FC: K. Auerbach, M. Geist reply to ICANN attorney's Politech post

From: Declan McCullagh (declanat_private)
Date: Tue Jun 18 2002 - 10:38:02 PDT

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    Previous Politech message:
    Date: Fri, 14 Jun 2002 11:43:21 -0700 (PDT)
    Reply-To: Karl Auerbach <karlat_private>
    To: Declan McCullagh <declanat_private>
    Subject: Re: FC: ICANN attorney replies to Politech post on "self-regulation's
    In-Reply-To: <>
    On Fri, 14 Jun 2002, Declan McCullagh wrote:
     > Previous Politech message:
     > "Michael Geist on ICANN, Congress, end of 'self-regulation'"
     > http://www.politechbot.com/p-03653.html
     > Joe Sims is ICANN's chief outside counsel.
    I have heard that Sims has publicly called me an "idiot".  So take the
    following as the blitherings of a fool:
    Sims likes to issue ex-cathedra bulls about how ICANN started and what
    ICANN is.  I wonder whether ICANN paid for this one, and if so, how much?
    Sims' neo-papal-bulls are, however, merely works of fiction.  One can't
    call them historical fiction because the links with reality are far too
    I've been collecting Sims statements for years, and because I'm on the
    Board of Directors of ICANN I have had the opportunity to see how he
    purveys his ever-shifted message to those who could discharge him from his
    job.  I am reminded less of Othello and more of Iago - with the Internet
    taking the role of Desdemona.
    ICANN was the creation of a septic conception.  ICANN was constructed in
    secrecy. Favored groups, euphemistically and inaccurately called
    "stakeholders", were selected.  Secret deals were made.  Comments from the
    public were allowed - but they remained merely comments and they were
    completely ignored - setting the precedent for the
    submit-into-the-dumpster kind of public "forum" process that remains
    standard practice in the ICANN of today.
    How do I know this?  Jon Postel asked Sims to speak to me.  When Sims
    finally did, he informed me that virtually every important decision had
    been made and that changes were impossible because it would require too
    many changes to the deals that had already been made.  What those deals
    were, and with whom, and with what quid-pro-quos, is something that has
    never been revealed, although a few outlines have been seen.
    ICANN loves to wave the word "consensus" - but it is consensus among a
    chosen few.  The ICANN of today routinely ignores even those "consensus"
    mechanisms that it does have - look at how ICANN ignored the
    recommendations of its DNSO regarding .org.
    And all this noise about elections being so difficult: ICANN's
    protestations are simply a translucent excuse to avoid having the public
    elect board members.  ICANN loves to point at this or that report that
    casts doubt on certain types of purely electronic voter registration and
    election systems.  Yet many of us vote in electronic shareholder elections
    all the time - the technology is inexpensive and proven.
    Imagine if the US had reacted to the troubles with its last presidential
    elections in the way that ICANN has:  The US would have abolished
    congressional and senatorial elections and replaced them with a system in
    which the Congress and Senate would have been filled by people chosen by
    the President's cabinet.
    And all this noise about governments representing their citizens - yes,
    governments do.  Governments also represent the businesses and
    intellectual property owners within their borders.  Thus if one accepts
    the belief that one can dispense with public voting in ICANN, then one
    must equally accept the belief that one can dispense with business and
    intellectual property owner voting in ICANN.
    Sims, as usual, waives the blody flag of "stable operation" of the
    Few have bothered to define "stable operation" of the Internet.
    I define it as packets quickly and reliably moving from IP address to IP
    address and as DNS names resolving quickly and accurately.
    Under that definition there is precious little that ICANN has done over
    its lifetime has had anything to do with "stable operation" of the
    Instead ICANN has spent virtually all of its time and energy creating
    things that have nothing to do with technical stability of the internet -
    things like a new international law of trademark (the UDRP), things like
    the grant of .com to Verisign in perpetuity (you get one guess who brewed
    up that that little gem) and with highly intrusive and regulatory regimes
    that condition the grant of new top level domains.
