legal issues and technology companies.

I am told that what Joe has done for Jones, Day is common practice in many law firms. If you are going to do pro-bono work for someone, you might as well do it in an area of critical interest to the firm. So while both the interests involved and the powerhouse of resources available to Joe Sims are by no means unusual - given the stakes, I have spent some time digging this information out because it is certainly relevant to those who are interested in evaluating some of the possible motives for Sims involvement.

One legally knowledgeable observer offered me the following evaluation. "At this point Sims is left high and dry. His client was Postel. With Postel gone, he has no relationship with anyone, and Jon's and Joe's ICANN has no special standing whatsoever."

While the mighty five may not have intended for it to turn out this way, Sims and his firm have gained enormous potential power and influence in the Internet in writing a set of by-laws that create an unaccountable and unsueable shadow government for the Internet. The major claim to legitimacy that the ICANN draft has is that it was allegedly put together under the guidance and support of Jon Postel.

The Inner Circle and the Closed Process

It is tragic that Jon, who has been unfairly abused during this process, has just passed away. In 1991 Jon's aortic valve was replaced. Recently the valve began to fail. It was leaking. Information about when the replacement occurred is conflicting. On the basis of assertions by those with direct knowledge it was not later than Sunday the 5th and may have been earler. On October 8th there was a mail list assertion that he had had surgery. We recieved confirmation of this from those with direct knowledge on October 11. According to these people, Jon was on his way to recovery when an infection developed. The physicians had to intervene again to deal with the infection which they successfully did. Then from an October 13 conversation with Ira Magaziner we learned that he was on his way to recovery and expected to be able to retain the CTO position." (ISI issued on October 14 a press release about the ICANN proposal that mentioned Jon's surgery only at the end and said nothing about the infection.)

We mention our knowledge in this degree of detail only because of our concern about the tight lid that was kept on news of his condition. Right up to the announcement of his death on the morning of October 17th, the assertion by all those with direct knowledge of his condition, whom we were able to contact, was that he would recover and assume the duties of CTO. Given what had occurred to Jon, it seemed to us that these assertions would be very unlikely to come true. But we realized, if this were the public position of those supporting the ICANN proposal, it would be easier for the government to give it the nod. It was pointed out to us that a tight lid was being kept on things at the wishes of Jon's family and, given recent vicious attacks on the privacy of public officials, we felt torn between a feeling that we should comply and a sense of profound unease that the motives for asking for silence were something beyond a concern for Jon's privacy.

The sad point is that Jon was being used by the forces surrounding him. He deserves far better than the treatment he has gotten. Any shred of legitimacy in the ICANN proposal is founded on its being built on Jon's wishes and on the assumption that he plays a pivotal role. Now that he is unable to do this, the idea of turning the future of the Internet over to an unaccountable board, structured by Joe Sims to be as immune from suit as possible and with Joe Sims as the likely legal counsel becomes appalling. An observer with direct knowledge of the negotiations states that what has been crafted is based 80% on Sims' input, 15% on that of Mike Weinberg (a second Jones Day attorney in Austin, Texas. Weinberg kept the authoritative text and did the drafting at the instruction of Sims.) and 5% on that of Jon Postel.

Jon's Testimony

Jon's most recent testimony is found at http://www.house.gov/science/postel_10-07.htm

"My name is Jon Postel. . . . I also administer the Internet Assigned Names Authority, . . . At this point, it might be useful to speak to the charge that some have made that IANA, by directly offering its thoughts and suggestions to the Internet community and inviting comments on them, was somehow subverting a true public process. Most of this criticism comes from a small number of loud voices, including a small minority of those who were involved in one of the consensus-building efforts that took place over the last several months, the International Forum on the White Paper. Their complaint, as I understand it, is that anything that was done outside of the IFWP process is necessarily illegitimate, because the IFWP was the only legitimate consensus-building forum. Since IANA, in addition to participating in every IFWP meeting, also produced its own multiple draft documents, posted them publicly and sought comments on them from anyone, these critics argue that the IANA effort was an attempt to undercut the only "true" public process."

"It is hardly surprising that the IFWP did not produce any specific proposals or documents. Corporate documents, like football game plans, are not easily drafted in a stadium, with thousands of very interested fans participating, each with their own red pencil, trying to reach a consensus on every word. Group discussion is very valuable; group drafting is less productive. The IFWP served its intended purpose, and it served it well. Most of those who organized and participated in the IFWP process recognize and accept this fact, and indeed most are strong supporters of the ICANN proposal submitted to the Commerce Department. But a small minority, for whatever reason, have chosen not just to disagree with the proposal, which of course is their right, but also to characterize its very existence as evidence of some global conspiracy to prevent a truly open process. This is disappointing, but perhaps it is inevitable that there will be a small fringe of extreme views when the subject is something that touches (at least potentially) every person on the planet."

The Mighty Five & Sims Made Postel a Figurehead Without Meaningful Power

From our knowledge, we believe that Postel would not have knowingly made the highly partisan statements that were in his testimony. These were statements that, if they could not have been objectively shown to have been false, could be shown to have been made in the face of substantial opinion that reality was precisely the opposite of what he alleged. To us they read like the closing arguments of Joe Sims to the jury of Ira Magaziner - saying, in the face of substantial evidence to the contrary: mission accomplished - consensus demonstrated - give us the reigns of power.

Also we would ask whether Jon would have turned in a document saying that he directs the Internet Assigned NAMES Authority? Several prominent figures have told us that when they testify, their attorneys often write the testimony for them. Readers would do well to remember that Jon Postel never before had the services of his own attorney. It is very likely that that Sims took on the task and that given his medical problems, Jon may never have read the testimony that was turned in under his name.

On October 15 on the IFWP list, Einar Stefferud added: Those remarks do not, to me, sound like what Jon would say in such a situation. They do however sound like what someone else in the ICANN camp would say. But, all this is idle speculation. The only key data point that will help us to understand what is going on is to know when Jon became ill and went into the hospital. In any case, we should all wish him a speedy and full recovery, and at the same time, recognize that we should be organizing the NEWCO around principles of organization and not around mortals.

ICANN without Jon Postel

Those supporting ICANN need to stop and think what they are getting with that support. They have assumed it was Jon Postel. Unfortunately this is not now the case. What they get is a "black box" drafted by Joe Sims and a board selected by the Larry Landweber, Dave Farber, Vint Cerf, Mike Roberts and Scott Bradner. These folk - the Mighty Five - are basically followers of the IAHC and MOUvement and the European POC/CORE public trust domain name model. By the time I publish this, the POC/CORE folk will have held a meeting in Spain to anoint themselves as the new Domain names support organization.

