23 MR. ZITTRAIN: We'll start our second
24 substantive session of the day. Linda Wilson has
O'BRIEN & LEVINE COURT REPORTING SERVICES
156
1 joined us. Welcome, glad you could make it. I
2 hope the other events went well this morning.
3 Also you'll see on page 375, starting on page 375
4 in the binders, there are some summaries of the
5 suggestions that were received to date through the
6 comments process on each of the substantive areas.
7 We're already trying to incorporate what happened
8 in the last session into that first one on
9 membership, and no doubt we'll do the same with
10 the second, which is on structure and some of the
11 supporting organizations and technical advice and
12 support to the Board. At this point, I would like
13 to introduce and turn the podium over to Molly
14 Shaffer Van Houweling. Molly is a fellow of the
15 Berkman Center and also is now working with ICANN
16 in some capacity. We have a tug-of-war going
17 between us; Molly is in the middle, and now Molly
18 is in the middle. So with that, I turn over the
19 lavaliere mic to Molly to proceed.
20 MS. HOUWELING: Thanks. And actually,
21 if it's okay with her, I think we might get
22 started by having Linda give a brief introduction,
23 as the other Board members did this morning,
24 before we start on the substantive --
O'BRIEN & LEVINE COURT REPORTING SERVICES
157
1 MR. ZITTRAIN: If you could summon our
2 scribe.
3 MS. HOUWELING: And also, if our scribe
4 could report to the scribe area.
5 MS. WILSON: Thank you. I'm pleased to
6 be here. I'm Linda Wilson, President of Radcliffe
7 College. And the reasons that I am here are
8 because someone asked me to take on this
9 responsibility. I believe in July, told me about
10 the challenges that were before us today, that
11 operation was to be transferred from the
12 government to a non-profit organization and called
13 on me to consider bringing the experience that
14 I've had in helping to develop new non-profit
15 organizations as vice president of research at the
16 University of Michigan and similar positions at
17 other institutions, and in running this small
18 institution that I now lead, always innovative and
19 always trying to be flexible and open to this
20 enterprise.
21 I'm looking forward to the opportunity
22 to do that. I've found the discussions so far
23 stimulating, inspiring in many ways as we try to
24 get over the many complex challenges that we face
O'BRIEN & LEVINE COURT REPORTING SERVICES
158
1 right now to how we can move quickly, to function
2 well and support the Internet, but at the same
3 time (inaudible) very much longer horizon so that
4 the choices and steps that we take now don't
5 foreclose opportunity or access for the longer
6 term. Thank you.
7 MS. HOUWELING: Thanks. Mike, why
8 don't I give us a little outline of how we'll
9 proceed in this session before we go on. This is
10 a session on technical advice and unbiased
11 expertise supporting organization structures. And
12 if you'll turn to Esther Dyson's letter, which is
13 just about the third page of your briefing book,
14 you'll see how she's sort of spelled out these
15 substantive areas for us and listed a long list of
16 questions that go along with this agenda item.
17 And we've found, in the comments that
18 we've solicited so far on the Web site, that this
19 is an area where there are a particularly large
20 number of questions as well as suggestions about
21 how to move forward. Some of those are listed
22 here. We'll display several of those on the Board
23 as we move on. And I think Mike Roberts was going
24 to lead off the Board's participation in this
O'BRIEN & LEVINE COURT REPORTING SERVICES
159
1 session. We'll have some other questions to
2 suggest to us. As we move on, we'll list those
3 questions, list some of the Board's thoughts on
4 possible ways to move forward on those questions
5 and then solicit your suggestions on those items,
6 other questions we've heard and the comments
7 submitted and your own questions and suggestions
8 for answering those. So Michael, maybe you could
9 start it.
10 MR. ROBERTS: Thanks very much, Molly.
11 I'd like to say that I'm delighted to have Molly
12 as my assistant, and I have the first claim on her
13 time and Jonathan can have what's left over. Over
14 the break, there were some suggestions from
15 several of you that we back up a bit on the
16 question of the mission of ICANN. And so we're
17 going to spend just a couple of minutes, because
18 among other things, it's apropos of the discussion
19 about the support organizations. And we're going
20 to put up for you on the screen -- I hope, Molly,
21 quickly -- the part of the corporation statement
22 that contains the purposes of ICANN.