    Even ICANN's "big names" committees - like that of security - have done
    nothing.  (In the meantime, ICANN repeatedly rejects practical and
    potentially extremely valuable approaches.)
    There is some validity to the argument that ICANN has a responsibility to
    protect those who were locked into the pre-existing top level domains,
    such as .com, .net, and .org.  And that justifies ICANN's things like
    ICANN's forthcoming decision on a new operator of .org.  But the new TLDs
    have no pre-exisiting customers who need to be protected.  The people
    buying names there have full freedom of choice.  And there has been no
    public debate, and certainly no public "consensus", on whether ICANN
    should be a consumer protection body.  It would be ironic, given ICANN's
    repudiation of the internet community's role within ICANN, for ICANN to
    consider itself a consumer protection body.
    Date: Fri, 14 Jun 2002 16:48:28 -0400
    To: declanat_private
    From: Michael Geist <mgeistat_private>
    Subject: Re: FC: ICANN attorney replies to Politech post on
      "self-regulation's end"
    Since it's not everyday I get described as "all wrong", "profound lack of 
    understanding", "laughably naive", and "longing for a utopian construct" in 
    a single posting -- it usually takes at least a couple of days to earn 
    those accolades -- I hope you'll permit a brief response to Joe Sims that 
    hits on three points.
    First, Joe at least validates my point in the column that ICANN mistakenly 
    seeks to characterize its critics as insisting that the issue is all about 
    global online elections.  My column specifically argues that this is not 
    what this debate is about and even goes so far as to suggest that elections 
    do not necessarily ensure adequate representation, balance, and 
    accountability.  Far from a "religious approach" with not alternative 
    solution, I think that elections are the most obvious method of working 
    toward fair representation, accountability, and transparency, but not 
    necessarily the sole method of achieving those goals.
    Second, Joe argues that groups such as the "ccTLDs must be persuaded to 
    come to the ICANN table and that it will not help that process to make 
    ICANN less stable, less predictable organization."  I think Joe and 
    (perhaps ICANN by extension) make a serious mistake in thinking that 
    transparency, representation, and accountability somehow undermines ICANN's 
    ability to bring ccTLDs on board.  Last year I was elected to the board of 
    the Canadian Internet Registration Authority, which manages the dot-ca, in 
    a public online election.  CIRA just completed its second online election 
    yesterday and the results will be announced next week.   I believe that 
    this illustrates that online elections are hardly the bleeding edge of 
    innovation that Joe claims. The unpredictability that elections create has 
    nothing to do with new technologies -- rather, it is the unpredictability 
    of who will actually be elected, which I suspect, is one the major concerns 
    of those who currently run ICANN since vocal directors such as Karl 
    Auerbach and Andy Mueller-Maguh were not exactly their first choices two 
    years ago.
    Moreover, my position (and I speak only for myself and not other directors 
    nor the organization) in the most recent CIRA election was that CIRA should 
    not enter into any agreement with ICANN unless it can be satisfied that 
    ICANN has addressed the fairness and accountability issues with all of its 
    constituent groups, including Internet users.  The reasoning is simple -- 
    if users can be so easily dismissed, what is to stop ICANN from doing the 
    same to the ccTLD community once  they have them signed, sealed, and 
    delivered. Transparency, accountability, and fair representation are issues 
    that matter to all stakeholders, particularly those that ICANN admits that 
    it must persuade to come to the table.
    Finally, while Joe says that I long for a utopian construct, the last time 
    I checked:
    - Senator Conrad Burns was saying that legislation might be needed because 
    ICANN does not operate in an open fashion and is unaccountable to Internet 
    - the GAO was concluding that ICANN has made little progress in ensuring 
    representation of the Internet community and using private, bottom-up 
    - ICANN was embroiled in a lawsuit for failing to provide a director with 
    access to its records as required by state law;
    - the EU was recommending total governmental consultation on all policy 
    issues (some partnership that); and
    - the United Nations was wondering aloud about involving international 
    governmental organizations in the domain name governance process.