Given what I knew about the seriousness of Jon's medical condition I expressed doubt last week that he would be able to fill the CTO role. In response to my concern about this issue Vint Cerf responded on 10/14/98: "There is enough technical talent in the Internet Community that the ICANN proposal can work, either with a single person in the CTO role or an advisory group (such as the ITAG). Jon has endured unfair criticism in the midst of his serious health crisis; I hope you will try to make right the wrongs done to him."

Vint is clearly so committed to what he has won in ICANN and its Board that he feels that it is viable with or without Jon.

The Mighty Five Respond

Now the only public call for board nominees that I can remember was in mid September when word was put out on mail lists to send nominations either to IANA or to Don Telage of NSI. Conversations with my sources showed that input to ICANN had come from varied sources -- even Gabe Batista and Don Telage had been allowed to think that they could give Larry Landweber suggestions. Nevertheless my sources are in basic agreement on the identity of the "mighty five" as the principal agents that ran the board selection process for Joe Sims. Therefore on October 13 I wrote to all five:

"I have obtained verification of your role as IANA's principal agents in the selection of the US members of the ICANN board and in the on-going process of finding an interim president for ICANN. Of course you are, as far as I can tell, perfectly entitled to do this. What I object to is your doing it NOT in public. And in such a way that it is not clear whether Ira does or does not know what you are doing. I am working on an extensive revision of materials on this subject for publication in my December issue next week. I intend to make your roles public there and do so as objectively as possible."

"I am also striving to find out more about Jon's capability to perform his duties. I understand that he had surgery to repair a leaky aortic valve implant from several years ago and that not long after the surgery, an infection developed which was quite serious but now seems to have been brought under control. On the one hand, I am told that he is being deemed quite capable of carrying on his duties as ICANN CTO and as the spirit and 'glue' that may be expected to give some cohesiveness and direction to the new organization. On the other hand I have also heard some second hand opinions that judge this outcome unlikely. I ask you: If he is unable to perform his dutuies - who will?"

"I am beginning to realize that his health may have played a role in his ability work with his attorneys and produce drafts that would be better respected than what was put out in his name and that therefore one should be careful about throwing direct blame at him for his apparently Olympian attitude of detachment this summer. And so I certainly wish him well."

"But the fact of the matter is that if Jon cannot fully participate in the day to day development of ICANN, his proposal looses a huge amount of legitimacy since you and Jon have chosen the board members from the generally not terribly internet clueful and since the proposed interim president is not expected to be a significant internet figure."

"This then is a major issue regarding which I request your assistance in coming to a sound judgement on. Namely how can we possibly expect that after such serious medical problems that Jon can jump back in to the fray? And especially that he do so immediately -- which is critical. If he cannot fully function during this critical time what do you propose to do?"

"If there is any shred of doubt about his ability to function NOW, then, in my humble opinion, public knowledge of your roles becomes even more important. Finally another very critical question. When you incorporated ICANN, did you do so on your own without the knowledge or blessing of Ira? Ira had promised that the selection of the board would be an open process. However many, including myself, are very concerned that the process has in fact been predetermined."

On October 14th Vint Cerf replied: There was a public call for suggestions for board members and I responded along with many others. That's it. I didn't participate in the final selections, etc. None of the people I suggested were named to the board.

There is enough technical talent in the Internet Community that the ICANN proposal can work, either with a single person in the CTO role or an advisory group (such as the ITAG).

Jon has endured unfair criticism in the midst of his serious health crisis; I hope you will try to make right the wrongs done to him.

vint

On the 14th Scott Bradner added: I'm in exactly the same position as Vint - I was asked for names, suggested some and commented on others - like Vint, none of the names I suggested were on the final list (and counter to what you wrote once before) I never showed any list of names to anyone -I never had a written list to show. [Editor's Note: I checked again with my source who asserted that Scott had certainly said he "knew" the identities of the folk on the final list. This when the rest of us didn't even know that there was a list and that Larry Landweber was the list keeper.]

Scott

Mike Roberts October 14th response: Gordon - it is no secret that I have represented EDUCAUSE and its members over the course of the summer in matters related to the white paper. I helped organize and fund IFWP and participated in its Steering Committee as long as that was useful. I moderated a panel in Geneva, I drafted policy positions for EDUCAUSE management, I have had dozens and dozens of bilateral and multilateral conversations about every aspect of the topic, including conversations about the desirable characteristics of Board members, interim and permanent, and who might fulfill those characteristics best. If that makes me guilty as charged, then I plead guilty.

When Larry Landweber responded, I replied to his response as follows: "Larry, is this the on record reply that you wish me to print? Jon is a public figure with the weight of great expectations on his shoulders. The exercise of due diligence for the creation of an ICANN that is not subject to capture and control by persons operating outside the confines public knowledge demands that the public be aware of the issue of whether or not Jon can perform the functions for which you have created ICANN."

"Or on the other hand do you think his condition should be kept secret and if so for how long? There could have been and should have been the press conference yesterday [about Jon's health]. . . . . I understand from multiple sources that you collected the names for the board and coordinated the process of contacts, discussions etc."

Larry replied stating that his initial response was off record. He did not challenge my assertion about his role as coordinator of the selection process.

Dave Farber offered an innocuous statement on the 16th. And in a later message added, as an afterthought, that his reply was off record. Neither he nor any of the remaining four of the mighty five challenged my general description of the process.

Part One

Creation of the New IANA: What Happened?

The June 5, 1998 White Paper was very cagey about what was promised. Its guiding principles were: stability; competition; private, bottom-up coordination; and representation. (See sidebar one). Nowhere did the White Paper itself promise an open process. During the first 30 days after the Paper's release this important detail became thoroughly lost.

The first step on the road to the present debacle came on June 5th with the NTIA press release titled "COMMERCE DEPARTMENT RELEASES POLICY STATEMENT ON THE INTERNET DOMAIN NAME SYSTEM." In that release, Becky Burr said:

" . . . the policy statement describes a process whereby a new, not-for-profit corporation formed by the private sector would assume various responsibilities for DNS administration that are now performed by or on behalf of the U.S. Government, or by third parties under agreements with the U.S. Government. We invite Internet stakeholders from around the world to work together to form this new entity." She also said: "We are looking for a globally and functionally representative organization, operated on the basis of sound and transparent processes that protect against capture by self-interested factions, and that provides robust, professional management. The new entity's processes need to be fair, open, and pro-competitive. And the new entity needs to have a mechanism for evolving to reflect changes in the constituency of Internet stakeholders."