23 This language is pretty straightforward
24 and is, in fact, very close to the wording in the
O'BRIEN & LEVINE COURT REPORTING SERVICES
160
1 white paper as to what the U.S. government's
2 expectations were of the non-profit corporation
3 that it proposed to be created. I think that
4 those of you who participated in the processes
5 over the summer are aware that John Costello, who
6 was the guiding light of that, felt that it was
7 essential to be faithful to the mandate in the
8 white paper, since, to the extent that a consensus
9 existed, it was contained in that document.
10 We are going to have opportunity for
11 you to make comment about this, but I think in the
12 interests of making this session on SO's be
13 productive for you, we are going to defer
14 questions about this particular wording and the
15 intent of the wording to the open session that's
16 slated for this afternoon. A number of you said
17 that we have jumped too far ahead too fast, and we
18 wanted to back up and give you a chance to look at
19 this section. To the extent this isn't, you know,
20 elegant press-release language on mission, it
21 hasn't been crafted in the usual management style,
22 it's -- but it is, nevertheless, what there is in
23 the mission statement for ICANN at this moment.
24 What I -- okay, now let's go back to
O'BRIEN & LEVINE COURT REPORTING SERVICES
161
1 the regular format here. I want to give you a
2 little bit of a preamble to trace the history of
3 how we got to the SO structure, not because the
4 Board has an opinion based on the history in one
5 direction or another, but because it's useful
6 context for your own comments and suggestions in
7 this session.
8 After the Federal Networking Counsel
9 decided to privatize, which now is about six or
10 seven years ago, there remained the issue of what
11 to do about those functions which the research
12 agencies had supported as part of their R&D
13 function in the growth of the original research
14 (inaudible) Internet. And there wa a general
15 feeling that there needed to be an exit strategy
16 for those functions, because the Internet was
17 likely to grow rapidly.
18 And at the time that these discussions
19 were taking place, the Internet had fewer than ten
20 million hosts in it, and we now, of course, have
21 probably well over fifty million, and because of
22 by-laws, we're not even quite sure how many there
23 are any more. But at any rate, the growth rate
24 has exceeded the wildest expectations of everyone,
O'BRIEN & LEVINE COURT REPORTING SERVICES
162
1 and consequently there's organizations (inaudible)
2 that have had to be dealt with.
3 But the government, of course, moves
4 fairly slowly in trying to resolve untidy little
5 problems like this, and so it really didn't get
6 its act together until the summer of 1997 when
7 there was an inter-agency working group formed.
8 And they asked the Commerce Department to publish
9 the requests and comments that led to the green
10 meeting.
11 In the green paper, there was the
12 general notion that the technical community that
13 had been responsible for these three major
14 areas -- the addresses, the protocols and what
15 then was called DNS carrier, not names as we call
16 them today -- that the technical community's input
17 and control over that needed to be expanded to a
18 broader base.
19 And if you -- after the comment period
20 on the green paper came to a conclusion, one of
21 the general summaries that the government took out
22 of the green paper comment process was that the
23 green paper still contemplated too much of a top-
24 down and, in many minds, too much of a U.S.-
O'BRIEN & LEVINE COURT REPORTING SERVICES
163
1 centered approach to this. And consequently, the
2 white paper was considerably more international in
3 tone and also considerably more bottom-up. And
4 the bottom-up nature of the white paper, of
5 course, has caused some difficulties over the
6 summer in forming a consensus, because many people
7 aren't used to a bottom-up as opposed to a top-
8 down organizational response to these kind of
9 challenges.
10 Now, if you go back to version one of
11 the by-laws, which is the document in the first
12 IFWP meeting, there were an assumption -- there
13 was a tacit assumption there would be four user
14 organizations. One of those was going to be users
15 in industry, and then there were going to be
16 addresses, protocols and the DNS area.
17 In the discussions addressed in that
18 and subsequently at Geneva, which led to version
19 three, the -- there was a general feeling that the
20 by-laws had not yet captured a broad enough base
21 of interests, and in particular, that it didn't
22 capture sufficient roles for the Internet
23 community at large.