    Despite that environment, Joe says that ICANN is on the path to 
    success.  Now which one of us is really laughably naive and longing for 
    utopian construct?
    Professor Michael A. Geist
    University of Ottawa Law School, Common Law Section
    57 Louis Pasteur St., P.O. Box 450, Stn. A, Ottawa, Ontario, K1N 6N5
    Tel: 613-562-5800, x3319     Fax: 613-562-5124
    e-mail: mgeistat_private
    URL:    http://www.lawbytes.ca
    Date: Fri, 14 Jun 2002 10:42:16 -0700
    From: lizard <lizardat_private>
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    To: declanat_private
    Subject: Re: FC: ICANN attorney replies to Politech post on 
    "self-regulation's  end"
    Declan McCullagh wrote:
    >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.
    I find this statement more than marginally amusing; it amounts to, in 
    effect, "Those who like sausage or internet policy should not watch either 
    being made." The implication is that the lumpen proletariat is too stupid 
    to understand the reasoning behind various ICANN decisions, thus, these 
    decisions must be made in darkened rooms under the cloak of shadow, lest 
    the ignorant fools who are governed not comprehend the necessity of large 
    suitcases of unmarked bills being handed around or precisely why the heads 
    of major corporations get to dicate policy directly.
    I propose, as always, that the market will find a solution; remove any 
    pretense of there being a central governing authority to the internet, and 
    let everyone work it out for themselves.
    Subject: Re: FC: ICANN attorney replies to Politech post on 
    "self-regulation's  end"
    Date: Fri, 14 Jun 2002 11:07:39 -0700
    From: Paul Schreiber <shrubat_private>
    To: <jsimsat_private>, "Declan McCullagh" <declanat_private>
    Joe wrote:
     >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
    Would it harm ICANN in any way to do *everything* in public, to be
    completely transparent, to hold meetings in public places; to webcast
    them; to post meeting agendas, minutes and other business documents
    online? I don't see how.
     >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.
    What was the consensus view at the time? How do you know this? Who did
    you ask? (Note: The CEO of AOL/TW and four US senators does not represent
    the consensus view of the Internet community.)
     >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;
    Most corporations allow their shareholders to elect directors;
    co-operatives allow their members to elect directors; democracies allow
    their citizens to elect leaders; yet somehow, you say, this won't work
    for ICANN.
     >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.
    Perhaps they're interested in it for *both* reasons.
     >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.
    Neither will running around behind closed doors and pretending you know
    what's right for everyone.
     >The preceding e-mail message (including any attachments) contains
     >information that may be confidential, be protected by the attorney-client
     >or other applicable privileges, or constitute non-public information. It is
     >intended to be conveyed only to the designated recipient(s). If you are not
     >an intended recipient of this message, please notify the sender by replying
     >to this message and then delete it from your system. Use, dissemination,
     >distribution, or reproduction of this message by unintended recipients is
     >not authorized and may be unlawful.
    Yes, that's why you sent it out to several thousand people.  Do you have
    any idea how silly email messages with disclaimers look?
    Date: Sun, 16 Jun 2002 23:41:34 -0400
    From: Nick Bretagna <onemugat_private>
    Reply-To: afn41391at_private
    To: jsimsat_private
    CC: declanat_private
    Subject: Re: FC: ICANN attorney replies to Politech post on
    References: <>
    >From: "Joe Sims" <jsimsat_private>
    >  <snip> 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.
    I don't recall a single article naysaying this position at the time which 
    did not come from someone with a blatantly vested interest in some "other" 
    Defend this statement. A few dozen URLs to articles and columns should 
    abound if it were true (with appropriately knowledgeable and at least 
    moderately unbiased sources). It isn't, since I can readily recall the 
    time, and there were few, if any, of significance in the technical 
    community naysaying it.
    >  Prof. Geist, having not been part of the discussions with the US 
    > Government that produced that construction,
    Ah, so ICANN is a government-body already?
    >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.
