Fund Raising Emails and Analysis of ISOC Coalition Building Raise Doubts About Legitimacy of White House Approved Plan for Industry Self Regulation

Editor’s Note: September 9, 1999: If one does not understand how ICANN came to be, one will not grasp the complex interaction of forces that are powering it. It will remain the mysterious black box that can be interpreted differently for different audiences. The tiny group directing it has found it desirable to run it in a way that gave lip service to transparency while obscuring the coalition of trademark, regulatory and e-commerce interests behind it. Without the road maps provided by ICANN’s private fund raising correspondence and an unpublished analysis of ISOC coalition building, the self-interested nature of the glue holding together the forces behind ICANN is unclear. ICANN is not the disinterested technical coordinating body for "Internet plumbing" that Esther Dyson claims it to be. While it is clear enough to its critics that ICANN is bad what, at heart, it really is has generally been obscure.

ICANN has been such a jungle of groups and committees operating in secret that policy makers have had no other choice but to throw up their hands and accept ICANN’s public relations rhetoric. The first part of this long article intends to give a framework for understanding what is happening by looking at the evolution of what came to be ICANN over the past five years. It does this with the hope that, for the first time, it should therefore become possible to formulate cohesive policy for dealing with ICANN. It has been possible to do this thanks to the insights of an analytical framework laid out in an unpublished paper by someone I know and consider to be an authoritative source. I have read his paper and written my own summary taking into account its key ideas. What follows is not an abstract of this paper and its conclusions. It is my own work that owes a strong debt to the arguments and events recounted in the paper. It also gives my own insights into the coalition building carried out by ISOC. While the paper reminded me of many details, I am indebted to it primarily for two reasons. One is its emphasis on ISOC’s coalition building, and two is its analysis of how the lack of legal foundation for the administration of the Internet’s new technology made DNS an extremely attractive area for the trademark interests to ally with ISOC in establishing control over intellectual property on the Internet by means of ICANN.

Note added 9/13/99: The author is Professor Milton Mueller of School of Information Studies of Syracuse University. Milton's paper analyzes ICANN as, at least in part, the product of ISOC alliance building. He has given me permission to name him as the author. Milton intends that the paper be published in an academic journal and therefore has asked me not to give out the URL which is not publicly visible from his web site. Nevertheless those of us who have been trying to figure out how ICANN came to be owe him a debt of gratitude.

The framework (borrowed from Mueller) that follows shows how ISOC, under the leadership of Vint Cerf and Don Heath, wanted to establish itself as the private, focal point of Internet governance. However, ISOC soon found its efforts to institutionalize its control disrupted by the trademark interests. The trademark community saw DNS control as a Nirvana by which it could extend and protect its private property interests in cyberspace for a fraction of what it might otherwise cost. At this point ISOC went forward through additional rounds of coalition building to achieve in ICANN a governance structure that may be accountable to their coalition partners but leaves the interests of those not a part of this narrow coalition process at risk.

The ICANN crisis can be traced directly back to ISOC’s 1995 plan to take over domain name space. [Published in August 1999 COOK Report, pages 19-20.] Trademark, and intellectual property interests went into the DNS arena, at first, out of fear of the loss of their enforcement capabilities. Very quickly ISOC realized that an alliance with them could provide the economic and political muscle necessary to enable ISOC’s own ambitions which were to become responsible for the administration of the technical aspects of IANA functions. If such functions were to be exercised on behalf of the trademark interests, the act of doing so would create a backlash on the part of those with businesses enabled by the new technology. To carry forward in the face of such a backlash the ISOC trademark interests had to move to establish rigid control over areas that had formerly operated by consensus.

Given the new arena of immense economic value enabled by the commercial Internet, it was perhaps inevitable that it would attract property interests. It is not surprising that these interests established their agendas to carve out advantages in a way designed to capture, alter and control key parts of the technology for their own benefit. The source of their authority to take such actions is likely to be unclear. This is because authority for handling key components of a new technology is unlikely to have been structured in such way as to be an adequate foundation for controlling such components once they become assets of immense economic value. The coalition of formed by the Internet Society and intellectual property interests has an opportunity with ICANN to create a new governing structure which can provide the intellectual property interests with a highly cost effective way of both extending and enforcing their rights in the new medium. If this governing structure can be put into place by stealth before those affected by it realize what is happening and, more importantly, how and why actions are being taken, the ISOC, Trademark and now European government coalition can achieve a long lasting power base.

Control over the DNS root and the database under girding it is seen as control over the means of interconnection of all computers worldwide. While domain names were once just more easily remembered user address that the 16 digit IP string, in a commercialized internet many domain names have also become brand names and marketing tools. The more catchy the more desirable and the higher the value for some domain names. These names acquired their value as a single global location service due to the existence of a single coordinated and authoritative global root server system.

Beginning in 1995 and continuing through 1998 control of DNS policy and of the DNS root became the focal point of the activity for those who were attempting to establish their property rights for use in this new arena of increasing and, for the moment, uncontrolled economic activity. Their means of conflict became DNS name - trademark conflicts and the right to add new top level domains to the root servers. Among the business community the increasing understanding of the growing economic value of a domain name drove a desire to establish stronger property rights over them. Trademark law became their means of accomplishing this. Since a domain name gives global visibility to its owner, it transcended the traditional geographically based restrictions and line of business restrictions on a business name in a way that wealthy businesses could ill afford.

The question of who might add new Top Level Domain names to the root servers became enmeshed in a series of complex questions within the arena of the public policy of property rights extended via trademark law to Domain Name Space. These questions could not be resolved without the creation of a new institutional framework that could be given the authority to resolve them. Because the Internet had developed a culture of "self governance," Internet institutions that might have successfully asserted authority in these areas did not do so. Furthermore the "self governance was designed to handle technical standards and operational issues. These (intellectual property) issues were neither technical nor relevant to the operation of the Internet..

In the meantime the various federal agencies involved were for varying reasons unable either to assert their authority or to design new institutional arrangements. The vacuum of authority was intensified because the Internet is itself a decentralized technology. International organizations such as the ITU found themselves no better able to fill the vacuum.

Before the Internet, acquiring property rights to a registered name under which global business could be conducted was a very time consuming process that cost thousands of dollars in each of the countries where it had to be simultaneously undertaken. Registering a globally visible domain with Network Solutions on the other hand took only a few minutes, became globally useful in a few days. Trademarks registration was slow and cumbersome. Internet name Registration was fast and cheap and out of the control of the traditional governmental authorities.

On the one hand, Domain Names registered to speculators for the purpose of exploitation of trademark owners could cost those interests tens of thousands of dollars to pursue even prior to court action, if the owners could be physically located, which often they could not be. On the other hand, access to the registration data base drove down the cost of monitoring the use of new domain names to unprecedented lows. Why? Because in the physical world there is no single centralized database into which all people doing business needed to enter their business names and whereabouts. In the Internet there was such a database. One database to patrol versus hundreds if not thousands. By 1995 it became clear that the internet could offer trademark owners a huge reduction in the transaction costs of registering and protecting domain names if they could engineer a few structural weak points in their favor. Enter ISOC.

Between 1995 and 1998 a series of players tried to gain authority over the DNS root. Vint Cerf had begun moves to centralize standards authority by creating the Internet Architecture Board (IAB) as "the coordinating committee for Internet design, engineering, and management." In 1991 Cerf had been instrumental with Mike Roberts and Tony Rutkowski in creating the Internet Society as a non profit entity that could provide and umbrella of legal authority for the IAB and other Internet governing organs. Jon Postel had in the IANA, which he alone controlled, the ultimate responsibility for policy making in the key areas of interest to the trade mark community. In 1994 Postel wrote a contract by which he proposed to transfer the IANA authority from a DOD contract to ISOC. Postel and Cerf expected to be able to implement the arrangement without any specific legal operation and went ahead despite some question within federal agencies as to whether ISOC should be regarded as sanctioned with full legal responsibility for implementation of DNS space.

In September1995 Postel asserted that, "I think this introduction of charging by [NSI] for domain registrations is sufficient cause to take steps to set up a small number of alternate top level domains managed by other registration centers. I’d like to see some competition between registration services to encourage good service at low prices." Postel drafted a proposal for 150 new TLDs to be added over a period of three years. This action had two announced purposes "competition in Domain Name Registration" and "extending the legal and financial umbrella of the ISOC to IANA". IANA and ISOC were proposing a new privatization of the root without any formal legal authority to do so. Postel’s proposal was not successful encountering opposition from the ITU which wanted to be making these decisions and from trademark interests who didn’t like the expanded enforcement effort that would come with new domain names ISOC’s Don Heath appeared with David Maher of INTA and Robert Shaw of ITU at the Harvard Kennedy School of Government convocation in June of 1996. Heath pulled the plug on Postel’s effort saying that he was now in charge.

IIn October 1996 ISOC moved forward again this time determined to break new institutional ground as it did so by co-opting its critics. Robert Shaw, the ITU person who criticized the process was given a seat on the eleven member "International Ad Hoc Committee" (IAHC). Trademark and intellectual property interests (INTA and WIPO) were also included and were later given permanent roles in ICANN.

The charter for the IAHC committee was released on November 11, 1996 and three months later a final report was issued that proposed the management of domain name space as a "public resource." Ira Magaziner later told the COOK Report that November 1996 also marked the month in which large corporate players turned to his task force to complain that electronic commerce would suffer if trade mark issues were not adequately dealt with.