24 If you think about the way the
O'BRIEN & LEVINE COURT REPORTING SERVICES
164
1 government was trying to look at this, it
2 typically thought about users and so on in the
3 consumer sense, and we had an objection this
4 morning to thinking about users as only consumers.
5 But that was, nevertheless, the mindset that was
6 there, and so there was sort of an early notion
7 about, well, we will apportion this and they will
8 get a quarter of it.
9 Now, after Geneva, two rounds of this,
10 the structure had been adjusted so that the at-
11 large, the public input to this corporation's
12 Board would comprise half of the activities of the
13 support structure and that the address, protocols
14 and names of communities would elect the other
15 half. And that structure, that basic structure
16 has prevailed through versions four, five and six,
17 which is where we are today.
18 One of the interesting situations we
19 find ourselves in now is that having abandoned,
20 early on in the summer or even spring, the notion
21 of a specific user organization, we now have
22 circled back around and the Board has, in effect,
23 indicated that it will go in the direction of
24 where we were back in the spring, but with some
O'BRIEN & LEVINE COURT REPORTING SERVICES
165
1 uncertainty, because the issues that were raised
2 then were not resolved over the summer because
3 they had, in effect, been taken off the table.
4 So as a result of that, we have the
5 issue of the support organizations and their
6 relationship to the Board and also the role that
7 they're supposed to play in the affairs of the
8 corporation, and that's what this session is
9 about, and I'm about to hand out a preamble, and
10 we'll give you folks a chance to address that.
11 I would point out that since this is a
12 pretty complex area and many of you are already
13 engaged in organizing activities for the support
14 organizations, I'm going to try to be responsive
15 to concerns that are already directed at us about
16 what's going to happen down the road here. But I
17 thought it was useful for you to have a context in
18 which we could discuss that. And I'd also like to
19 point out, Molly's going to put up there in a
20 minute some text, but that the operative text
21 about this is in your briefing book at page 43, if
22 you care to reference it.
23 MS. HOUWELING: What we're putting up
24 right now are the criteria that the Board shall
O'BRIEN & LEVINE COURT REPORTING SERVICES
166
1 review in considering an application for
2 recognition as a supporting organization. And we
3 should scroll down maybe from what is really the
4 preamble to the criteria. So a supporting
5 organization's application should include these
6 elements. And perhaps it's easier for all of you
7 who have briefing books to look at this on page
8 43.
9 MR. ROBERTS: I have met with at least
10 more than fifty people in the past couple of weeks
11 who have had a lot of questions about how to
12 interpret this language and also what are the
13 Board's intentions about how rapidly it will go
14 forward with review of these proposals for
15 recognition. The Board hasn't taken any action on
16 that.
17 And I want to make one very important
18 caveat, because it's been a subject of a lot of my
19 face-to-face discussions with people, and I want
20 to give everybody a chance to be heard from this
21 afternoon; and that is, you'll notice that this
22 wording is not restrictive, it's permission. The
23 assumption is that the communities of interest
24 within the support organizations have a lot of
O'BRIEN & LEVINE COURT REPORTING SERVICES
167
1 worthwhile ideas about how to organize themselves
2 in a manner which meets these criteria. And in
3 that sense, we see -- I see myself as the CEO and
4 the Board sees itself (inaudible) recognizes as
5 having a facilitating rather than a prescriptive
6 role. We -- if you want more guidance from us,
7 we're certainly receptive to your telling us where
8 you think this needs to be more structured, but
9 we're not starting out with an assumption that
10 it's up to us to be prescriptive about it. This
11 really is trying to push the affairs of the
12 corporation closer to the users and to hear and
13 allow you to have as much voice in your respective
14 communities as you can in helping run ICANN and
15 have it accomplish its agenda.
16 MR. HOUWELING: Thanks. Esther, did
17 you want to add something to that?
18 MS. DYSON: Yes. Could you just say
19 three words about what the supporting
20 organizations do and what their powers and
21 responsibilities are?