So, on the one hand, the government said what it wanted: a stable, competitive, that should as far as possible reflect the bottom-up governance that has characterized development of the Internet to date and that should have diverse representation from around the globe on its board. The White Paper talked of an entity with open processes. It did not however talk about how this entity would be formed. Either by inadvertence or design, it left one of the very most critical questions untouched. Now that we are seeing the chaotic heavy-handed conclusion of events, it has become clear that the process issues were left out by design. One reasonable hypothesis is that Ira Magaziner, given his apparent willingness to endorse outcomes that were not part of any open process, remained interested only in the outcome. Unfortunately this interest only in the result resulted in false expectations that have sowed much distrust. In the absence of any further efforts to redeem himself, it is reasonable to assume that his intentions were to serve interests that could not withstand the scrutiny of an open process motivated by any standards of public interest. [Not surprisingly he denied this interpretation in my October 15th interview. And I fervently hope that as I finish writing this on Sunday the 18th, he is preparing to take redemptive action on Monday.]

In her October 12 comments to NTIA Laina Raveendran Greene, a well respected attorney with many positions of responsibility in the Asia Pacific region, got it exactly right: TRULY AN OPEN PROCESS OR NOT?- THAT IS THE REAL QUESTION. Laina went on to say that it was "weaknesses of the White Paper which merely caused much of the problems."

She added: "You had from March 1998 to make these pronouncements, and yet you waited till June 5th to make the pronouncements and then gave industry only the summer to come up with solutions. [Editor: What Laina likely does not realize is that until late May, according to inside sources, it looked like Magaziner was going to impose a solution.]

Liana continued: Imagine how many of us had to make changes to our summer plans and to support you in the attempt to do global industry self-regulation. It now appears to be a un sincere attempt to get true global participation, but rather to use the process to support any proposals you may choose to adopt. Rather than give industry more time, and ensure global input, you seem to have opted in favor of US Congressional Hearings and closed door negotiations. All this is VERY disturbing indeed.

The White Paper was weak in that it merely pronounced that private sector was going to create the new entity. Who this private sector was, how they were to form this entity, how you would recognize the entity etc were never stated. This left a black hole, and since the announcement of the White Paper, many entities began the self-proclaim themselves as part of this effort, and announced meetings. That is why, it was very reassuring to have the IFWP process as a means to coordinate these various efforts, and the US government, IANA, NSI's seeming support of this process, made people rally their effort behind it at their own expense. It was only after it became clear that perhaps NSI and IANA with the US government were the real players, that the IFWP process broke down and people began positioning themselves. I am glad that there are at least some proposals on the table from people who have been involved in that process.

By not having a clear procedure in place, you have actually given it the opposite effect of due process, not to mention wasting everyone else's time and money. I do hope the US government will take cognizance of their own mistakes."

We are in complete agreement with Liana. What follows is our attempt, using many sources who would talk only on condition of anonymity, to piece together what has happened since the spring of this year. While we are reluctant to devote too much space to this subject we think it important to put our knowledge on record because we are now about to get the IANA corporation whose decisions will affect the most critical aspects of the Internet's operation. We believe a clear understanding of what happened will be useful to those who must now began to plan operations for the new era. Readers should note that from here on I shall abandon the use of the editorial "we".

Setting False Expectations

In response to the White Paper's comments, a broad based and geographically diverse group of Internet stakeholders came together at the end of June under the IFWP banner (The International Forum on the White Paper). A group calling itself the GIAW announced plans for a meeting to begin work on shaping the new corporation. Domain Name Rights Coalition Chair Kathy Klieman in mid- June broadened the number of people involved and obtained the agreement of her old law school professor Tamar Frankel to act as a facilitator in a series of meetings during the summer designed to establish the new IANA corporation by a process of consensus building. At the end of June Barbara Dooley of the CIX moved into and took over what Kathy had started renaming it the International Forum on the White Paper (IFWP).

Ira Magaziner kicked off the first Reston, Virginia meeting, endorsed the open IFWP process, and left the impression that he gave its full blessing to IFWP efforts. All though the White Paper didn't promise an open process, Ira raised expectations by giving everyone there the impression that he was fully committed to that. When at the beginning of September the IFWP process broke down and everyone went behind closed doors trust in Magaziner evaporated.

Jon Postel Gets a Lawyer

After Jon Postel's redirection of the root servers, in early February of 1998 some of Jon's friends decided he needed a lawyer of his own. For the attorney at USC was there to serve USC not Jon. Given the magnitude of the task, a pro bono attorney was necessary. Friends asked friends and, before long the law firm of Jones, Day, Reavis and Pogue percolated to the top of the list. This is a major law firm wanting to get into the internet business. Mike and especially Joe have been Jon's lawyers since the spring. An opportunity to draft the articles and by laws for ICANN was one of the prime points of interest that would propel Weinberg and Sims and Jones, Day, Reavis and Pogue into the heart of the Internet world.

Unfortunately for all concerned what made the internet the internet was a learning experience for Joe and Jon, as an engineer, was more interested in making the protocols run on time than arguing with his attorney. As someone rather intimately involved in the process has told me, the by-laws have taken the form that they have because Sims and Weinberg decided to do the lawyerly thing and write them from the point of view of making it as difficult as possible to sue the new organization. Another source who was closely involved said his perception what was motivating Sims was his desire to cut down on the hassle factor and make it easier for ICANN to function without outside interference.

Board members with no accountability except to themselves? The harder to sue. No provision for freedom of speech or open expression? The harder to sue. Add fiscal constraints in the by laws? You have to be kidding. If they were there, someone could sue alleging improper enforcement. Jon Postel, feeling put upon from many quarters, apparently lacked the skills and motivation necessary to intervene. Very likely he simply couldn't conceive that he had any need to explain himself to anyone besides his immediate technical constituency which simply wished these alien political and legal processes would vanish.

Persons familiar with events have told me that as far as they can tell Sims -- a Washington attorney to begin with -- introduced himself to the key players in DC to get a sense of the lay of the landscape. To cover himself Sims would, of course, run his drafts by Magaziner. In the meantime, he built a small tight, "trust-me," insiders controlled organization crafted to be as impervious to outside challenge as possible. While sources tell me that Jon definitely stayed very involved in the selection of the Board, Sims gained enormous power by walking into what was a power vacuum -- and what with Postel's passing is now even more of a vacuum.