In the IAHC system DNS administration was directly linked to trademark concerns for the first time. Registrations of new names would not become effective until after the expiration of a 60 day waiting period where they would be reviewed by WIPO administrative challenge panels. The IAHC governance structure was encompassed in a document called the Generic Top Level Domain Memorandum of Understanding (gTLD-MoU). Registrars were to incorporate in Geneva as a non-profit Council of Registrars (CORE). Policy for the CORE registrars was to be decided by the Policy Oversight Committee (POC) which had a make up reflecting the same constituencies as the IAHC. The ITU records show Heath signing the gTLD-MoU on 2 Apr 97 for ISOC, and Postel on 7 Apr 97 for IANA. By the terms of the gTLD-MoU, these two signatures executed the agreement. The signing ceremony at the end of April at the ITU’s premises was to add further signatures and give it the aura of an intergovernmental agreement. The Administration of Albania was the only governmental signatory.

One problem was that in June of 1997 the ISOC and IANA still had no more legal authority over the root than they had a year earlier. By the end of the summer of 1997 the ISOC IANA attempt to assert their authority had failed again. IAHC’s involvement with the ITU raised concerns at the State Department and brought matters to the attention of the European Commission. The shared registry system was attacked because it limited the expansion of TLDs and imposed significant regulations on upon participating CORE registrars. Some thought it was a sellout to trademark interests but INTA itself thought it went too far. The European Commission attacked the plan as "too US-centric" and asked for more EC "public debate."

The concerns that were concomitant with the gTLD-MOU process caused the beginnings of US government involvement in December 1996 and a formal white House assertion of control over the NSF handling of NSI at the beginning of March 1997. This process became formalized with the July 1 1997 NTIA Notice of Inquiry that produced the Green paper on January 28 and the Postel hi-jacking of the root on January 27 1998. The Green Paper asserted the US government’s full authority over the root and IANA. Magaziner told the COOK Report than he had informed Postel over lunch on December 10, 1997 that he would not under any circumstances be allowed to add the IAHC names to the root. When Postel redirected the root servers on the 27 of January, the eight that complied were at Universities and research institutes. Those that did not were at PSI (a commercial network) and US Government installations. ISOC had formally criticized entire NTIA proceeding as a form of "government intervention" in what it claimed was a "self-governing" Internet.

Once again ISOC lead a successful counter attack against the US Government position. This time ISOC expanded its coalition again to include The European Commission and US electronic commerce interests as represented by MCI and IBM which had led in the formation of a lobbying group called the Global Internet Project (GIP) in the fall of 1997. On June 3 1998, in response to both European pressure and heavy ISOC lobbying the White Paper gave up the goal of direct action by the US government. Instead it called for a form of "industry self-regulation" that proposed to shift most of the responsibility for the formation of the new organization to "the private sector."

The White Paper also maintained the primacy of the trademark and intellectually property interests by promising WIPO its own role in the transition. The White Paper gave the internet industry 4 months to come up with a corporation that commanded consensus among stakeholders. ICANN was the alleged consensus product. In reality, as we have seen it was Postel and ISOC (Cerf and Heath) returning to what was by now a rather enlarged version of their IAHC coalition.

As author of the unpublished paper puts it: "Since then it has become evident that the real meaning of "industry self-regulation" and "stakeholder consensus" was to give the ISOC-led coalition a chance to implement the main features of the gTLD-MoU plan. Under the White Paper process the implementation of that plan has proceeded more slowly, a bit more transparently, and with the official sanction and participation of the US government, the European Commission, ITU, and WIPO. ICANN’s status as an institutional innovation should be evident. Nominally a private corporation, it has been given quasi-governmental authority over a global resource, the Internet root. It can be seen both as a product of direct government intervention by the US and Europe, and as part of a deliberate attempt to keep certain aspects of Internet administration out of the hands of traditional institutions, such as national governments or intergovernmental treaty organizations like the ITU."

At the same time that it delivered ICANN, the other part of the White Paper process called for a WIPO study and findings. These findings were completed on April 30, 1999. They delivered instructions to ICANN to preserve, on as favorable terms as possible, a system that will yield the highest rate of return to the large corporate intellectual property lobby that can be gotten away with. The analysis reminds us that "Implementation of the WIPO proposals hinges upon ICANN’s ability to inherit the root server system. If ICANN controls the root and adopts WIPO’s proposals, it can enforce the new WIPO regulations by means of its contracts with registries and registrars. ICANN’s control of access to the root would make it impossible for anyone participating in the domain name system to avoid the regulations.

The Clinton Administration lobbied by the GIP and worn down by ISOC caved. It turned the internet over to a ICANN as a body run primarily by three men (Cerf, Heath, and Roberts) who used a major corporate attorney (Joe Sims) to create an Internet governing structure that first and foremost existed to serve trademark and intellectual property interests and secondly the interests of old line telcos. In picking ICANN as the likely winner for the body to implement Internet self-regulation and steadfastly maintaining that the Internet would not be regulated, the Clinton administration hypocritically chose a policy that allowed it to have its cake and eat it too. ICANN would adopt publicly an anti-regulatory stance while, in reality, it would build a control structure that would warm the hearts of pro-regulatory Democrats. The Clinton Administration could afford to take a strong stance against Internet regulation because it had ICANN to regulate the Internet on its behalf.

In the process that has yielded ICANN, the price of Cerf and Heath winning the amount of influence for ISOC that they demanded was a structure that only paid lip service to the ISOC slogan that the "Internet is for everyone." In reality its structure was carefully crafted to give both large corporate interests and governments wanting to oversee communications and financial activity a mechanism by which their needs for control of a hither-to uncontrollable medium could be carried out. If ICANN appears inflexible and unaccountable, it is so because of the need of the people running it to satisfy their corporate and governmental benefactors. It serves them by creating a registrar process that is designed to shift the burden in the enforcement of current property rights and acquisitions of new ones from the wealthy owners of trademarks onto the shoulders of small and not yet wealthy entrepreneurs.

The GIP, GAC and ISOC masters of ICANN have a script that has been decided on behalf of the vested interests of their coalition allies in advance. They cannot afford to deviate from it without disaffecting one potentially important supporter or another. To win they had to embrace the most conservative intellectual property interests and e-commerce interests - the ones that are dependent on maintaining next quarters’ profit figures as opposed to the smaller and more nimble operations from where the innovations have come from that fueled the Internet revolution. ICANN after it’s Santiago meeting has made it quite clear that its duty is to cooperate in promoting the interests of its sponsors, the Bureaucrats of the EC, the interests of legacy e-commerce companies like IBM, and US government bureaucrats.

It seems that what we have seen for the past three years has been a jumbled series of end runs around policy pronouncements that say one thing and wind up meaning another. Instead we believe that the analysis which we have sketched in this introductory section can serve as a very useful guide to understanding the ICANN actions to be recounted in the following sections. Namely, ICANN cannot be expected to be accountable to anyone save its trademark, e-commerce, government and legacy telco masters because this is coalition that ISOC has found it necessary to put together to triumph over its critics. While Vint Cerf and John Patrick are saying if ICANN dies, the sky will fall, in fact a collapse of ICANN will best serve those interested in the continued operation of an Internet whose doors are not closed to entrepreneurs and innovators.

IICANN is beginning to win its battle to become a global regulator and controller for the Internet. It is moving through a vocabulary of doublespeak to build a framework from which to rule. The framework is crafted so that it surrounds ICANN with a shield designed to be immune from legal attack. Claiming to be beholden to the Internet community, ICANN will be accountable to no one except its corporate and government political supporters. Driven by a campaign of deceptive image management, it claims that it is doing nothing more serious than carrying out a consensus driven mandate to manage the Internet’s plumbing.

It is winning by virtue of having constructed a jungle of supporting organizations and working groups. To follow the power one must be able to work one’s way through a maze. Only a full time observer can even begin to follow what is really going on inside the mazes constructed within the jungle where each working group has its own mail list. ICANN’s shadowy staff comb the lists and plan strategic guidance for the board and posting their reports less than a week before they are acted on in major closed door, decision making meetings. The ICANN modus operandi is to establish superficially all the forms of democratic openness and then behind the scenes to gut them quietly with new layers of committees and staff reports. Every three months in some corner of the globe they are trotted out for ratification by the very ICANN board that was chosen for its ignorance of what it was being asked to ratify. When the board complete its unanimous blessing of the reports via its unanimous resolution it flies home.

Esther Dyson then goes on a media tour where she boasts of how ICANN is bringing NSI’s ‘unconscionable monopoly’ to an end and asserts once again that she is for the little guy. Having carried on a world-wide tour of obfuscation and sound bytes, she feeds the press the slogan that ICANN is not doing any Internet oversight. But at the same time that she and Vint Cerf hobnob with corporate chieftains and the White House to collect money to pay the lavish debts that she and Roberts are ringing up. Her behind the scenes "godfather" IBM asserts to the people being dunned that they are making an investment in their future because ICANN is trying to get the policy, technical and financial aspects of the Internet moved successfully from U.S. government to the international private sector."

Icann’s power resides squarely in the hands of a very elite group. The group grew out of Larry Landweber’s October 1 1995 memo to Vint Cerf and the ISOC Board. The goal here was to move forward and capture control of the DNS and the income that could be derived. The strategy for doing this was bringing IANA under ISOC control. IAHC and its gTLD- MoU was the first ill fated attempt to accomplish the strategy. ISOC then turned to coalition building inviting the very entities whose interests were challenged by the Internet’s technologies to join it in a program of building regulatory control. In the fall of 1997Vint Cerf from MCI and John Patrick announced the Global Internet project where IBM, MCI and other old line technology companies pledged to work together and with government to create uniform conditions favorable to internet development around the world. The extent to which Marilyn Cade on behalf of ATT and Roger Cochetti on behalf of IBM lobbied Ira Magaziner is widely known. Less well known (until MSNBC published some of his secret fundraising email) was the role of Vint Cerf at MCI. Vint, working through Mike Roberts who co-founded the Internet society with him in 1991, set out to raise money for ICANN as ISOC and the GIP’s successor vehicle to the gTLD MOU effort.