22 MR. ROBERTS: Going back to the history
23 of this area, the original modus operandi for the
24 Federal Networking Council was an area of
O'BRIEN & LEVINE COURT REPORTING SERVICES
168
1 substantial complexity, and it required a lot of
2 very talented, very on-point thinking to get
3 things done right and to help the Internet grow
4 and to be stable. That general frame of mind
5 carried over into our organizing documents, with
6 the assumption that in these three areas, there
7 were a sufficient level of professional technical
8 expertise required that it should -- there should
9 be very explicit mechanisms for bringing that
10 knowledge through a structure and up to the Board
11 for action. And the by-laws provide that as a
12 general rule, the Board will take action in these
13 areas only after advice from a supporting
14 organization.
15 A couple of caveats to that. One is,
16 any recommendation made by a supporting
17 organization is required to be bettered by the
18 other two supporting organizations, and further,
19 the Board reserves to itself the right to act if
20 it is confronted with a paralysis that's either
21 accidental or intentional. So just to clear the
22 air a little bit on some assertions that have been
23 made as to whether the Board will always or
24 frequently or forever operate independently, they
O'BRIEN & LEVINE COURT REPORTING SERVICES
169
1 are an organic part of the body of ICANN, and the
2 Board will defer to advice from those bodies on
3 their subject areas of expertise. On the other
4 hand, it has the ultimate responsibility for doing
5 the right thing.
6 Esther also wanted me to say something
7 about timing. I think that most of you are aware
8 that the Board's present contention is to have its
9 first meeting at which we will review some of the
10 real business of the corporation, a face-to-face
11 policy business meeting, is going to be in Asia
12 probably in late February. That meeting will be
13 noticed and agendaed not later than the beginning
14 of January, so everybody will have ample
15 opportunity to see what we intend to take up, and
16 specific agenda material will be publicly posted.
17 So I've had a lot of questions from organizers of
18 SO's about, how do we -- what do we have to do to
19 get recognized at that March meeting?
20 And again, I don't want to be over-read
21 and I don't want to sound prescriptive, but common
22 sense suggests that we need to have well-thought-
23 out, articulated, complete proposals with ample
24 demonstration of the breadth and the depth of
O'BRIEN & LEVINE COURT REPORTING SERVICES
170
1 community support for those proposals in December.
2 Now, that is not conclusionary. That's, among
3 other things, open for comment by those of you who
4 are here today.
5 MS. HOUWELING: Thanks. I thought one
6 way to get started with our two-way dialogue would
7 be to review some of the questions that have been
8 submitted already in our registration comment
9 form. And one of those that was addressed by
10 several commentors is the one that Mike started to
11 address for us, the question of how does the Board
12 initiate policies, should an SO not be willing to
13 do so. I'm wondering if there's anyone in the
14 audience who wants to expand on that question or
15 add some subtleties that we should address, both
16 with more feedback from the Board, perhaps, and
17 also for suggestions for addressing that question.
18 Yes, Carl?
19 MR. AUERBACK: Yes, Carl Auerback.
20 With response to this question, the Board, as was
21 mentioned earlier, has a fiduciary duty towards
22 the membership or towards whatever the Internet
23 community has. The SO's do not. If the Board
24 does not have a clear statement of authority to
O'BRIEN & LEVINE COURT REPORTING SERVICES
171
1 move in the total absence, not just the conflict
2 of SO activity, then we have no means by which the
3 interests of the Internet community -- I use that
4 word intentionally -- can be served.
5 MS. HOUWELING: Thanks. Mike or other
6 Board members who care to explain what the
7 position of the Board might be in the absence --
8 Mike, you've mentioned paralysis among supporting
9 organizations. Does that mean absence as well as
10 a crunch between two different organizations?
11 MR. ROBERTS: I want to give a general
12 and a specific answer. One is, there seems to be
13 an assumption among some commentators that the
14 Board wouldn't do anything on any -- unless it
15 came through some very highly-structured route to
16 the Board. You know, that's not how we see our
17 jobs. And therefore, if there's an area within
18 our authority purposes that you think something
19 ought to be going on about, we're certainly
20 anxious to hear from you.