The September 98 NSI/IANA Negotiations

After the CIX and AIM and ISOC announced the termination of the IFWP process at the end of August it seemed that IANA and ISOC, which had not given an inch (see Larry Lessig's Standard article) had won. Then suddenly, after Ira, in an interview, had complained to me that he wanted IANA and NSI at the negotiating table ASAP, IANA and NSI found themselves in face-to-face talks in early September.

A joint Draft 4 resulted and was published on September 17th. For the first time those of us who were not followers of IANA and who had been angered by Jon's apparent unwillingness to listen to anyone but his two attorneys and small inner circle of advisers had reason to hope that the White House would insist that the consensus points of the IFWP meetings be respected.

While Jon's attorneys had ignored them, NSI had drafted a set of bylaws that were admired by those of us not happy with the IANA's detached position, and now it seemed that NSI had gained an opportunity to negotiate and force Postel into a more open and democratic position. The IANA - NSI Draft 4 was admired. It was the only draft that paid serious attention to the consensus points of the IFWP meetings -- meetings which many people took seriously thanks to Ira's endorsement of them.

On Monday September 21st Ira Magaziner, in an interview with me, said that progress was being made but added that the two sides had to keep at the table and produce one more draft before the requisite consensus would be there. However, during the week of the 21st the Australian government and EC exploded. (The Australians whose anger had been less well known were allegedly having fits because of Adam Todd's rogue Australian root servers.)

Day after day went by without the publication of a new draft. Don Telage was trying to handle both the negotiations with the IANA and DOC. I was given the impression that negotiations went on during the weekend of the 26 and 27th. Then in the late evening of the 28th IANA dropped a bomb shell and put out draft five alone with clauses (d) and (e) of Section 4: Powers of the by laws removed. These clauses, in the opinion of some, were critical to NSI's interests but also protected the interests of other (smaller) U.S. players such as IO Designs and Iperdome.

Postel, in his solo introduction to Draft Five, said: "NSI is actively engaged in the final negotiations with the United States Government over the transition of its contractual relationship with the United States Government. That is, understandably, its highest priority at the moment. Given the shortness of time, it as not possible to wait for the conclusion of those negotiations to release these new drafts. Many of the changes contained in these new drafts have been discussed with NSI, as they have been with many other stakeholders, but NSI bears no responsibility for these changes."

I and others accused Jon of hi-jacking the process, and of taking out what NSI had fought for when NSI's back was turned. Joe Sim's, Postel's attorney, would only tell me my conclusions were erroneous. Sims it turned out was correct. I have since ascertained that Sims and Postel were ordered to remove clauses (d) and (e). I state this unequivocally. What I infer from this information is that since NSI had not yet been sufficiently compliant with the wishes of DOC and Becky Burr, the US government retaliated against Telage and NSI by telling Sims to go forward with draft five as an IANA-only product.

If this did not happen, the only other rational possibility is that Jon and his lawyers went ahead and broke with NSI on their own initiative without telling Ira. One source close to the events insisted to us that our second hypothesis is correct and that Sims very likely put out draft 5 on his own. "Operating in the DC environment often involves showing a little 'muscle' just to let the other sides know you aren't afraid."

In any event, when the open process was followed, clause (d) and (e) were put in the document. When foreign governments and inveterate NSI haters screamed, any last shred of openness disappeared. What the main stream press failed to note was that ripping out (d) and (e) also deprived other (smaller) U.S. entrepreneurs such as IO Design's .web and Iperdome's .per of any standing.

I asked both to comment:

Christopher Ambler, founder of Image Online Design has pointed out that "removing IV-1(e), the section that many have called "NSI protection" also removes any protection that Image Online Design and other prospective registries (like Iperdome and CORE, for example) might have, and tramples the rights that Ira assured would be there."

Ambler continued that he felt that "IV-1(e) being removed now clears the way for the ICANN (Internet Corporation for Assigned Names and Numbers) Board (a board about which we know nothing, and the selection process of which is still undefined) to make arbitrary decisions about how new TLDs will be created without taking into account existing work. IANA gave the direction to a number of entities, including Image Online Design and CORE, to create systems and infrastructure for new registries. Without IV-1(e), the ICANN board need not take this into account, and can, instead, choose to ignore these existing entities. This can cause direct damage to these entities, which have been relying on the original directives of IANA since 1995. For a system that is supposed to promote competition and fairness, my view is that it seems to have none of either."

Jay Fenello, President of Iperdome added: "I concur with Chris. In addition, the failure of the Clinton administration to abide by the goals as stated in the White Paper will surely result in Congressional intervention. At this pace, we'll be lucky if we ever see new TLDs -- or complete this transition process."

White House Spin Picks up Speed

At 6:15 PM Eastern time, September 30 News.com posted an article by- lined by Courtney Macavinta. "We expect to receive the [IANA] proposal tomorrow for the new organization. We'll post that for comment for a week," Magaziner said today. "Then we will consult with other governments in that period. If there is just one proposal, we'll negotiate recognition of that organization and then we will begin transitioning to it," he added.

Now I find this statement quite fascinating. "If there is just one proposal" It wins he says. Ira had every reason to understand that there were three proposals. The first is the officially blessed proposal from Jones and Day - that is to say draft 5 of September 28, 1998. The second proposal is draft four the NSI/IANA draft - the one that many of those who could tolerate NSI liked. This draft was removed from the IANA web page when it was disqualified by the alleged "open" process. To my knowledge NSI has never disavowed it. The third draft is the Boston Working Group Draft, a final version of which was published on the NTIA web pages on October 1. This draft prefers the NSI IANA draft to Postel Draft 5. However it feels that it is too favorable to NSI in some ways.

On September 30 Ira presumably considers the NSI/IANA draft to be dead. But Ira has no right to consider the Boston Working Group draft dead. The drafters say that they have informed Ira that they wish him to recognize its existence. The irony is that the Boston draft is the product of the only fully open process had occurred up to this summer date.