A year ago Cerf and the GIP were preparing to install Roberts as their hachet man and mouth piece in the Presidency of ICANN. In a wonderfully deceptive move Roger Cochetti having checked her out with Ira Magaziner picked Esther Dyson as ICANN Board Chair. Esther had just published a book -Release 2.0 that positioned her as a populist in portraying the Internet and its technology as a force that could liberate and empower average Americans to live their lives more free from dependence on corporate jobs and corporate and control than ever before. Esther had a persona where she could claim to represent the little guy. Overlooked in this assessment however was Esther’s other persona: confidant and go between of the corporate chieftains of American and to a lesser extent global information technology. Esther knew what they wanted and could use ICANN in the area of telecommunications and electronic commerce to help them achieve it. ICANN of course denies that its ambitions have such reach and Esther goes out of her way to ask Dave Farber not to refer to ICANN as the Internet’s Oversight Board, even if the press does.

ICANN indeed does its best to influence. They tell "the big lie" so often that the press goes along for the ride. Combining their manipulative strategy with public ignorance has gotten them well on the road to success in being able to: (1) decide who can have what domain name under which conditions; (2) give European PTT’s potential control over the assignment of IPv6 addresses, and; (3) let the W3C and ITU into the policy making of the IETF. An Internet run for Vint Cerf, John Patrick, Mike Roberts and Esther Dyson, –ICANN’s masters – will liklely be a very different beast than the free-wheeling competitive affordable Internet that we have seen so far. While of course we cannot predict with certainty just what they will do when, the reality of the present situation is as Napoleon said: "All you have to do is delay the truth until it no longer matters." This essay will cover the most recent machinations which Cerf, Dyson, Patrick and Roberts have gone through since the Berlin meeting.

Vint Cerf might have used his world-wide prestige on behalf of open convenants between groups of internet users openly arrived at. Instead what he and IBM’s John Patrick have done on behalf of the Global Internet Project is to bring big corporate money and lobbying into influencing the outcome of the establishment of ICANN. Zero sum games are driving the moves of trademark groups as the struggles for competitive advantage. Consequently, the worth of the net will be greatly diminished if Vint’s legacy becomes one of groups of nations or companies competing with other groups for local advantage in use of the Internet. The ironic result of the Cerf /Patrick manipulation of the GIP may be a zero sum game of beggar-thy-Internet-neighbor that will make the seamless global market that Cerf wants impossible to achieve.

As we shall now see ICANN’s attention to image runs the gamut from the strategic issue of emasculating its membership to the most petty intent of working as hard as it can to guide and prompt all opinion makers. Take Dave Farber who for a decade has run a one way mail list called Interesting People.

On Saturday August 28 someone from ICANN mailed Farber a complaint: "I know the press refers to ICANN as the "Internet Oversight Board" but that’s a horrible misconception that causes trouble. For example, the ICANN does not oversee Internet Standards (that’s IETF business) nor most aspects of managing the Internet (that’s done by NANOG if anyone). So can I ask that in the future, even if the article says "oversight" you refrain from using the term in your forwarded messages :-)". Farber responded to this. "My standard reply is no one from ICANN has taken the initiative to take the press to task for such misunderstanding. When they do I will forward it to IP [along] with all other such misperceptions." At 9:18:26 on Sunday August 29, Esther Dyson responded to Farber:

"Why does it need to be ICANN itself who does this? Does no one else have the right to correct misconceptions? <g> Regardless, may I please ask you on behalf of ICANN to avoid the use of oversight in referring to ICANN outside of direct quotes? (By all means please send this to the list.) Thanks, Esther"

In looking at the amazing lengths to which Esther just went, we have quite a wonderful example of ICANN’s continuing sensitivity to its image problems. Calling ICANN the Internet’s Oversight Board was not a ‘misconception’. It was in fact an accurate analysis by Jerri Clausing of the New York Times. Clausing has been watching what they do as well as what they say they are doing. ICANN’s protestations aside, anyone who has followed this carefully is well aware that ICANN is creating an extensive framework for Internet policy oversight. That ICANN is so enormously sensitive about this speaks volumes about their desire to manipulate public opinion in such a way that understanding of where they are going does not arrive until it is too late. The sad story is that if one reads only their point of view, they look reasonable. The Markle Foundation, showed up in Santiago in all innocence, and a key question is will the Foundation be interested in assisting ICANN with its "democratic" goals. The sadder story is that, if one does not spend an inordinate amount of time following the complexities of ICANN ‘s actions, one will never understand why those of us who do invest this time are extremely upset with them.

In July the Commerce Department told ICANN to open its meetings. ICANN said it would open its Santiago Chile Board Meeting at the end of August. The statement was immediately interpreted in the press as a commitment to open all its meetings. ICANN continued to hold closed meetings up to the Santiago board meeting.

On August 26, Elizabeth Wasserman writing in the Standard , captured the essence (http://www.thestandard.com/articles/display/0,1449,6090,00.html) of ICANN’s arrogance. "After the meeting, Dyson said she was hopeful that the ICANN board would

continue to keep its meetings open. But another board member, Hans Kraaijenbrink, of the Netherlands, didn’t share Dyson’s sentiment. "I felt like I was in a play ... performing an act," he said. He added that most of ICANN’s discussions about the resolutions in Santiago came before the open meeting.

On BWG mail list an observer asked: When the ICANN "open meeting" occurred, was there any indication that it was truly an open meeting, or did it seem as if the decisions had already been made, and the board members were just going through the motions for the lights and cameras? A second observer responded: It was pure dog and poney. They had significant evidence that the Board had met two evenings before for dinner and decided everything.

Observer 1: Were any of the votes contested?

Observer 2: None...most were not even discussed. It was pure pro forma. It was so blatant, it was probably intended as a message that pushing them to hold open meetings was irrelevant because they will do everything in secret anyway.

Observer 3: as observer 1 said, there was obviously very little discussion about most of the motions apart from Dyson & Kraaijenbrink. The others generally had to be prompted by Dyson to say anything. We all remember Kraaijenbrink’s warning in Cambridge last November that if you make the meetings open, they’ll just go and do it all behind closed doors anyhow. Because the minutes are so vague we don’t really know what happened in previous meetings bar the fact that most of the votes seem to have been unanimous. The fact that between their announcement that the meetings would be open and Santiago there were 2 closed phone calls at which substantial financial decisions were made is still a mystery to me. Also towards the end of the meeting they said in 2000 they’d like to get it down to 3 physical meetings, so less time for openness and more closed phone calls.

Wassserman, in the same Standard article, noted: The next meeting begins on November 2 in Los Angeles. Subsequent meetings will be in Africa starting March 7 and Yokahama, Japan, starting July 17. "I hope it was clear to people that we did actually discuss issues," Dyson said. "Despite all this stuff about the Internet, face-to-face meeting really does help foster consensus." ‘

Ellen Rony (co-author of the Domain Name Handbook) remarked: "There was NO public consensus for extending the terms of this unelected, unaccountable ICANN board. Check the public record. There was no consensus for Greg Crew’s intermediated At Large Council selecting/electing the At Large members of the ICANN board because this proposal, as stated, was not posted in advance of he meeting.

COOK Report: Readers may want to note ICANN’s refusal to use the internet to hold the meetings creates a situation where in the name of global fairness they hopscotch from Boston, to Singapore to Berlin to Santiago to Los Angeles to Africa, and then to Japan. Expecting to tax those whom it regulates, ICANN chooses the most expensive hotel in Berlin. Those who are trying to keep an open process and who represent real non profits or small business are forced to chase ICANN to all continents to attempt to influence its development. Several who went through the meeting circuit through Berlin gave up and did not attend Santiago. However two newcomers in Santiago were the Markle Foundation and Center for Democracy and Technology.

On August 30 Jeri Clausing wrote in the New York Times: "A small core of representatives of consumer and nonprofit interests made the trip to Santiago, both to monitor the controversial board and to begin planning an outreach effort to rally other nonprofit groups to get involved in Icann. "There is a huge gap" in representation at the Icann meetings to date, said Davidson, contending that Icann’s oversight of domain names and other Internet policy issues has the potential to "chill speech on the Internet." Andrew L. Shapiro, a senior advisor to the Markle Foundation, a New York-based organization that underwrites projects it deems to be in the public interest, said his group coordinated the trip for nonprofit groups, as part of Markle’s recently announced five-year, $100 million commitment to become more involved in digital communication issues. Other groups attending under Markle’s aegis included representatives from the American Library Association and the American Association for the Advancement of Science. "Ultimately, the domain name system is about your ability to be seen and heard in the digital age," Shapiro said. . . . . Shapiro said that he and others were concerned that the "train is leaving the station before everyone could get on board." "If this is the constitutional convention for cyberspace," he said, "it’s as if they started the talks in Philadelphia without half the colonies.""

Shapiro’s statement that "the domain name system is about your ability to be seen and heard in the digital age" is reflected in the Sept. 6th Business Week, where Mike France has written an article that is far more honest than most press coverage. Toward the end he states "domain names are starting to be viewed as a potentially powerful method of getting Netizens to obey the law. When people buy names for their Web sites, they could be required to sign a detailed contract obligating them to comply with a certain set of rules governing the sale of products, the use of someone else’s intellectual property, the display of sexual content–you name it. If they violated the terms of the contract, they would forfeit the domain name. That may not sound like a particularly serious penalty, but on the Internet it’s a death sentence.