21 With specific reference to the point
22 that Carl made, I think my general -- and I'm not
23 speaking for the Board, I'm speaking as someone
24 who's trying to facilitate the process -- my
O'BRIEN & LEVINE COURT REPORTING SERVICES
172
1 observation of the people that are working in this
2 area is that they have all kinds of work that they
3 consider they want to do and get to us as fast as
4 they can do it.
5 MR. AUERBACK: But what happens when an
6 SO, whose primarily responsibility (inaudible),
7 refuses to act, and yet we have a general
8 consensus or a large body who believe in the
9 Internet community that the policy (inaudible)?
10 There's no way (inaudible) to take initiative on
11 its own to reverse that position.
12 MS. DYSON: There is, and --
13 MS. HOUWELING: Page 43, I think, is --
14 MR. AUERBACK: Oh, I've read it many
15 times, and I still don't believe it's there, but I
16 would certainly like some clarification and
17 clarifying language right here in English.
18 MS. DYSON: Okay. I mean, it is there.
19 We will look at whether, in the saving of time, we
20 need to make it more clear.
21 MS. HOUWELING: The front mic, do you
22 have another expansion on this question?
23 MR. HECKENDORN: Yeah, I have a direct
24 suggestion on the role of the chief technology
O'BRIEN & LEVINE COURT REPORTING SERVICES
173
1 officer. The by-laws provide for a chief
2 technology officer, and it seems to me that one of
3 the roles of the chief technology officer should
4 (inaudible) constantly address the issues that the
5 supporting organizations -- the technical issues
6 and the supporting organizations (inaudible). My
7 primary concern is that issues that are not really
8 technical in nature that are -- have broad policy
9 implications, those should -- there should be a
10 way to spot those before the SO's spend a lot of
11 time hashing through or building protocols or
12 whatever, you know, if there is a policy aspect.
13 And despite what one of the other commentators
14 said earlier, I see the chief role of the Board is
15 dealing with policy issues.
16 MS. HOUWELING: Thanks. Any other
17 Board members have any thoughts on that
18 suggestion? I'd like to note that we have very
19 helpfully moved into the structure of the outline
20 that we have already, by moving to suggestions as
21 well as expansions on our first question. The
22 back microphone, do you have another suggestion on
23 this topic?
24 MR. ORMES: It pretty much feeds into
O'BRIEN & LEVINE COURT REPORTING SERVICES
174
1 what's been said already. I'll probably be quick.
2 I'm Andy Ormes from Computer Professionals
3 (inaudible) Computer Professionals should make all
4 the decisions that affect the public (inaudible)
5 idea of trying to separate policy from mechanism,
6 which you can interpret in many different ways.
7 But it could be the Board or the membership or
8 someone in the community that sets policies that
9 says -- I'll just pick one out that's on the top
10 of everybody's mind, say a policy that the domain
11 name system should be set up so that it's very
12 unlikely that any two organizations will vie over
13 a single name. So if you adopt the policy, then
14 you can go to an SO and say make this work, you do
15 the mechanism part of it.
16 Now, if you want the policy to come
17 from the supporting organizations, I think you
18 have to redefine those and they're no longer
19 purely technical bodies. They'll have to
20 incorporate people who are not purely technical
21 experts.
22 MR. ROBERTS: The six criteria for
23 selection include a requirement for open
24 membership, and in addition to that, the revised
O'BRIEN & LEVINE COURT REPORTING SERVICES
175
1 by-laws provide that after, the Board shall be
2 composed of at-large members. But if you believe
3 there should be further adjustments, we'd
4 certainly like to hear.
5 MS. HOUWELING: I see the Carl has
6 already complied with the rule I was about to
7 announce, was that folks in line who've made a
8 comment on this subject might give an opportunity
9 for people who have not yet commented on this
10 subject to step up to the mic. And we're at the
11 front mic.
12 MR. KAUMBACK: It's a bit more
13 general -- I'm Daniel Kaumback, NCC European
14 address registry. I'm a bit concerned about the
15 (inaudible) as to the supporting organizations
16 only being technical and concerned with
17 technology. The supporting organizations provide
18 a bit -- a large part of the legitimacy of ICANN,
19 and they should certainly deal with policy issues.