ORSC Steps Forward

Hindsight indicates that what Ira presumably meant is not just draft bylaws but a full proposal from an incorporated organization behind a set of by laws which indicated to the Department of Commerce that it is legally prepared to accept the transfer of the governments assets. After seeing what ISI handed into Commerce on October 1 on behalf of Postel and ICANN, the Open Root Server Confederation (ORSC) realized the unstated rules that ICANN was playing by. As a result on October 8th it handed in its own set of bylaws (a revison of the Boston Working Group's bylaws) and proposal to Commerce to establish and run its own ICANN board of trustees. Ira now (October 14) clearly has two full fledged proposals to choose from. To my pleasant surprise in talking with him on October 15, I found out he was seriously interested in ORSC. Given the events of the 16 and 17th he has even more reason to grasp the life raft ORSC threw him.

First Signs of the Board Emerge

Courtney Macavinta wrote on October 1: "The ICANN board is supposed to be neutral and include people who have not been involved in the ongoing heated debate over the future of the domain name system. There will be four members from the Americas, three from Europe, two from Asia, and a representative-at-large." She went on to list seven names, two of which were actually chosen for the final board when it appeared two days later.

Ira had told me on September 21st that he expected to see a slate of board members floated by the 23rd when I published my November issue. According to him, they would be nominees only. The purpose would be to find out whether there was consensus for them. But this consensus never materialized.

What was pervasive was a deep distrust of board members that Postel was felt to have chosen, and a fear that the names would be presented as a fait accompli. This fear was heightened when EFF issued a press release saying that one of its board members had agreed to serve on the new IANA board. This announcement astounded those of use who had been assured that NO invitations had been made. However at the end of September, a POC/CORE supporter met a colleague on the east coast and told the colleague that a board with a heavy international representation had been chosen sometime ago.

Since I wrote the above three paragraphs, I found out about and have documented the role of the 'mighty five'. The Postel/Sims testimony of October 7 explains: "And the fact is that we had a deadline to meet, and an organization to create; we could not wait for someone to invent something new, or to convince the world that it would work. So we did the best we could under the circumstances: we sought out highly qualified individuals around the world and tried to convince them to accept this unpaid post where they could participate in very contentious debates over very complex issues with highly partisan advocates, and once they had done their job they could not continue on as board members (in order to avoid even the hint of self-dealing). Not surprisingly, there was not a surfeit of volunteers for this job description, but after lots of hard work and arm-twisting by lots of people, we were able to convince nine exceptionally qualified people to volunteer for this important but, I'm sorry to say, almost surely thankless job." The testimony offers the following lame explanation: "We of course recognize that this process is easily criticized as undemocratic and closed. But the simple fact is that neither we nor anyone else to our knowledge was able to devise any other plan for selection of the interim (what is called in the ICANN proposal the "Initial") board that was workable and acceptable to the broad majority of Internet stakeholders." http://www.house.gov/science/postel_10-07.htm

This remember, the US Department of Commerce alleges, is an open process. I find it to be a fraud.

Chosing the New IANA Board - One Point of View

As the summer went by various Internet old-boys working through Jon's ITAG group discussed what steps to take next. Then, toward the end of August Dave Farber, Scott Bradner, Vint Cerf, Larry Landweber and Mike Roberts 'self-selected' in order to choose the US representatives to the ICANN board. Jon's ITAG (IANA Transition Advisory Group made its suggestions.) It is highly unfortunate that they worked behind closed doors. Jon, as IANA incumbent, certainly had an edge in the selection process and they as Jon's helpers exerted in private a major influence over the future development of the Internet during a period in time where apparently with the governments blessing no one else knew what an inside track they had. By September with Jon's medical problems mounting, those close to the process believe that the Board selection mechanism was now resting mainly on the shoulders of Joe Sims and Larry Landweber.

However, Ira Magaziner, on behalf of the US government, was almost certainly aware of this group of Sims and the 'mighty five'. Perhaps we should call them the mighty six? Foreign "governments" were told that they should decide whom they wanted. In the case of the three European nominees, it was the EC who decided and whose first nominees were rejected -- delaying the appearance of the final list. In the case of Japan, it was not the government who chose Jun Murai, but rather the Ministry of Posts, Telephones and Telegraph (MPTT). Japan got a seat as the largest Internet user in Asia. Australia a seat as the second largest.

Presumably, Ira as the official agent of the US government set the policy. However, the process has been so well hidden that I cannot be sure. Ira may well have told the foreign governments to communicate directly with Sims. I remember that the leaked email that I published was from the EC's Christopher Wilkinson. In the email Wilkinson was complaining about the contents of Draft 4. The email was sent to Joe Sims and not to Ira. With Larry Landweber, Vint Cerf, Mike Roberts, Dave Farber and Scott Bradner as the self-selected board nominating and screening mechanism, Ira could afford to sit back, pretend openness and take the high road so that the mighty six "after lots of hard work and arm-twisting" could claim success.

Collapse of IFWP Process

Think back to the sudden collapse of the IFWP process at the beginning of September including, the otherwise inexplicable, abandonment by Barbara Dooley and the CIX and then Sernowitz and AIM following Barb's lead? In his interview with me the CIX board member made it clear that the only way CIX could "keep its seat at the table" was to do what it did. Did the 'self selected' board chosers invited CIX to join them and made the ticket of admission the abandonment of the Berkmann Center plans for a wrap up meeting. A natural move for these "fixers" having as they did no faith in the viability of an open meeting.

An authoritative spokesperson for the CIX responded: "CIX was never offered a Board seat and we wouldn't have thought it was appropriate anyway. We submitted names and suggested other associations, for example CABASE and APIA submit names.

There were a number of factors which determined CIX's position to support an evolution of the IANA 3.0 draft. The Steering Committee process was broken and not working from our perspective. We don't believe "group" drafting processes work--since part of CIX's core expertise is reviewing and drafting legislative language and interpreting and pleading regulatory language, we have some experience in this. We saw no fair, open, transparent way for the Berkman Center to decide who should be admitted to a drafting/negotiating session. It was our judgement that if IANA chose not to attend such a meeting in a negotiating capacity, which appeared likely, the meeting would result in a division that perhaps could only be breached by USG or Congressional intervention, which we did not want. CIX believed that by giving feedback into the IANA draft and withholding endorsement until we saw the changes we needed we could best represent our members' interests.

It seems that there are three classes of internet decision makers. First, the good old boys who have manipulated ICANN into existence. Second, a more peripheral circle of participants like ORSC and the BWG who were foolish enough to take Ira and Becky at their word and played as though the process was open when in fact, unless Ira is going to have a last minute change of heart, it was closed. Third, the remainder of the internet using public.