While this may sound far-fetched, it appears to be the most efficient way of enforcing the law on the Net. Already, ICANN is contemplating forcing applicants for new domain names to agree to a set of rules blocking so-called cyber squatting–the practice of registering well-known corporate brand names as domain names before the actual owners have a chance to do so. ‘’After all the talk over the past few years about how difficult it will be to regulate conduct on the Internet,’’ says David Post, a cyberlaw specialist at Temple University School of Law, ‘’the domain name system looks like the Holy Grail, the one place where enforceable Internet policy can be promulgated without any of the messy enforcement’’ problems."

Readers had better stop and think about what ICANN is up to. Indeed what IBM and MCI would like is their own unaccountable pseudo-legal system. The prototype is already there with the ICANN registrar accreditation requirements. ICANN gives itself essentially a blank check to decertify a registrar at will. Cerf and Robert have made it clear they want a uniform global framework for doing business on the net. If IBM or MCI have a problem, or if anyone from big business has a problem, rather than have to litigate in perhaps more than one country, the ICANN rules can apply the global fix. See http://www.icann.org/ra-agreement-051299.html How convenient.

Cerf, Patrick, Dyson and Roberts are acting to create a situation whereby an inter governmental mechanism out side the legal system of individual nations could disenfranchise any internet business any where in the globe that they disliked. Just as we have globalized the economy to give corporations the upper hand in running a new, unified global economy, ICANN is here to globalize cyberspace on behalf of the trade mark interests behind it. Never mind that some small businesses in the United States or Europe may want the protection of the legal system as afforded to the by the laws and culture of their own country. If ICANN wins, the little guy looses. Remember ICANN as " the one place where enforceable Internet policy can be promulgated without any of the messy enforcement’’ problems," and John Perry Barlow’s declaration of Independence of Cyberspace has shockingly hollow ring. As Post earlier warned us. We are the frog in the pot that doesn’t realized it's being cooked as the water temperature is raised.

ICANN has immense power behind. Nevertheless, it still acts in such a way as to leave nothing to chance. At its Santiago meeting the ICANN Board took actions which will ensure that its membership (should it ever acquire any members) will never have any means of making ICANN as a corporation accountable to anyone. Through a roundabout series of maneuvers recounted below, ICANN has adopted a strategy that will enable it to define its members in a way such that they do not have the statutory rights normally granted to members by the "public benefit" corporation law of California under which ICANN was incorporated. ICANN found an ambiguity in California law which allows a "public benefit" corporation to call someone who only participates in the "designation or selection" of board members a "member" of the corporation.

If however such a corporation permitted its members to participate in the "election" of board members, then that corporation would be choosing members that would get the full range of rights granted to them by statute. An ICANN legal analysis paper listed some 13 areas in which what they choose to call "statutory members" have real powers over the board of a public benefits corporation. Highly significant among these was the power to bring a "derivative action against the corporation without in some instances having to post a bond." In other words an aggrieved portion of the membership could bring suit against ICANN for dereliction of its duties under California statute. Moreover they could do so with minimal expenditure of funds. Never mind that derivative actions under the California public benefits corporation law are almost unheard of.

ICANN agreed with great reluctance to being saddled with a membership. But its apologists have always held out critics shouldn’t worry because ICANN "members" would elect nine of the 18 members of the ICANN Board which would counter-balance the special interests of the supporting organization board members. Of course when joined by Mike Roberts as CEO, the ICANN, the member elected board could be outvoted anyway.

However, to ICANN and its supporters, the critical importance of controlling events, no matter what the cost, is so great that the board took the following actions to ensure that ICANN will remain under the control of its current cabal for the next year.

1. It passed a resolution to extend the term of the current un-elected board for another year. This way, even if nine supporting organization (SO) board members can join ICANN by the end of this year, the Dyson, Roberts, Cerf controlled, appointed board will stay in power.

2. It accepted the recommendation of the membership committee that the membership would not be constituted until 5,000 people had registered as members, been vigorously checked as to identity and residence, and balanced out with sufficient geographical representation to ensure that good sounding standards of political correctness had been attained. It also suggested that other Internet related organizations (like ISOC) could be called upon to produce ICANN’s members.

3. It decided that the membership would not elect the nine at large directors but would instead choose an at Large Council. One that would "select" the nine at large directors. Note carefully the use of the word "select". Not elect. A huge difference under California statute and one which means that members of ICANN will be utterly without any significant power. Specifically it asserted that "the At-Large Council shall consist of a maximum of 18 members, selected pursuant to an election process to be developed by the President and approved by the Board."

4. Now "the At-Large Directors should be selected by an At-Large Council, the members of which are directly elected by the at-large members of ICANN". Note again the use of select not elect, and note again that when the council itself is mentioned above it is to be "selected pursuant to an election process."

5. The 18 at Large Council members are to be carefully gerrymandered. Of the members of the At-Large Council, at least one and not more than two per region shall be elected directly by the residents of ICANN’s 5 defined geographic regions, with each regional Council member elected by the residents of his or her region. The remaining Council members (no more than eight) shall be elected globally by all ICANN At-Large members. A candidate for a regional At Large seat must be a citizen of a country located in that region. No two members of the At Large Council elected from the same region shall be citizens of the same country.

This will be an ideal way to ensure that members of the at large council will be unlikely to be friends or allies and therefore will be more subject to staff control in coming up with names for at large directors. The process that Cerf on behalf of the GIP, Sims on behalf of his GIP masters and Roberts and Dyson have followed will ensure that ICANN can continue as an impenetrable black box governing the Internet according to the wishes of their corporate masters, the trade mark lobby, the ITU, and the faceless bureaucrats behind the GAC (Government Advisory Committee).

It is likely that only congress could do anything about this state of affairs. However when Bliely intervened in July, NSI’s incompetence lost it the momentum it had lobbied hard to gain. At the hearings NSI did nothing to counter the ICANN assurance that the stability of the Internet depended on ICANNs success. Sources, however assure us that ICANN and its banker, the GIP, were much more careful, bringing Vint Cerf up to the Hill to be available for one-on-one sessions with committee staff to explain why the internet would crash without ICANN.

On August 18 Karl Auerbach (who is both an attorney and a network professional) when asked what would happen in his opinion should ICANN fail: Momentary panic, nothing long term. As far as the domain name system goes, the TLDs will continue to operate, their registrars and registries (such as Network Solutions) will register and issue invoices. The TLD servers, which are not under ICANN’s control anyway, will continue to answer queries."

"The ICANN operated root system may wither and die. But anyone who wants can establish their own independent system of root servers can do so. Indeed, I have already seen some interest by large providers in establishing their own DNS root systems to ensure that their customers have no service disruptions. If the ICANN root system failure occurred as a sudden outage of indefinite duration . . . then I would expect all the print, TV, and radio media to react, . . . and publish revised "cache" files so that all the intermediary DNS server operators could repoint their machines to a working alternative root system, such as the already running SuperRoot system."

‘Switching takes all of about one minute of administrative time per intermediary server. As for IP address allocation, ICANN isn’t really involved anyway. In other words, ICANN is very dispensable. In fact, an ICANN failure could lead to improved net reliability. Today, the net is run with essentially a single monolithic DNS system. That system represents a single point of global failure. Yet, if ICANN were to fail and people were thus forced to create and to jump onto alternative root systems, it would become immediately clear that the only thing that prevented the deployment of multiple root systems was our own lack of imagination."

Vint’s expressions have a tone of desperation these days. Brock Meeks has documented Cerf’s strategizing about getting a million-dollar loan from IBM and MCI. According to Meek’s MSNBC article, Cerf laid out the following scenario in email obtained by MSNBC: "Knowing that we [ICANN] have the ability to back up the campaign with a rescue effort in the short term," we should keep news of the loan under wraps while making a public appeal for money to corporations based on the premise that "ICANN must succeed or Internet will be in jeopardy," a premise that ought "to play well with any company whose stock price is dependent on a well-functioning Internet."

A careful reading of the documents posted on the ICANN web site six days before the meeting would have been enough to enable a successful prediction of how ICANN would act to render its membership meaningless. The only problem is that unless one reads very carefully and has contextual knowledge one won’t realize that the powers of a membership have been rendered meaningless.

If one starts with and reads only the staff report on membership on finds only that staff is worried that ICANN members should not have more powers that the supporting organizations which can only select or designate board members. So in fairness it proposes that the membership be allowed to do the same thing -select or designate and not elect.

The membership analysis document is the one where ICANN shows its true colors. Under the statute members who elect directors actually have some real powers. They must approve most amendments to the articles of incorporation; membership lists and accounting books and records and minutes must be made available to them; members may amend the bylaws; Directors elected by members may be removed by members; Members can bring legal actions to determine the validity of elections; when directors are to be elected a meeting of members must be held.