20 They deal with policy issues right now, at least
21 the organizations that I belong to make up a big
22 part of the support organizations. So if people
23 think it's going to be about technology, I don't
24 think that's right. I think they're going to make
O'BRIEN & LEVINE COURT REPORTING SERVICES
176
1 policies and there will be an open process for
2 that, and it's too limiting to think of the
3 supporting organization just as a technical
4 advisory function to the Board and to limit
5 policy-making to the ICANN Board, I don't think
6 that's the intention of the by-laws of the whole
7 structure.
8 MS. HOUWELING: So I think we can tie
9 together the last two comments as both related to
10 the extent to which SO's are, one, both only
11 making technical decisions, and two, most
12 appropriately only occupied by people with a
13 technical focus as opposed to more general user
14 groups. We might even, if we get some other
15 suggestions on this line, identify a question of,
16 to what extent is it only appropriate for people
17 with a technical focus to be participating in the
18 supporting organizations.
19 MS. DYSON: And rather than answer
20 that, I want to at least make one clarification
21 that, at least in the DNSO in particular,
22 technical also means legal, not just --
23 MS. HOUWELING: Which I think perhaps
24 raises the issue (inaudible) even to the extent
O'BRIEN & LEVINE COURT REPORTING SERVICES
177
1 that (inaudible) the ambiguity (inaudible) legal
2 and policy-making. Why don't we scan back up to
3 our original question and see if anyone in line at
4 the mic wants to expand or continue to make
5 suggestions about the role of the Board versus the
6 SO in initiating policies. Could we have hands
7 raised, maybe, of the people at the mics who are
8 interested in that question? And some shuffling
9 around, maybe, if we could manage that.
10 MR. CORISI: My question is how the
11 Board will be able to deal -- again, sorry, my
12 name is Dan Corisi -- is about what the Board's
13 position would be in dealing with antitrust
14 issues, basically like other companies or people
15 setting up their own directory service. And then
16 say if Microsoft does the same thing, those two
17 basically control a hundred percent, so basically
18 could put basically everything we're talking about
19 (inaudible).
20 MS. HOUWELING: Okay, thanks, and I'd
21 encourage you to expand on that maybe in writing.
22 We have a comment box out front, and for others
23 whose comments are not quite on topic for this
24 too-short session to follow that advice as well.
O'BRIEN & LEVINE COURT REPORTING SERVICES
178
1 Amadeu up in front, are you on this initiating
2 policy issue as well?
3 AMADEU: Yeah.
4 MS. HOUWELING: Good.
5 AMADEU: First of all, you say that
6 ninety-nine percent of the policy will come from
7 supporting organizations (inaudible) open
8 membership organizations will be also open and
9 legitimate and would bring this system and all the
10 parts of this community together. And I would
11 submit that a special qualifying majority, let's
12 say fourteen members (inaudible) for two of the
13 three supporting organizations now has to
14 seriously (inaudible).
15 MS. HOUWELING: It sounds like we're
16 about ready to log this as a suggestion. If you
17 want to wrap it up, we'll get it logged.
18 AMADEU: No, okay, this was the first
19 part. The second part (inaudible) but what
20 happens in case of a national conflict? Here
21 again --
22 MS. HOUWELING: Okay, so you've
23 identified again the first question that we're on
24 as the second element of your concern -- okay,
O'BRIEN & LEVINE COURT REPORTING SERVICES
179
1 interesting. So this sounds like a different view
2 than we've heard before on the question of what
3 happens when no policy comes up through the
4 supporting organizations; instead of a view that
5 the Board needs clear authority to do something in
6 that case, that the Board should be, in fact,
7 consulting, in an iterative fashion, about that.
8 MS. DYSON: They should be consulting
9 (inaudible), sounds like.
10 MS. HOUWELING: Any other Board
11 comments on that suggestion? Let's see, who else
12 do we have? The back microphone I think is still
13 on this first subject.