Selecting ICANN's President

According to a representative of the Mighty Five the process of choosing a one-year interim president for ICANN is underway right now. It is being done in private by the same group that chose the board. The task of the initial president will be to establish and fund ICANN; and to set up procedures for the Board's approval for the selection of the first permanent President. All very neat and tidy and all done, according to Ira Magaziner, without his sanction. For as he pointed out in an October 15 interview, the interim Board is supposed to pick the interim president after it is seated.

Summary: Does What Has Been Accomplished Depend Jon Postel's Personal Credibility?

The process so far has been nothing to be proud of. It has created an organization where many of the allies of the IAHC process have skillfully manipulated the situation so that they working with Jon and his two attorneys have been able to pick the key members of the interim board and will likely pick the interim president. But as Jay Fenello of Iperdome pointed out: "Several weeks ago, the IFWP process broke down as many of the original supporters decided to negotiate directly with the IANA. [See article in our November issue.] The result was the ICANN draft, a draft that is in our opinion, deficient in the following ways:

- The draft was finalized behind closed doors. - The draft does not include many of the consensus points from the IFWP process. - The interim board suggested by the draft was presented without any open nomination process or discussion. - It fails to meet Ira Magaziner's mandate of accountability, as the ICANN board is only accountable to itself. - It fails to meet the terms as stated by Becky Burr, specifically the desire for sound and transparent processes, protection against capture, and fair, open and pro-competitive processes."

The ICANN edifice to which the White House must decide whether to make an award has been created by Jon working with two non internet savvy corporate attorneys and five key old boys from the IAHC MOUvement days. The mighty five has kept its role hidden. And has created an interim board of successful business people with little internet knowledge to run the organization. They are also about to pick a interim and care taker president. Jon Postel's ACTIVE PRESENCE in the establishment of ICANN and its initial meetings was really the only thing that can give it a shred of legitimacy. The tragedy is that he is no longer with us.

PART TWO: THE NSI PROBLEM

Consider Some of the Events that Preceded the Summer

Before things reached the crisis point of late September 1998 NSI had made a detailed technical response on the subject of shared databases to the Commerce department NOI of July on August 18, 1997. It is to be found at http://www.netsol.com/policy/noi.html

And on March 23, 1998 in NSI's response to the Green Paper http://www.netsol.com/policy/rfc32398.html it has the following comments on government desired outcomes.:

D. Qualified Competitive Registrars The Green Paper proposes that each TLD registry should be equally accessible to any qualified registrar, so that registrants may choose their registrar competitively on the basis of price and service. Any entity will be permitted to provide registrar services as long as it meets the basic technical, managerial, and site requirements in Appendix 1 of the Green Paper. Registrars will be allowed to register customers into any TLD for which the customer satisfies the eligibility rules, if any.

NSI supports this approach to competition in registration services. As promised, NSI is currently making the technical preparations to allow additional competitive registrars in the .COM, .NET and .ORG registries. These activities, which will be basis for discussions with the U. S. government, as specified in the Green Paper, include: the specification and development of an open interface between registrar and registry; the physical and electronic separation of NSI registration systems into registry and registrar subsystems to assure equal access by all registrars; the development of operational procedures between registry and registrars; and an investigation of the legal issues associated with registrar and registry operations.

The NSI Terms Sheet

For reasons that are still not satisfactorily clear to us, the Department of Commerce wasn't interested in discussing any of this with NSI. Instead it waited until the second week of July to sit down with NSI. When the meeting occurred, NSI was handed a 'terms sheet'. The terms essentially informed NSI that it would be treated as a LEC and forced to unbundle its services and price them to competitors at the same prices as to itself. The only problem was that, unlike the CLEC world where CLEC attorneys have to negotiate endlessly with LEC attorneys, terms and conditions of interconnection, NSI software systems would have to be given to the US government with full warranties that the software would work when placed on their competitor's computers. What may never have occurred to Becky and Ira -- as they are imposing their public authority, top down model on the Internet -- is that the very reason unbundling was forced on the RBOCs was that the RBOCs are big enough so that the alleged competitive solution would not seriously effect them. NSI does not have the financial depth to survive if it were forced to endure the bizarre solution of being required to warranty and maintain on behalf of its competitors the systems that it developed.

The White Paper called for "negotiations", which normally implies an element of discussion involving some exchange of ideas.. NSI returned comments on the "terms" to NTIA which said, "No thank you. The terms are NOT NEGOTIABLE" and returned the paperwork to NSI with the instructions to dismember the 80% of its business represented by the .com, .org and .net registries. Ira asserted, in a July interview with me, that the government's aim was NOT to deprive NSI of .com or put it out of business but only out to ensure that it share .com registrations. What I am told happened does not seem to me to be consonant with that assurance. When NTIA refused to negotiate about any of the terms, NSI decided that the best way it could maintain its fiduciary responsibility to its stock holders was to simply refuse to sign the extension of the cooperative agreement that was being demanded of it. Come September 30 it figured that the cooperative agreement would expire.

As far as I know there has never been a situation where the holder of a cooperative agreement was forced by the US government to continue the cooperative agreement against its will. Only in a case of formal "takings" under the doctrine of "eminent domain" (which implies an overriding government interest that would appear inconsistent with the announced White House intent to disengage from involvement) can the government compel the use of private property for a public purpose and in such cases compensation must be paid.

Consequently, NSI reasoned that if it simply declined NTIA's offer, it could probably survive. After all, if NSI did not chose to cooperate, could the Department of Commerce take over its database and go on to register and bill for 140,000 new registrations per month? Not likely. Meanwhile the government rested its case on the belief that since, during the cooperative agreement NSI had always accepted the authority of the US gov't as exercised by the NSF, all it needed to do was tell NSI that the gov't was now exercising its authority that NSI dismantle 80% of its business and that it expected obedience.

Things dragged on until Monday September 28 when something new happened. When NSI was unwilling to accept what looked to be a demand for nationalization by Magaziner and Burr, the DOC and DOJ walked out of the room, left NSI cooling its heels for 2 hours and walked back in handing NSI an ultimatum. NSI still didn't sign. Therefore the crisis session spilled over into Tuesday and by Tuesday afternoon Magaziner had used some kind of "club" such that, rather let the Coopertative Agreement (CA) expire, NSI signed a one week extension, an act that most of it friends considered unwise and an action that its enemies considered tantamount to suicide if it refused. NSI did not refuse. One wonders what weapon the White House and NTIA hung over NSI's head? Of course it's also possible that SAIC (a major government contractor) was willing for NSI to be eviscerated to maintain their "good relationship" with the United States Government.