And then the most worry some thing of all: "Members may bring derivative actions, subject to the usual conditions. No bond shall be required if enough members bring the action." In the words of an attorney familiar with the California statute (Karl Auerbach): "The theory behind a corporation is that is a merger of several disparate elements - shareholders (owners), directors, management (officers), and (sometimes even employees are thrown into the conceptual stew.) It is recognized that there is a tension between these elements. And then there is the conception of the "corporation" as some sort of separate entity, above and apart from those groups I just mentioned. In a derivative action, the "theory" is that the corporation is the plaintiff against one of those groups. In practice it is an action that is initiated by a shareholder against the corporate directors/management but which is filed in the name of the corporation and, often, because the corporation is the plaintiff, paid-for by the corporation. There is a parallel interesting situation going on right now. Radio station KPFA, owned by the Pacifica Foundation in Berkeley, California is involved in a substantial dispute with its listeners and "members". Pacifica is, I believe, a California Public Benefit/Non Profit. I caught the end of a news snippet yesterday in which Pacifica being legally challenged by its members."

A member of the Membership advisory committee also wrote: [In a derivative action] "the complaining shareholder must show that the wrong has caused damage to shareholders generally, not just to himself in particular. The corporation, however, must pay all the expenses of derivative actions, unlike normal litigation in which costs may be assessed against the party that loses. In a large, profitable organization, derivative suits can be taken in stride, but for a smaller, less well funded corporation it can result in paralysis or bankruptcy, even if the corporation wins the suit. It has a history of being used as a political tool by opposing factions and the MAC didn’t think this cost was one which contributed to the stability of the Internet. Nothing about this proposal would prohibit anyone/any member aggrieved by an ICANN action from suing the organization. This proposal is only meant to place the cost of that litigation where the court deems appropriate, rather than on the organization."

Now the membership staff report (http://www.icann.org/santiago/membership-staff-report.htm) states "Under California law, a nonprofit corporation can, but need not, have "members." If it chooses to have members, those members can be so-called statutory members, with rights as set forth in California law, or they can be non-statutory members, with powers specified in the Articles and Bylaws."

The report also recommends: The Board should create an At Large Membership Council with duties and responsibilities to the At Large membership and to the ICANN Board analogous to those of the Supporting Organization Councils and their respective organizations. The reason for this recommendation was given earlier in the report.

" There should be a general parity between At Large "members" of ICANN and other stakeholders participating in ICANN through the Supporting Organizations with respect to matters such as initiation and approval of changes to the bylaws and means for seeking relief with respect to ICANN actions."

The legal analysis http://www.icann.org/santiago/membership-analysis.htm contains the real reasons for the above waffling. But before examining them, we need to finish with the staff reports conclusions on membership. According to section "VIII. Rights of Members" in the Staff report "Under California law, a nonprofit corporation can, but need not, have "members." If it chooses to have members, those members can be so-called statutory members, with rights as set forth in California law, or they can be non-statutory members, with powers specified in the Articles and Bylaws." This glib statement that they can be non-statutory members under California law is not substantiated for the text of the membership documents. Rather it is implied by ICANN’s attorneys. We shall get to this in a moment.

The membership staff report goes on to say: "Even if an organization has statutory members, it may limit or condition various powers of such members. Thus, a threshold decision for ICANN is what powers or "rights" should its members have and how should they be exercised?" It concludes that: "Consistent with the staff’s recommendation that At Large members have no greater rights than other participants in ICANN." While the staff report goes on to make recommendations, what it says nothing about is why its "at large" general members need parity with members the general supporting organization members. The real reason is found only in the separate analysis, namely: that ICANN cannot afford to have any members that elect directors. Such members would be have the full panoply of legal rights described above.

Now the supporting organization members have already been exempted from this right by having the power only to select or designate directors… they have been deprived of any right to participate in any elections of directors because such designation would turn them into statutory members a designation that ICANN cannot afford to allow.

The membership legal analysis document concludes by offering the Board advice on how to create a powerless membership by creating what it calls Nonstatutory Members. "Normally, the purposes of having Nonstatutory Members are to, for example, allow people to join a nonprofit corporation to make contributions or get on a mailing list or play golf or the like – not to select directors. Thus, Nonstatutory Members as contemplated as a possibility for ICANN would be an unusual approach, and could not be based on clear legal precedent. [Nevertheless] The following sets forth some possible structures that ICANN could use to try to create a Non statutory Membership:

1. As described above, California law defines a "member" (i.e., a Statutory Member) as "any person who, pursuant to a specific provision of a corporation’s articles or bylaws, has the right to vote for the election of a director or directors . . . ." (emphasis added). Consequently, ICANN could simply set up its membership by Board resolution rather than in the articles or bylaws. The bylaws would presumably say that the At-Large Directors will be selected pursuant to a means to be determined by the Board. One downside to this structure is that any Board could rescind or alter a prior resolution and, consequently, the structure would be subject to easy change (although perhaps this could be addressed through a Bylaw provision saying that Board resolutions relating to the formation of the membership and voting procedures can be altered only by a two-thirds vote).

2. Another possibility that would not leave as much discretion in the hands of the Board would be to form an "Individuals’ Supporting Organization" that has a general assembly (basically any individual who wants to join and meets whatever membership criteria that are established). The general assembly could select a governing council that could then designate the directors. This structure, which is similar to the other Supporting Organizations, has the disadvantage of separating individual members from the actual director selection to some extent, but this is probably essential to the validity of any NMS.

Perhaps there are other devices that more creative minds could devise. Unfortunately, there is little precedent to guide this analysis. Of the above, alternative 1 seems most likely to be found to be consistent with California law. However, as noted, it may be subject to change and thus may not be a stable long-term solution. Alternative 2 is more stable and also seems consistent with California law, although it should be clear that this judgment is based more on logic than legal precedent."

COOK Report: What ICANN has essentially done is to chose option above creating an Individual Members Supporting Organization complete with an "At Large Council" which selects the 9 membership directors and the Names Council selects the 3 DNSO directors. The council members will of course be much easier for Cerf, Roberts Dyson and the GAC to capture than the entire body from which each council is selected would be.

On August 27 a mail list member cited the resolution that that the At-Large Council shall consist of a maximum of 18 members, "selected pursuant to an election process to be developed by the President and approved by the Board that is consistent with the following principles." Then the member asked: "Selected pursuant to an election process". Does that mean elected or selected? . . . Anyone care to elaborate?

Ellen Rony (co-author of The Domain Name Handbook): I pressed this point in my remote comments to the meeting. The staff had recommended an At Large Council as a committee *appointed* by the board to "assist in ongoing At Large membership issues such as outreach, recruitment." Greg Crew suggested the Council choose the At Large Board members. I replied that the At Large members of ICANN would never accept placing the choices in the hands of an appointed council, and George said the council would be elected, not appointed.

Now Crew’s proposal for interposing the At Large Council was never posted for public comment, although it comprises a substantive change in the membership voting procedure. The result is that the At Large membership won’t even be able to hold direct elections. Instead, it will be voting for 18 members of an At Large Council who will SELECT the nine At Large Directors. Of the members of the At-Large Council, at least one and not more than two per region shall be elected directly by the residents of ICANN’s 5 defined geographic regions. [Editor: The remaining criteria for eligibility are enumerated in point 5 above.] The purpose of all of this restructuring is apparently to create a non-statutory membership (insert legal mumbo, jumbo here), which means that ICANN will be immune from being subject to a derivative action by its members.

So, to summarize, the individual representation must be 5,000-strong and geographically diverse to be able to vote, and when that threshhold is achieved, it chooses not its board members but its intermediated representation, which is regionally diverse, and they, in turn, select (not elect) representatives to the board who themselves have not been able to participate in the process of recommending policies to be submitted to the board through the DNSO.

The suggestion of an intermediated At Large Council was presented by board member Greg Crew on August 25. Although the staff report on At Large membership floated the idea of an At Large Council <http://www.icann.org/santiago/membership-staff-report.htm>, that was to be a Board-appointed committee to new committee to "assist in ongoing At Large membership issues such as outreach, recruitment, authentication, and election procedures." Thus, this substantive change in the At Large membership structure was NEVER posted in advance for public comment and feedback, in violation of ICANN’s own bylaws.

On August 28 Rony continued: Derivative actions aside, the mechanics of this At Large process are curious. Someone(s) will be tasked with maintaining a tally of membership until the magic 5,000 threshold is met. That could take three months, it could take six. It might never happen. That also requires some form of authentication, to avoid the people who claim proxies to 94,000 stakeholders or who submit multiple applications from various computer networks.

Once that is accomplished and public notice of impending elections is posted with ample time to be in accordance with bylaws, people who are interested in running for this At Large Council have to be nominated, seconded, and campaign. Meanwhile, the people who want to be on the Board, not the Council, have to schmooze with the Council candidates so that they will be elected/selected by this intermediate group.

For example, if Karl decides to run (I am hoping!), I would like to second and support his nomination. He has the mix of technical expertise, legal knowledge, ethical values and commitment to open process that this board badly needs. But he cannot campaign directly before the At Large members, and now we are all denied an opportunity to vote directly for him. The At Large Council has no obligation to elect/select a particular candidate. They can meet in private and determine their own slate of board members. This structure is insulting.

At the very end of August we had the following discussion with Karl Auerbach.

COOK Report: I have heard it said that with the Council model ICANN claims that nothing can prevent them from being sued. The plaintiff is forced to pay for the expense of the suit and ICANN’s bank account is protected.

Auerbach: I wouldn’t accept that position without further information. There is the issue of standing to bring an action. The removal of "statutory" membership may also remove standing. For instance, if one is not a "statutory" membership, does one have standing to bring an action should the board members approve less than arms-length contracts between the corporation and a nearby-party?

Two points. First, even if the plaintiff were to pay, if there is no standing, then

the plaintiff can’t even bring the action at all. Second, derivative actions do usually require a financial undertaking by the plaintiff, such as the posting of bonds. Third, the theory of derivative action is that the corporation’s board has screwed the corporation and hence the corporation is the real plaintiff. If it is indeed the case that the board is screwing up, then why should the member have to pay to correct the board’s wrongs? Also note that the statute states that the defendant can block the action by demonstrating that the action benefits the plaintiff alone and is not for the general benefit of all the members and the corporation itself.