14 MR. CURRAN: John Curran, GTE.
15 Specifically on the question of should the Board
16 initiate policies, clearly the Board has certain
17 legal responsibilities (inaudible) something it
18 has to adhere to, certain stewardship
19 responsibilities, I might say. That means that
20 ultimately, they will have to reserve the right to
21 act. I think the phrasing is probably
22 sufficient -- I don't actually like that, but I
23 understand why it's there. The fact of the matter
24 is that ICANN does enjoy legitimacy through the
O'BRIEN & LEVINE COURT REPORTING SERVICES
180
1 supporting organizations, which are not technical
2 bodies, but are bodies focused on a particular
3 topic, whether that be a protocol field or whether
4 that be existing organizations that balance
5 technical issues, engineering issues, policy
6 issues and political issues.
7 To the extent that a policy is
8 necessary and it's not forthcoming from an SO, one
9 would think that the ICANN would encourage the SO
10 to work on the topic. Ultimately, if nothing
11 comes from an SO after much encouragement,
12 certainly the Board has some responsibilities.
13 But to the greatest extent possible, I think the
14 policies (inaudible) adoption if they actually
15 come up through an SO, and that reduces the chance
16 of ICANN Board making a policy which gets
17 discarded by the community.
18 MS. HOUWELING: Interesting. So some
19 more justification along the lines of the last
20 suggestion that when nothing comes up or when
21 something not quite to the agreement of all the
22 supporting organizations comes up, that the right
23 response is to turn back to the supporting
24 organizations, perhaps. At the front mic, are we
O'BRIEN & LEVINE COURT REPORTING SERVICES
181
1 still on this topic?
2 MR. STOLSON: Close. Ken Stolson from
3 Microtech again. I want to just quickly point out
4 that given the actual powers that it looks like
5 ICANN is going to have and what you're going to
6 control, there are really two main issues that
7 seem to drive the vast majority of the interest
8 here: Domain name conflict resolution policy and
9 whether or not to make new GTLDs. There are a lot
10 of people talking very grand policy, but in fact,
11 if you took away those two things, this room would
12 probably be empty. One of the things we need to
13 figure out is whether it is -- and I've heard
14 contradiction about this just in the last two
15 speakers -- are the SO's technical and the Board
16 policy, or who is it that the people who are
17 interested in those two issues and the other
18 things that ICANN will actually have the power to
19 control, where do we go to address those issues?
20 Do we address you or do we address the DNSO? That
21 should be resolved, because that really shifts the
22 weight.
23 MR. CONRADES: If I could make a
24 comment. I hope you folks are reading --
O'BRIEN & LEVINE COURT REPORTING SERVICES
182
1 MS. HOUWELING: Closer to the mic.
2 MR. CONRADES: If I could just make a
3 comment, I hope you folks are reading pages 43, 44
4 and 45. A lot of work went into the words. And
5 certainly we could quarrel, as some do, how those
6 words would be interpreted, should be interpreted.
7 But if you read page 43 under supporting
8 organizations and section C, you will see the
9 words "policies and procedures" as one example.
10 And I just would encourage you to read this first,
11 and then maybe some of the comments could be
12 centered on strengthening and/or saying this is
13 not what we want and offer a constructive change.
14 MS. HOUWELING: Any other Board member
15 have a comment? Scott, go ahead.
16 SCOTT: Hello, microphone. There we
17 go, microphone. I want to key off something that
18 somebody said a little bit ago which implied that
19 if the Board decides on a policy by whatever
20 determined method of doing so, they would go off,
21 for example, and tell the protocol people, I think
22 was the words, tell the protocol people what to
23 do, which implies they're going to tell the
24 people, the protocol people what not to do. I
O'BRIEN & LEVINE COURT REPORTING SERVICES
183
1 wouldn't suggest that.
2 The protocol people are headstrong
3 folks who believe that they are in there for doing
4 the right thing. The thing which got this
5 Internet to where it is is the lack of control
6 over what we can do. We can experiment with
7 anything we want to experiment with. If I want to
8 exchange some new protocol with Mike Roberts, Mike
9 and I can agree to do that. ICANN is in no
10 position to tell the protocol people, the
11 technologists in the creating of technology, what
12 they should not do.