As the Yom Kippur holiday began everyone agreed that if NSI doesn't sign and accept the government's "nationalization" of the 80% of NSI's business represented by .com, .org and .net represented by the non negotiable "terms" that the two parties will wind up in court. This is an action that would certainly destabilize the Internet. The question is what is NTIA's motivation? Why would the White House be willing to take the internet to the brink for the sole purpose of ending the "NSI monopoly" when it is effectively ended already at the registrar level and other companies are selling thousands of .coms per month? The response that one hears is a doctrinaire: "they still have a financial advantage - one which we simply cannot permit." And besides.... why the secrecy? What are NTIA and the White House hiding? After I started revealing what they were doing to NSI, I have never heard so many doors slam in my face so quickly. Someone has been made very afraid. Fear not withstanding, on October 6, Magaziner and Burr successfully bent NSI to their will and forced their signature on an unprecedented two year extension of the cooperative agreement. (See text box on the next page.)

By What Legal Authority Can the Commerce Department Take Over Supervision of the NSF Cooperative Agreement?

I made a quick scan, of the October 7th hearing charter, http://www.house.gov/science/charter_br_10-07.htm and I noted in particular the quote:

"One major change made by the White Paper is that as of October 1, 1998 the Department of Commerce will have sole governmental authority over the DNS. The White Paper's transition of the DNS to the private sector will be conducted under the Department of Commerce's "joint project authority" which will give the government and the new entity much more flexibility."

I asked a knowledgeable legal source: While I'm familiar with NSF Cooperative agreements and the requirements thereof, I'm not sure what the implications are of this statement. What specific powers are conveyed via a "joint project authority"? It appears authority for administering the Cooperative agreement was transferred to Burr at the Dept of Commerce (Amendment 10) and that via Amendment 11, the Cooperative agreement is extended for 2 years. How can one now imply that this transition now falls under the Dept of Commerce's bureaucratic umbrella when it appears the NSF cooperative agreement is still in place?

The legal source whom we consulted commented: The entire discussion of "Joint Project Authority" seems to be a Dept. of Commerce semantic. Loosely stated, it's their assertion that NSF and ARPA, by transferring their awards to them have transferred their programmatic as well as administrative "authority" to Commerce as well. An interesting question is, would this hold up in court? It is clear that US Government intransigence is motivated in part by the Europeans. More on that in a moment. In the meantime the grade school level of preparation on the part of the administration is made clear by the issue of the root servers. Ira has made many statements as far back as last winter that his goal was to find a new home for the root servers and to harden them and enhance them. And yet in the final hours nothing has been accomplished and NTIA asked NSI for documentation on how to run a root server--presumably the A server. Told that no documentation existed, Becky Burr then instructed NSI to write it and give it to her with a warrantee that it would work! I ask what if the FCC had gone to AT&T in the 1984 divestiture and said: develop an operations manual for your competitors?

Becky Burr's Role

Let's look further at Becky. I finally ascertained the source of the US government involvement. In December 1996 the Patent and Trademark Office in DOC prevailed upon the agency to send to OMB a request for the publication of an NOI on DNS from the point of view of trademark issues in the Federal Register. OMB had to follow the rules of circular A119 before going forward. Consequently it assembled the interagency task force on DNS. Ira became aware of the PTO concern in December and in January he also became aware that NSF was unhappy with the turn that IHAC was taking and that NSF was seeking internal authorization to end the Cooperative Agreement on April 1, 1997. He decided that intervention was called for to keep the internet from future destabilization.

In one of the first meetings of the interagency task force, a participant remembers that a commerce department representative bragged that she had gotten the PTO to recognize the importance of DNS and had also taken it upon herself to go to WIPO and brief them in order to be sure that they staked their claim. In 1995, 1996, and 1997 the PTO aggressively pursued an agenda of expanding trademark rights over domain names by working in lock step with WIPO. The PTO work was done without any public notice or comment in the US. PTO representative Lynn Beresford chaired the WIPO consultative meetings on trademarks and domain names during 1997 in constant consultation with Al Tramposch an IAHC member and the WIPO staff member responsible for these issues. The December 1996 Department of Commerce - PTO draft notice of inquiry was essentially Lynn Beresford's stacked deck in line with the agenda above.

Meanwhile in January 1997 someone, whom I have not as yet been able to identify reached out and grabbed J. Beckwith Burr from the FTC. Burr was brought first into OMB where in February and March she worked for Sally Katzen before being shipped on to NTIA in the spring where she and Brian Kahin took charge of the interagency task force. It is not hard to imagine that big corporations liked the idea of taking an enforcer from FTC and moving her to Commerce to be their agent for trademarks. However, for me it is an interesting discovery to hear from a trusted inside source that when Ira Magaziner got involved and started working with Becky Burr at NTIA, the combined effort of these two people did take the process from the closed-door bias of PTO into NTIA, which is a somewhat more neutral forum. And at NTIA they began to look at a wider set of issues. With the result that in the summer of 1997 NTIA did issue the well known NOI which garnered widespread public input.

At any rate, for the Patent and Trademark Office there was the smell of big bucks in the air. For WIPO the payoff was a seat at the table of Internet governance to protect their traditional publishing interests. Remember WIPO as the source of the "database treaty" and demand of payments for browser hits. In comparison DNS can be seen as trivial. DNS was a tool that WIPO could use to embed itself into Internet governance. Furthermore, the Europeans like the WIPO dispute resolution process. WIPO is another UN organization like ITU. It looks as though the administration, in its enthusiasm for WIPO and its global economics model, is siding with huge businesses who are eager to protect their vested interests against upstarts like NSI, IO Design, Iperdome and the Open Root Server Coalition.

Part Three Electronic Commerce and Privacy on a Global Battlefield

DG-4 Versus NSI

The European Commission anti-trust watch dog DG - 4 has taken a strong interest in dismantling the NSI "monopoly". In the opinion of one observer DG-4, the European Commission Directorate General on anti-trust insisted that clause (d) and (e) come out of section 4.1 of draft four of the ICANN by laws. According to him: We bowed to DG4 and took the clauses out. DG-4 has been the entity insisting on the dismantling of network solutions. Why have we found it necessary to pay so much attention to DG-4? One observer offered the following hypothesis. The Directorates General of the European Commission must exert their power rigorously so that you know they are there. For every time a European government changes, some people wonder if the change means the EU is still in place. Loud assertions on policy by the Directorates are the EU's way of letting the rest of us know that it is still strong and healthy.