There used to be, and perhaps still is, litigation cost insurance. I haven’t seen it used much and maybe it was something around only during the wild 80’s and early 90’s. But the point still is that derivative actions have a number of up-front protections built into the statutes that discourage actions that are frivolous. Those protections are the result of years of battles in the California legislature between well financed corporate groups (who don’t like derivative actions) and somewhat less well financed shareholder groups. California has even recently added several new bars to against derivative and shareholder actions in the for-profit area. So to think that derivatives are the easy tool of the frivolous plaintiff is not something that I agree with."

It only takes one individual A-L member from an SO to bring the [derivative] action. And if ICANN is indeed so concerned about the SO’s, well they do have statutory membership already – in the ASO and PSO they directly vote for board members, so they already fit the "statutory member" definitions. The members of the DNSO names council seem also to fit the "statutory member" provision and thus can bring derivative actions.". But from that premise I don’t see how one can reach the conclusion that: "The SOs permit organizations to join. The At-large does not." If the SO’s are to represent interests, then even individuals should be allowed to join. But they are not. And even for-profit corporations are precluded from the PSO and ASO despite their massive interest in the latter area (and sometimes significant interest in the former.)

In our own country, we can see the tremendous political power of corporations despite the fact that they don’t have the power to vote. So I’m not to worried about making sure that corporations will have a voice, they have it, with a 25,000 watt power supply behind each wall of loudspeakers.

Greg Crew’s proposal that the At-Large have a policy voice is a bit of Pollyannaish thinking. The critical decisions on policy are made in the SO’s. Once an SO has put together a policy proposal, the SO will not be willing to undertake to again reconsider and rework it. That puts the At-large into really a position of being able only to take the SO proposal as a lump, all or nothing. That is a quite different thing than allowing individuals to get right into the policy making arena in the SO’s directly . . . . .

As a concrete example consider the DNSO WG-A proposals that were just adopted by the board (despite several procedural errors in the DNSO.) How would an At-large policy body deal with that? Would things have to be passed by both an SO and the At-large? (And I mean the full at large, not this ill-conceived council.) Would the At-large have the ability to rewrite the whole thing? Who would resolve the differences? An at-large/SO conference committee attempt to draft a compromise followed by re-voting in the SO and At-large? I’d be happy to have the at large in a Senate kind of role, in which *NOTHING* ICANN does could have effect until approved by a majority of all at-large members (not some council). And wait to see how the corporations in the SO’s will then rush to pack the At-large then with their people.

COOK Report: But the proponents of ICANN’s action claim that California law allows corporations to decide rights their members may have. Moreover, they may have different classes with different rights.

Auerbach: Yes, corporations can pick and chose. But ICANN has a special history in which it is supposed to represent the interest of those involved with the Internet. ICANN has taken a course to pick and chose rights that exclude any but commercial interests, allowing only a small voice for non-commercial bodies, and barely a whisper for individuals. (It’s also not clear whether standing to bring an action is also severed along with the right to directly elect board seats.) Standing is jurisdictional, the board can not put language in the bylaws or articles that confers standing on someone who otherwise does not have it.

My gut feeling is that because of the intermediary voting council, the non-statutory member’s interest is diluted to the point where they could be said to have really no special interest or relationship with the corporation or upon the matter in dispute upon which to base standing. From my own perspective, ICANN’s attempt to further isolate itself from responsibility for its actions is a violation of it’s basic responsibility as defined in the white paper to be "accountable".

An interesting twist to the fear of derivative actions and the "statutory membership" mess is that there are, in fact, statutory members in existence: namely the Supporting Organizations. I doubt that the new statutory members found in the PSO would exercise their powers, maybe the ones in the ASO would. But, here’s the really interesting part: the various names council members of the DNSO are "statutory members" because they vote directly for ICANN board seats. That means any constituency can appoint NC members who can, in turn, be their designates to bring derivative actions. (Thus, for example, the gTLD constituency, via its person on the NC could initiate a derivative action and get ICANN to pay for its improper exclusion of the other two gTLD seats in Berlin.)

But here’s the kicker: Thus if the IDNO were recognized as a constituency, it could appoint some names council members who could, as statutory members, bring a derivative action. So the SO’s get to play in the derivative action game, and ICANN isn’t fearful. But let those untrustworthy individuals in, and ICANN starts building barricades.

A day later Auerbach added: The standing issue is not clearly resolved in the Corporations code (although my own reading indicates to me that standing is not conferred to non-members even if the corporation grants-back several of the privileges that are removed.) However, it is clear that what the ICANN board did do was to strip the membership of virtually all powers - The corporations code requires that the corporation explicitly designate which of the stripped powers it will add back. But ICANN it has added back not even one of them.

COOK Report: It is claimed that the Board’s established Internal Review Procedures would be an acceptable alternative to litigation.

Auerbach: I disagree. The California derivative action provisions for non-profit/public benefits are pretty straightforward. Indeed they are rather more streamlined than the ICANN review process. Under the California law, The plaintiff files an action. The plaintiff must allege (and not do so falsely) that he/she is a "member" and has made a real (and I would infer, good faith) effort to resolve this with the defendant corporation.

The defendant can then request a hearing in which the issue is whether the plaintiff has a chance of success. The burden is on the defendant (the corporation) to demonstrate that "That there is no reasonable possibility that the prosecution of the cause of action alleged in the complaint against the moving party will benefit the corporation or its members, economically or otherwise." (That covers a lot of ground and would tend to examine the motives of the plaintiff as well as the probable merits of the action.)

The defendant can cause the plaintiff to post a bond of up to $50,000 to cover the defendant’s costs. The matter then proceeds. (It’s very close to the same procedure that is used with California for-profits, a group of corporations which I might mention have not been destroyed through abusive derivative actions.) Of course, the question goes further: Why does ICANN not fear derivatives from members that arise from the SOs (who have a direct vote for the board)? It strikes me as yet another instance of ICANN’s implicit faith in the good graces of corporations and its Marie Antoinette-like treatment of the unwashed masses.

The legislature of the state of California has decided that it [bond that individuals are required to post] is an adequate protection for the corporation. ICANN knowingly decided to incorporate in California under those laws. And I have not seen non-profits (or for-profits) in California becoming the frequent victims of derivative actions, whether fraudulent or not. The theory is that the corporation is bringing the action on behalf of all the shareholders or members. That’s why under California law it is procedural defense to show that the benefit of pursuing the action will not benefit the corporation or its members. (5710(c)(1)) I’ve looked even more closely at the California statute, and it is pretty clear to me that even if the corporation grants-back several of the items that are lost because of this "non-statutory member" status, that standing is not conferred.

The reason I reach this conclusion is that most of the sections that talk about bringing actions use the word "member". And even if the corporation grants back some of the rights that have been blocked, the person is still not a "member". The issue of abuse of derivative action is one that can easily be blown way beyond its actual scope. As I’ve mentioned, none of the several non-profits with which I have been involved, nor any of the start-ups, have ever been involved in a derivative action, whether unwarranted or not. And if California found that’s its start-up companies were being killed by unwarranted derivatives, the state would quickly take corrective action. Start-ups are the state’s golden goose, and if derivatives were a real problem, we’d see the legislature fixing it.

While a trial could cost $100,000 certainly, the loss of a domain name can run well in excess of $100,000 in lost business. Yes, litigation is expensive. And a $50,000 bond isn’t going to cover the full costs of a full-blown action.

Had ICANN created a forum in which all interests could have participated equally, then perhaps I would have some sympathy for it. But since ICANN has acted with what I regard as clear malice towards individuals and non-commercials, not to mention massive disregard for process or its organic documents, I have no sympathy for it, and believe that it needs to be a tightly reined as is possible. With no membership to whom they are accountable, ICANN has no reason to try to pay any attention to anyone. If a corporation acts irresponsibly, it should be liable for its actions whether it is large or small and whether it is non-profit or for profit.

Driven by their need for total control ICANN’s masters decided that they could not afford to risk loosing control of the board for the second year. With the stated goal of adding three board members from each of the supporting organizations by the early November meeting in Los Angeles, Dyson and Roberts would run the risk of being outvoted if there were a single defection from the hitherto monolithic unelected board. Therefore, leaving nothing to chance they decided to continue their terms in office and posted and then executed a resolution to extend the expiration of the Board’s terms for a full year from September 30, 1999 to September 30, 2000. This board given the proposal to stagger terms of replacement board members will clearly become self-perpetuating.

On August 24 Nick Lordi of Telcordia posted the following to the ICANN Comments list on the ICANN web site.

At first glance, one may consider the resolution posted at <http://www.icann.org/santiago/initial-director-term-resolution.htm> as merely exercising an existing provision in the bylaws. However, to have such a major proposal posted in such an innocuous manner less than seven days prior to the board meeting is inexcusable.

This resolution should be immediately withdrawn, as it does not conform to Section 3 of the bylaws, "Notice and Comment Provisions", which provide for "public notice on the Web Site explaining what policies are being considered for adoption and why;" and "a reasonable opportunity for parties to comment on the adoption of the proposed policies, to see the comments of others, and to reply to those comments".

First, the proposal does not explain "why" this policy should be adopted. There is no analysis, only the resolution itself is posted. Second, five days to post, review, and reply to comments does not represent a reasonable opportunity for comment. If the Interim board truly believes its services are needed for a longer period, they could volunteer their services on one of the many advisory committees.