    Well, the fact that many in the government of the US does not believe in 
    the reliability of elected representatives does not seem particularly 
    amazing to me.
    I wonder why?
    >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.
    Yes, you've worked so hard at it.
    >We now have almost 4 years of experience by which to test the concepts on 
    >which the original construction rested,
    "testing" requires that they be put into effect and flaws found. Since 
    you've never even produced a full board as it was described (even though 
    you clearly can do that much) I don't see how your statements demonstrate 
    anything other than obfuscatory rhetoric.
    The statements certainly have nothing to do with truth or veracity.
    >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.
    Gimme a BREAK. This thing isn't some day to day 
    vote-your-mind-of-the-moment problem -- it's a means to a consensus of 
    those who have internet access, and it doesn't need day-to-day operational 
    This is just not that tough.
    And if the current board ICANN can't do it, who the hell can?
    You people are supposedly all individuals at the cutting edge of technology 
    and its interface with other professions -- if you AREN'T, then get the 
    bloody hell off the board and put someone onto it who is!
    >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.
    No, he didn't say that there was only "one possible solution" -- he said 
    that there was one solution which was defined to be the one to be used -- 
    which you people have done nothing but obfuscate and dodge since the 
    inception occurred.
    Someone should sue your useless asses off the board for outright breach of 
    contract. You not only haven't done that which you were supposed to do (a 
    clearly defined set of activities), you haven't even tried very hard.
    You think it can't be done? Then QUIT and let someoneelse do it. Your 
    massive contributions will be gratefully acknowledged at your farewell 
    luncheon, I'm sure.
    >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.
    What set of halfwit BAR members let you become an attorney?
    God *FORBID* anyone should actually expect you/the board to do what you 
    were contracted  to do...
    I repeat:
    You think it can't be done? Then QUIT and let someone  else do it.
    >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 this 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.
    Why should anyone feel any reason to follow you if you don't even do what 
    you promised to do in the first place, you bleeding idiot?
    You don't represent those who you were defined by contract to represent -- 
    you represent a bunch of self-serving bureaucrats and organizations.
    It's amazing, actually, that you actually have the stupidity to claim this, 
    considering the tremendous amount of "agreement and participation" your 
    predecessor organizations managed to obtain despite not having any 
    soldiers, either.
    It pretty well shows exactly what a "voluntary standards organization" can 
    expect when it doesn't represent those it is supposed to.
    "Gawrsh, Wilbur! It don't work!"
    >We can argue all we want about why it has not happened,
    No, it's bloody damned obvious what has not happened -- any true effort at 
    an election process, and an usurpment of power by the unelected portions of 
    the board in the wake of that.
    No argument is required. All four of your halfwit grandparents could see 
    what the reason is!
    >but it is clear that the reason is not the failure to hold on-line elections.
    Yes, everyone involved is happy with that fact.
    The fact that the existing unelected board has blatantly tried to eliminate 
    the existence of the elected portion without any effort to produce the 
    elected portion, which was part of its charter in the first place -- No, 
    that could not possibly have anything to do with an unwillingness to comply 
    with whatever ICANN's fiats may be.
    A total lack of legitimacy -- that certainly has nothing to to with the 
    lack of compliance and assistance. Nahhhhh... None whatsoever.
    >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 
    Oh, I see -- so, actually providing it with the very thing which was the 
    entire reason for its existence would not possibly have anything to do with 
    the reluctance to deal with what is, clearly, an utterly illegitimately 
    acting body in clear violation of its charter.
    Nah. Can't be that. No way.
    By the way -- as an aside -- do you know of any investments in land? How 
    about any Spanish Prisoners I might help out? Money trapped in Nigerian 
    bank accounts I can help someone free up? Afghani Gold, even? I'm looking 
    for ways to invest my entire life savings, and I trust you utterly to guide 
    me in this regards, and I can see that you clearly have your finger on the 
    pulse of honest dealings, and the fact that I'm believing the things you 
    say make it clear I am exactly the sort of person you would want to deal 
    >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,
    Having made certain that the one system based on the working historical 
    model couldn't ever come into existence, and used that prevention as an 
    excuse to impose radical changes on a community that does not want or need 
    >and I hope we will take another step toward that goal at the meeting in 
    >Bucharest later this month.