Some people are suggesting that we have painted ourselves into such a corner on the privacy question that Becky Burr and her technology-ignorant attorney have wittingly gone *outside the conditions* of the cooperative agreement in demanding whatever will satisfy DG-4.

NSI and the Europeans

NTIA went after NSI with an especially doctrinaire vengeance. The question is, in addition to DG-4, why? After publishing my first complaints on the net on October 1 I began to receive some comments from sources who offered some answers for Ira's willingness to push NSI to the brink. These sources pointed out that the NSI IANA struggle had a global dimension that should not be ignored.

Here is an informed hypothesis based first on a 90 minute conversation with an expert source in these areas who has a heavy international background and then reality checked with a cross section of American and foreign insiders. I have also documented it with articles drawn from the web.) Ira, I fear, is using the Onternet as a pawn in a far bigger game. The game is inextricably linked with the privacy statutes of the EU and OECD and the coming October 24th deadline for American companies doing business in Europe and data mining on European citizens as part of their ordinary activities. It is also inextricably linked with the international encryption debate which has resulted in policies that hamper European ability to build competitive software for e-commerce in general. This hypothesis is increasingly reinforced by my private conversations with European press and senior figures in the American internet who are not pleased at what is happening.

1. Since 1995 Ira has shaped the policy mechanisms being used to turn the internet into an American-controlled, strategic vehicle for conducting global economic commerce on American terms.

2. He has done so in the face of the October 25th implementation of the 1995 European Privacy Commission Directives prohibiting export of data from EU countries to countries such as the United States who have privacy laws that do not measure up to European standards. While the statutes were expanded EU wide in 1995, for the past 10 or so years some governments in Europe have kept US companies from bringing personnel data back to the US from Europe due to the lack of controls in the US.

3. Ira has been saying to the Europeans since the release of his electronic commerce paper in July 97 that the answer is industry self-regulation. And asking that we should trust the data mining companies to regulate themselves despite the fact that the global internet gives them the power to leverage the results and impact of their data mining by an order of magnitude.

4. In May 1998 he promised the Europeans and Asians that he would prove to them that industry "self-regulation" would be the way to go by saying that he would deliver an industry formed and driven consensus model for the new IANA corporation by Oct 1..

5. As we crashed into the October 1 deadline, he had no choice but to pull out all the stops in order to achieve what he had promised to deliver -- even if it meant perverting the process and acting behind the scenes to pick winners.

6. At the same time he has created an ICANN with a Board that has no real checks in its ability to set prices and policy for names (DNS), numbers (IP) and protocols. (A dissenting point of view says that while this may be true, the IETF has already served notice on ICANN, that should it interfere with IETF processes, it will take its protocol work elsewhere. It adds that, if it demanded an unreasonable amount of money from ARIN for IP space, ARIN would be screwed, but that the other two registries - RIPE and APNIC could do just fine without complying for 18 to 24 months.)

7. That ICANN has been established with a public authority financing model subject to no outside fiscal restraint and with largely unknown corporate board members with interests more in electronic commerce than in the Internet itself. (The opposing point of view says that it effectively has a foreign majority and that there are inherent possibilities built in for disobedience on the part of the supporting organizations to policies of fiscal profligacy.)

8. Thus Ira would like to present the Board and the by laws in Ottawa as a fait accompli to the OECD. (The opposing point of view feels that we are right in the focus on the danger of the October 24th deadline and on Ira's wanting to show that self regulation can work. It adds a warning that in a year or two many critical decisions on the conduct of e-commerce with likely gravitate to and be made within ICANN.)

Background on the Privacy Statutes Dispute

From an Australian privacy newsletter-- The now-completed 1995 European Union Directive on privacy and free flow of personal data . . . prohibits the transfer of personal data from EU countries to any countries which do not have 'adequate' data protection laws. . . . . The Directive requires all EU member states to implement a Europe-wide standard of data protection. http://www.austlii.edu.au/au/other/plpr/Vol2No06/v02n06b.htm

"What's the single most important issue threatening worldwide electronic commerce today? The stalemate between the U.S. and the European Union over policy on online consumer privacy protection, according to U.S. Commerce Secretary William Daley. Daley, testifying today at a House Commerce Committee hearing on global e-commerce, said that despite the differing stances, he is confident that the Europeans, who have issued a directive that calls for strict protections over the transport of private data, will ultimately be convinced that American companies "adequately" protect consumer privacy. The European directive goes into effect Oct. 25. It calls for adequate privacy protections but doesn't define how that standard will be measured. Meanwhile, the Clinton Administration has adopted a policy favoring industry self-regulation regarding the notification of online collection and usage of personal data. "This could have an impact on millions of transactions," Daley testified. "It could have an impact on the free flow of information." IDG, Sept 20, 1998

In other words the European Union is saying to the US based corporations like IBM and AOL and many others, if you want to do business in Europe after October 25th 1998, your companies information systems *MUST* not transfer personal data from EU countries to any countries which do not have 'adequate' data protection laws. You do not have adequate data protection laws.

This has been an issue since 1995. It is likely that major redesign of our companies information technology systems would be entailed. It is also likely that many wouldn't be able to collect the data here if they did not in Europe. They have assumed that the Europeans are bluffing. They are not. And we are less than 30 days from it becoming illegal to transfer 'personal data" from the EU to the US.

Now since the American response is: "self-regulation will do therefore the EC statutes are unnecessary," Ira stuck his neck out last May 29 in an interview when he said that: v If the Internet can be pushed into "effective self-regulation" in the next few months, then the United States can appeal to the European Union to make a case that such regulation can succeed. Because of that, Magaziner is not terribly worried about what might happen come October when the European Privacy Directive is to take effect, particularly because the various nations involved will administer and enforce the directive differently. "Infoworld Electric, May 29 98"

Therefore Ira needs to deliver full blown "self-regulation of the internet" and he needs to do so quickly.

However there exist some additional complicating problems linking the administration's flawed crypto policies with the privacy issues. As one of those who reviewed this ar ticle for us reminded us on October 19: "the privacy data-flow requirement can not be met without strong encryption, even if the required privacy laws were enacted yesterday, they can not be implemented without strong encryption. ITAR gets in the way of that. Everyone involved realizes this."

ICANN With All Powerful Board Unknown to Most Of the Senior People Who Run the Net </