As stated in the June 98 Dept. of Commerce’s Whitepaper <http://www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.htm> regarding the structure of the new organization, the new corporation should: "direct the Interim Board to establish a system for electing a Board of Directors" It is therefore clear from the Whitepaper that a major goal of the Interim Board was to establish a system for election of Board members. However, we have not yet seen such a system established, and this should not be used as an excuse to extend the term of the board for another year.

In conclusion, I believe this resolution should be withdrawn, since it does not conform to Section 3 of the ICANN bylaws, "Notice and Comment Provisions". However, with the board’s current term set to expire in 5 weeks, and no system yet established to elect a new board, an alternative is in order. A new resolution should be drafted, posted, given a reasonable comment period, and clearly address why it is necessary. Such a new resolution could be drafted along the lines of what Michael Froomkin suggested in his previously posted comments: "as an interim measure three board members agree to be chosen by lot to volunteer to resign, and that the Board replace them with new interim directors who better represent the diversity of views on contentious issues."

While I would suggest half the board members volunteer to resign, the number itself isn’t as important as the action. ICANN needs to establish trust, and such an act would go a long way in establishing trust.

On August 26 Lordi wrote: There were 12 comments posted regarding ICANN’s resolution on extending the term of the initial directors by an additional year. <http://www.icann.org/comments-mail/comment-initial-director-term/maillist.html> All 12 comments were against passage of the resolution, and several in fact raised serious concerns which warranted further discussion. Additional comments against this resolution were also posted to the Aug 25th "real-time" meeting comments http://cyber.law.harvard.edu/icann/santiago/archive/icann-public-meeting-comments-082599.html However, according to the Aug 26th board meeting notes posted at: <http://cyber.law.harvard.edu/icann/santiago/archive/scribe-board-082699.html> the resolution to extend the term of the board passed "without opposition".

Without opposition? All of the posted comments reflected opposition. Could the board please respond to the posted comments, specifically disclosing what discussion took place by the board regarding this resolution?

ICANN has stated on several occasions, including Congressional testimony <http://www.icann.org/dyson-testimony-22july99.htm> and its status report to the Department of Commerce, <http://www.icann.org/statusreport-15june99.htm> that it is a "consensus organization" reflecting "bottom-up governance" and that these principles "are the standards which the ICANN Initial Board has used to guide its policy development efforts". How can ICANN consider itself such an organization when it appears that the comments were not even read, let alone reviewed by the board?

On August 24 the GAC had a meeting from which the press was again barred. It made the following recommendations to the ICANN Board. With regard to principles for the delegation of management for country code top level domains:

1. The Committee reaffirmed its May resolution that the Internet naming system is a public resource.... (2). Accordingly, the GAC considers that no private intellectual or other property rights inhere to the TLD itself nor accrue to the delegated manager of the TLD as the result of such delegation. (3). The GAC also reaffirmed that the delegation of a ccTLD Registry is subject to the ultimate authority of the relevant public authority or government.

On August 26 Tony Rutkowski stated on BWG: The GAC has clearly produced a "legal finding" purportedly by 30 national governments acting collectively, that declares

"The Internet naming system" is a "public resource." It declares that all TLD related property rights don’t exist. In the somewhat loose field of International Law, this finding can be readily subsequently cited as customary international law. That this was done under no apparent authority, especially by the US participants; that it was done in secret without the slightest benefit of due process; makes this particularly egregious. As a lawyer and US citizen, I find this really offensive. Furthermore, I reject the notion that my DNS servers and zone files constitute a public resource.

The question is - what can be done. I’ve dealt with similar developments in the telecommunications and information field at the ITU, UNESCO, UN, and related bodies; as well as in the New World Information Order initiatives in the 70s and 80s, and global commons developments - Outer Space, the Sea, and Antarctica. On this particular matter, I know well how the game is played, and the old boys at the ITU and EU are playing it well.

In fact, you will note that in the most recent finding, the GAC is relying on a provision that just appeared in the "whereas" perambulatory section of their Operating Principles. This was bicycled in from the gTLD-MoU provisions. The same gang tried to stick it in the ITU 1998 Plenipotentiary Conference Resolutions relating to DNS - COM 5/15 - and was rebuffed in favor of the following watered down language:

a) that the methods of allocation of global and essential resources such as Internet domain names and addresses are a subject of concern for both governments and the private sector....

The US Delegation fell on their sword on this one because ITU Plenipotentiary Conference resolutions are treated by many countries as part of the treaty and therefore Public International Law. They tried to get the entire resolution killed, but in the face of strident lobbying by the usual anti-Internet troglodytes (EU, France, ITU Secretariats, etc) the above fallback language was accepted.

The name of the game here is to get the "public resource" language in as many international agreements as possible. If you can’t get it in the main text as a finding, you stick it in the perambulatory section and get it "creeped" down. ITU documents typically have four or more perambulatory categories to effect this game: conscious, considering, recognizing, and emphasizing. The next time you get an opportunity to "move the cause along," you simply begin citing all the different places the notion has been articulated in international agreements, and the ratchet up the force and effect in the new document.

As I mentioned, this scheme has been a long favorite of the ITU staff and constituents, because once it’s accepted as a "global public resource," it’s their turf and all the UN politics ensue. Especially when the GAC says that "ICANN’s legitimacy" is derived from the GAC, and the Dept of Commerce provides ICANN with their "authority." It’s also clear that the GAC crowd wants to get this all well settled now to serve as precedent, and while they have effective control of ICANN.

I would further argue, by the way, that for many countries, as long as the Internet remains a shared private network, under the commitments most of them have made under the WTO GATS, they cannot make such an intervention. However, the name of the game here with many of them, is to change the rules of the game.

On August 30 Rutkowski wrote to the IFWP list: Countries and their governments are a composite of many different ministries/agencies and individuals. All of them have overlapping responsibilities in the Internet law and policy subject area. Quite frequently, these entities have very different perspectives - often by design. By virtue of the GAC selecting only one kind of entity in each country, it significantly predetermines the resulting perspective.

For examle, one of the regulatory strategies originally employed in allowing the Internet to emerge internationally, was to effectively build a second international regulatory regime using the GATT organization to pull together all the more liberal finance and trade ministries, and effectively bypass the restrictive ITU and its PTT ministries.

Just consider the US. There are several different agencies that have a constant tension with each other. The FCC is an independent Congressional agency that typically represents the private-sector and market solutions, whereas the Dept of Commerce is an Executive Branch agency that represents the interests of the White House and other government agencies.

Who gets to represent the US in the GAC? Who gets to state what the US policy is and to enter into GAC agreements? There is yet a third branch of government in the US - the Judicial Branch - plus multiple specialized agencies for consumer interests, trade, etc. You will recall that in the DNS proceeding, the FTC staff actually separately filed extensive comments dealing the DNS non-profit issues. How do they get to participate in the GAC?

Whether by naivete or design, the GAC’s construction is fundamentally broken for this reason in addition to the many others.

The basics are straightforward. The Internet in large measure occurred the FCC around 1980 crafted a fundamental regulatory doctrine - that computer networks and services were not the proper province of regulation or even regulatory policy involvement. It even went to far as to forbid individual States in the US from being involved. The policy was also evangelized internationally and it produced many changes in policy around the world. (That policy in substantial measure was due to 1970s DARPA head and "Internet godfather" Steve Lukasik coming to the FCC as Chief Scientist in 1979.)

That policy wasn’t always popular, by the way. Even in the US, other government agencies like the Dept of Commerce strongly resisted - moving forward, for example, with attempting to de jure make OSI networking specifications and administrative arrangements the law of the land.

The White Paper states that governments should not be kept out of NewCo as users.

" ...the U.S. continues to believe, as do most commenters, that neither national governments acting as sovereigns nor intergovernmental organizations acting as representatives of governments should participate in management of Internet names and addresses."

The GAC as it has emerged is exactly the opposite of this White Paper specification. [Operating in secret] there are no minutes other than "Executive Minutes." The lists, all communication and ongoing work are all in secret. The interactions with ICANN are in secret. GAC requires participants to maintain secrecy. The word secret activity (which does not impute any legality, only degree of conduct) seems clearly appropriate here.

I don’t oppose government involvement in all Internet related activities. There are many kinds of Internet conduct that clearly invoke involvement. What I utterly fail to see is a need for a permanent intergovernmental body associated with the coordination of names and numbers that promulgates related global policy and law.

The GAC has recently promulgated an intergovernmental agreement declaring that all "the Internet naming and addressing system is a public resource," and on that basis decreed that all ccTLD registrars henceforth have no property rights of any kind. …. my DNS servers and zone files are my own private property, not a public resource. I’m … not suggesting that [governments] should be ignored. However, providing them with their own intergovernmental organization to meet in secret, adopt their own procedures, and promulgate Internet law and policy on whatever they choose - now that’s quite a different matter," Rutkowski concluded.

This section contains the beginning of Mikki Barry’s follow up answers to congressional questions found at http://minion.netpolicy.com/dnrc/82799cong.html they are worth reading in their entirety.

Question one of 13 asked Ms. Barry by commerce staff: (1) I understand that you participated in the Boston Working Group, who submitted a proposal to the Department of Commerce in response to the White Paper. When the Department of Commerce announced its acceptance of ICANN’s proposal, it also said that there were portions of other proposals, including the Boston Working Group’s which the Department felt might be integrated into ICANN’s governing documents. Do you think that ICANN sufficiently altered its articles and bylaws to reflect the changes requested by the Department of Commerce?