    I hope that Bin Laden decides to make an example of you. I doubt it will 
    happen, but if it does, I will personally cackle with glee, you arrogant 
    >The notion that government interest in ICANN is heightened by the failure
    >to adopt some form of global elections is laughably naive.
    No, the government interest is a result of the failure of people to abide 
    by ICANN's  illegitimate decisions.
    It is THAT failure which is a direct result of the lack of global elections.
    Ya gotta order these things correctly if you want to see the flow, don'cha 
    >  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.
    ICANN's functions are a potential path to power for bureaucrats and 
    charlatans of all kinds. That there are many of those in government was 
    never in doubt.
    >This would be true whether all or none of ICANN's
    >directors were elected by the general public.
    Yes, but it would be much, much tougher for them to justify intervention if 
    ICANN was getting the assistance and compliance of people who gave its 
    predecessors their assistance and compliance, wouldn't it...?
    And if you claim that lack of compliance comes from anything except the 
    self-evident fact that the existing board is an illegitimate collection of 
    power thieves, I'll call you, right now, a lying sack of fecal matter.
    You know better. I know better, and so does anyone else who knows how the 
    net operates, to wit:
    They do not hesitate to assist and comply with people of legitimate 
    authority -- it is only those who lack authority but claim it despite such 
    lack who find themselves needing of soldiers and guns to enforce compliance 
    with their fiat commands.
    This above has plenty of historical prescedent where the net is concerned.
    >And it is this fact that is driving the process of gaining the proper 
    >level of government participation in ICANN, nothing else.
    Yes, the utter and complete illegitimacy of the current board is certainly 
    at the very heart of the entire matter.
    I fully concur.
    It is entirely why you have to seek the assistance of guns and soldiers to 
    enforce your utterly illegitimate commands. Yep.
    >This is the real world;
    One where thieves and politicians decide how things should be, using 
    government thugs to back up their commands.
    >Prof. Geist insists on occupying some academic construct of a world.
    The one which is the internet, you mean?
    Constructed mostly by those same academics and idealists of which you so 
    sneeringly and condescendingly refer?
    Sorry, you're confusing the techs who created the net with the liberals and 
    twits in university think tanks, poly-sci departments, and business schools.
    The people who created the net? THEY live in the real world, and create 
    REAL things. Such fact self-evident by the existence of the net itself, 
    which certainly has threatened a large part of the existing power structure.
    >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 thieving pricks and political hacks attempting to usurp power from 
    those who legitimately possess it,
    >the entire Internet provider and user community.
    You inadvertently (no doubt) dropped a clause, there. I added it back for you.
    Are you under the impression that those people who operate these things are 
    going to comply with your fiat demands because you have a government behind 
    you? No, they'll just quit -- and then you'll have a situation like you do 
    in South Africa, where incompetent idiots are in charge of the situation, 
    and nothing is getting done right. If South Africa were more significant, 
    there'd be a major problem -- but only South Africans give a damned about 
    how messed up their web is.
    In other words, your top-down imposition of power isn't going to work. Most 
    of the people who run the systems will not comply, and the people you can 
    get to take their places aren't going to know what the hell they are 
    doing... the system will then fail, probably catastrophically, because you 
    will have necessarily  installed too many of half-wits to run things they 
    don't understand.
    In other words, your vector is a dangerously presumptive one.
    Like I've said, if you think those elections can't be made to work, then 
    fine, the solution is obvious -- QUIT.
    Go get yourself a real job that you're actually qualified for -- and  get 
    out of the way so someone who does know what they are doing from a 
    technical standpoint can do the job.
    Have a nice day.
    ------- --------- ------- -------- ------- ------- -------
    Nicholas Bretagna II
    POLITECH -- Declan McCullagh's politics and technology mailing list
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