FC: ICANN attorney replies to Politech post on "self-regulation's end"

From: Declan McCullagh (declanat_private)
Date: Fri Jun 14 2002 - 09:21:22 PDT

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    Previous Politech message:
    "Michael Geist on ICANN, Congress, end of 'self-regulation'"
    Joe Sims is ICANN's chief outside counsel.
    To: declanat_private
    Subject: Michael Geist's column
    From: "Joe Sims" <jsimsat_private>
    Date: Fri, 14 Jun 2002 11:03:28 -0400
    Of course, Geist has it all wrong.  I hope you will consider publishing 
    this response.
    The notion that not enough happens at ICANN in public, and that the answer 
    to ICANN's problems is more transparency, illustrates a profound lack of 
    understanding about what ICANN really does, and how it really does 
    it.  Prof. Geist is not the only one that doesn't get it, but since he has 
    the ability to publish columns, it is probably worth while trying to 
    correct his misunderstanding.
    Contrary to Prof. Geist's assertions, ICANN is not a self-regulatory 
    body.  It was never intended to be a self-regulatory body.  It was intended 
    to be a forum for the possible discovery of consensus solutions to global 
    issues related to the DNS -- a way, quite frankly, for national governments 
    to find a place for the resolution of global DNS issues that did not 
    require a new treaty organization.  It is true that its original structure 
    called for half its Board to be selected by a general At Large membership 
    of some kind, but that was certainly not the consensus view of the Internet 
    community at that time.  Prof. Geist, having not been part of the 
    discussions with the US Government that produced that construction, is 
    undoubtedly unaware of the fact that no one involved in that decision, and 
    I include those in the US Government (feel free to ask them) was convinced 
    that such an approach was really workable.  The ICANN organizers wanted to 
    insert the words "if feasible;" the US Government position at the time, for 
    reasons I leave to the reader to imagine, was "we'll figure out how to do 
    it later."  The then brand-new Board of ICANN, without the assistence of 
    Jon Postel who had died a month earlier, acquiesced to this position, 
    notwithstanding a quite clear concern that it might not be possible to make 
    it work.  In hindsight, I am quite sure most regret this decision.
    We now have almost 4 years of experience by which to test the concepts on 
    which the original construction rested, and we actually know some things 
    that we did not know then.  We know that the notion of global on-line 
    elections is fraught with problems that are too complicated for ICANN to be 
    on the bleeding edge on innovation in this area.  We know that there is no 
    consensus in the ICANN community on exactly how the public interest should 
    be represented in ICANN's structure, notwithstanding the insistence of 
    those like Prof. Geist that there is only one possible solution.  We know 
    that part of the reason there is no consensus is that those who insist on 
    direct elections of Board members have refused to consider any other 
    alternative way of representing the public interest; this religious 
    approach is not conducive to compromise or consensus.
    We also know that a purely private organization, without the support and 
    involvement of governments from around the world, will not be able to carry 
    out thes mission assigned to ICANN (if you believe that mission requires 
    the agreed participation of all the relevant infrastructure 
    providers).  ICANN has no guns, and no soldiers; it has no coercive 
    power.  It can succeed only if the relevant portions of the community 
    voluntarily agree that they want to participate and make it succeed.  To 
    date, that has not happened.  We can argue all we want about why it has not 
    happened, but it is clear that the reason is not the failure to hold 
    on-line elections.  The fact is that the root server operators, the address 
    registries, and the ccTLD registries must be persuaded to come to the ICANN 
    table, and it will not help that process to make ICANN a less stable, less 
    predictable organization.
    Finally, we know (or at least some of us strongly believe) that the path to 
    ICANN success is an appropriate public/private partnership, with the 
    private sector and global governments working together within an ICANN 
    structured to accept input from all but also able to make effective 
    decisions in a timely way.  We are clearly on the path to such an ICANN, 
    and I hope we will take another step toward that goal at the meeting in 
    Bucharest later this month.
    The notion that government interest in ICANN is heightened by the failure 
    to adopt some form of global elections is laughably naive.  Governments are 
    properly interested in ICANN because the Internet is increasingly critical 
    to the well-being, social and commercial, of their citizens, and because 
    what ICANN is responsible for is critical to the continued stable operation 
    of the Internet.  This would be true whether all or none of ICANN's 
    directors were elected by the general public.  And it is this fact that is 
    driving the process of gaining the proper level of government participation 
    in ICANN, nothing else.  This is the real world; Prof. Geist insists on 
    occupying some academic construct of a world.  This longing for some 
    utopian construct is not useful in trying to reform ICANN into a body that 
    does reflect, as best it can be done, the views and concerns of the entire 
    Internet provider and user community.
    Joe Sims
    Jones Day Reavis & Pogue
    51 Louisiana Avenue NW
    Washington, D.C. 20001
    Direct Phone:  1.202.879.3863
    Direct Fax:  1.202.626.1747
    Mobile Phone:  1.703.629.3963
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