Answer: "Unfortunately, the bylaws and articles were hardly changed at all in response to the recommended changes, and those changes that were adopted have been largely ignored in practice. Many of the fears that both the Boston Working Group, and the Open Root Server Confederation expressed have indeed come to pass. Today, despite ICANN’s telling Congress that the Santiago Board Meeting would be open, other board meetings remain closed.

ICANN does not provide nearly enough prior notice or comment periods before adopting by-laws changes or other substantive changes. The ICANN board has failed to establish "on the record" voting. ICANN picks and chooses between constituencies and its executives make defamatory statements about those who attempt to participate in the process. (This writer is among those who have been subjected to such abuse.) ICANN has failed to replace the interim board with an elected board. Even worse, ICANN’s board now proposes to continue the unelected interim board until September of 2000. In fact, it posted its proposal to do so only few days prior to the Santiago meeting.

Perhaps most damning, however, was the utter failure of the ICANN board to address the creation of an individual constituency, or to mandate that individuals be allowed to participate in other, already formed and provisionally approved constituencies. Neither individuals, nor non-commercial entities have any voice whatsoever in ICANN. Both the BWG and ORSC bylaws clearly mandated that ICANN fully admit individuals and non-commercial entities.

But it goes further, the ASO (Address Supporting Organization) and PSO (Protocol Supporting Organization) exclude any but a few select entities, entities which have not public accountability, are largely neither transparent nor open. Given that ICANN has repeatedly mentioned the possibility of charging for address allocations, a closed ASO could become even more non-competitive and dangerous than the irresponsibility shown by ICANN regarding the DNSO (Domain Name Supporting Organization). The new ICANN Board ignored the concerns of BWG and the ORSC."

We hope that the period of current stress is driving the Internet toward the adoption of multiple roots. On September 3 an attorney in BWG wrote: There’s certainly no way to know what will happen, but at this very moment there’s no particular legal barrier to alternative roots–just the problem of very few people (or ISPs as proxies) wanting to adopt them (or even knowing about them).

Karl Auerbach replied: "That’s sort of my line about multiple roots... that they will naturally tend to coalesce into, if not a single system, at least a set of systems that are fungible in terms of the name resolution service.

(That’s why I looked to see what business values could be obtained by establishing an alternate root. And there do appear to be reasons one could build a viable alternative root even though the basic service offered is the same as every other root’s. It’s the ancillary services to the users or to the provider that make the difference.)

But that gets me to the basic question of "what if ICANN fails". The more I think about it, the more I conclude that the shock will drive innovation. Address translation technology could readily result in distinct internet clouds, each with their own address spaces that are connected by massive address translators (NAT). Right now this is not possible due to the massive horsepower required and the fact that a some applications don’t behave well in the face of NAT. On the other hand, VPNs (Virtual Private Networks), firewalls, and NATs are making it acceptable to think of terms of multiple IP address spaces.

Same for DNS. The cavebear site is using the Superroot and is having no name resolution problems. (It also is acting as a secondary DNS for several folks who are in the legacy root, again without any problems.) The pending tldns.com and other root services should add to the recognition.

What I find "interesting" is that the really fundamental service of the net, that of getting IP packets from hither to yon, i.e. routing, is not run as a unified system with unified control, but, rather, is run by separate ISPs, in competition with one another, who make routing consistent only out of their own enlightened self-interest. If routing doesn’t work, DNS doesn’t matter. Yet nobody is proposing an ICANN over routing. Why do do we really need an ICANN over the lesser service we call DNS? All-in-all, a failure of ICANN might simply be a good demonstration that it really isn’t needed, at least not in the DNS space," Auerbach concluded.

A person intimately familiar with all aspects of the DNS wars told us: "Increasing competition in Domain Name registration is trivial and could have been accomplished easily by now. For instance, an association of the existing 250 plus top level domain registries (country code and GTLDs) could agree to manage the legacy root or a new competitive root. It could create (say from 500 to 5000) new TLDs on a first come -first served basis with minimal conditions such as (i) payment of a nominal (perhaps $1000) annual fee and posting of a small (say $10K) bond (ii) no more than three TLDs per individual or entity (iii) a contractual commitment to escrow (daily) a copy of their zone file with the association (which could be used as the authoritative zone file for the TLD in the event that a registry failed).

To those who say that the result of such an activity would be a modern version of "the Oklahoma land rush", I’d point out that in that earlier activity from American history, some were successful, some failed, wealth was created and the country and most of the people involved prospered from the process. That’s not a bad outcome.

To those who object to the very idea of companies owning TLDs, we simply disagree. I come from a culture where private ownership of resources is generally agreed upon as a model which works. I simply don’t care if some make money and some don’t. As to the whining about the perceived "lock-in" problem? Frankly, with the ability to register inexpensively (compared to the other costs of maintaining a net presence) redundant registrations (in two or three TLDs) would provide adequate safeguards against the dread "lock-in". No competent individual would structure a plan for a net presence without a fallback position in any event.

However with ICANN, instead of allowing numerous new TLDs to bloom independently and be allowed to flourish or die, a whole new unnecessary industry model had been developed by ICANN but no new TLDs have been created. (Control driven economics are a proven failure except in the minds of academics, bureaucrats and economic planners.) Personally, I’ve declined to adopt the registry/registrar semantic developed by the "ISOC ICANN, IANA" groups. Among other reasons, I’ve rejected it because it introduces complexity, inefficiency and the continuing need for "supervisory" involvement. In fact, everything about the ICANN selected business model seems deliberately designed to involve the central organization (ICANN) in ongoing oversight and management of registration process (which is absurd). It’s a regulatory bureaucrat’s dream. It’s also unnecessary.

In the presence of abundant competition (which could exist but which ICANN refuses to create) there is no need for it’s constant involvement. These folks are trying too hard to create permanent jobs for themselves. I just don’t find that "We have to become the monopoly to provide you with as much competition as we feel is good for you" is a compelling argument" our source concluded.

ICANN has set itself to pander to powerful financial interests. One has to wonder therefore what kind of management could have let in fall so sharply in debt. Despite the fact that the GIP has been trying to shake down money for ICANN ICANN almost ran out of cash in June

We have obtained independent verification that they are messages that were given by ICANN to the House Commerce Committee Subcommitte on Oversight and Investigations that held hearings on July 22. The e-mail below makes very clear that ICANN’s support is focused largely within IBM, MCI, Cisco, and the Executive Office of the President of the United States. MCI’s Vint Cerf and IBM’s Vice President of Internet Technology, John Patrick show themselves as the masterminds of a campaign to collect funds from internet related companies. The guise is that without ICANN the Internet cannot function smoothly and "if ICANN fails e-business/e-anything is in jeopardy." The messages show the grasping self-serving mindset of the ICANN clique - one that is useful to contrast to their avowed stance of public interest coordination of Internet technical functions.

ICANN has constructed an edifice of Byzantine complexity to provide a foundation for the job that six IANA people are doing now for a cost of about $600,000 a year including equipment and overhead. Those who have not bought into its centralized, control-oriented mindset maintain that it is a job that does not need to be done and is one that will allow a handful of huge corporations to dominate the formerly decentralized entrepreneurial workings of the Internet. The Internet is functioning quite well without ICANN. Congress must ascertain what has motivated ICANN’s core supporters, a group of only four people: Vint Cerf, John Patrick, Esther Dyson, and Mike Roberts to claim that the Internet is in danger? [ See section below.] Do we really want the Internet, which is functioning perfectly well, run by an unaccountable bureaucracy staging a global road show and spending annually some ten times the current amount that gets the job done?

Two legacy companies, IBM and MCI, are at the heart of a gambit to build – with the aid of other legacy operations like Netscape and AT&T, and the hangers-on of the failed gTLD-MOU, IAHC, Core group – an unaccountable operation that is at heart antithetical to the interests of the globally expanding entrepreneurial Internet. What is being built is an operation to benefit trademark owners and lower the transaction costs of protecting their marks Leaders of most other internet companies, seeing through the Cerf-Patrick subterfuge, have not contributed to those directing the ICANN gambit. Unfortunately, Cerf, Patrick, Dyson and Roberts didn’t get the message that should have been delivered by their last year’s worth of fund raising efforts. ICANN should be put out of its misery and the Internet left to run itself.

The lessons taught by ICANN will provide strong motivation for domain name registrars and the regional IP number registries to contribute the six to seven hundred thousand dollars a year necessary to keep IANA functioning. Left to its own devices we will find that the DNS registry/registrar industry will be able (perhaps with some congressional guidance) to form an association. We shall see that this association will be able to operate multiple root servers in a way that will prevent most conflicts and that by letting the market place actually operate we shall quickly gain a larger and more stable DNS system.

The inner circle of ICANN is amazingly narrow. MCI-WorldCom (Vin Cerf & John Sidgemore), IBM (John Patrick, Roger Cochetti, Mike Nelson & George Conrades) Mike Roberts (who at Educom was beholden to IBM funding), Esther Dyson (known as one of the most influential persons in the IT industry) Joe Sims (anti trust attorney for the powerful law firm of Jones and Day) and Tom Kalil, the group’s white house liason to the highest levels of the Clinton Gore administration.

On the same day Vint Cerf replied in a message showing the unusual length that he was prepared to go to salvage ICANN as an MCI/IBM control vehicle.

Cerf: "I have talked with John Sidgmore. We will try to get $500K at least "backup" in case nothing else in the way of fundraising works. Mike Nelson, I have copied John Patrick and Irving Wladawsky-Berger [Editor: an IBM e-commerce executive] on this messa