13 MS. HOUWELING: Board have any feedback
14 on plans to the contrary or --
15 MS. DYSON: I don't think that was
16 actually -- at least it wasn't what we thought.
17 MS. HOUWELING: I'd like to note that
18 another question that will be on the screen at
19 some point during this discussion is the question
20 of the Board's relationship to existing
21 organizations, including IETF. So if that's a
22 topic that people at the mics are interested in
23 moving to, then we can pull that up ASAP. Go
24 ahead.
O'BRIEN & LEVINE COURT REPORTING SERVICES
184
1 MR. HECKENDORN: My comment really
2 moves toward that area, because not being a
3 participant with any of the supporting
4 organizations and having read the by-laws, it
5 looks to me like, you know, the supporting
6 organizations are not supposed to encompass
7 everyone with technical interest on the Internet,
8 that's a much broader base. There are supporting
9 organizations around specific tasks, and in that
10 sense, I believe they should have a narrower focus
11 than the existing organizations that have been
12 taking on those roles as well as trying to do
13 other things now.
14 I mean, the Internet's growing up a
15 little bit, and we need to plan for something that
16 will work two years from now and not just how it's
17 been. And I think it's very important that issues
18 that are not really technical, that are
19 primarily -- that have strong policy implications
20 don't get buried in the SO's and then only arrive
21 after the SO's have formed (inaudible).
22 MS. HOUWELING: Just to clarify, the
23 issue that we've now highlighted on the screen was
24 one that was submitted by a commentator in advance
O'BRIEN & LEVINE COURT REPORTING SERVICES
185
1 of the meeting that seems like an appropriate one
2 to move onto. The back mic?
3 MR. SIMPSON: I want to go a lot
4 farther back, unfortunately. When they came to
5 Geneva, the balance of the user organizations and
6 supporting organizations, it made it a little
7 bit -- had an opportunity to be like the Italian
8 legislature where a very small issue can control
9 the balance of things. And I actually disagree
10 with expanding the user organizations to that
11 extent and particularly if the Board is going to
12 follow that dictation of policy and procedures to
13 the supporting organizations (inaudible) petitions
14 from people and its own recognition without coming
15 from the supporting organizations.
16 I can't imagine that any of the
17 supporting organizations would pay any (inaudible)
18 to a Board that would try to do any of those
19 things. The Board and the ICANN exists to provide
20 a service to those supporting organizations, to
21 maintain numbers and names in a central
22 repository. We have had experience with the top-
23 down governments making treaties and deciding that
24 they were going to use a particular set of
O'BRIEN & LEVINE COURT REPORTING SERVICES
186
1 protocols and that this is what needs to be
2 implemented, and it didn't work. And if the Board
3 wants people to directly petition the Board for
4 new things the supporting organizations haven't
5 given them, I think that you're in for a lot of
6 work.
7 MS. HOUWELING: Could you, before you
8 step down, identify yourself --
9 MR. SIMPSON: Oh, I'm Bill Simpson.
10 I've been at the mic already, so I didn't realize
11 I needed to identify myself again.
12 MS. HOUWELING: Thanks, and I'd remind
13 the rest of you for the transcript and so forth.
14 I wanted to just note, it seems like an irony of
15 the last few comments, the possibility, people are
16 noting, of attempts to create a broad-based
17 organization with a membership, resulting in,
18 ironically, top-down management of existing
19 organizations, seems to be a threat through the
20 last few comments. Yeah, Karl?
21 MR. AUERBACK: Carl Auerback again.
22 Some specific suggestions. First, let's strike
23 the use of the word bottom-up. It is very
24 ambiguous. I tend to use from the personal
O'BRIEN & LEVINE COURT REPORTING SERVICES
187
1 individual up, some people think corporations up,
2 but it's very ambiguous. I would like to say that
3 the actual text of the by-laws talks about the
4 proposal evaluated by -- one of the terms is,
5 quote, good of the corporation. I would suggest
6 that we think of the good of the Internet when
7 these proposals are being evaluated. Good of the
8 corporation is not necessarily synonymous with
9 what the corporation is supposed to be doing.
10 Also, we made a specific proposal, I
11 think orally, that there be language explicitly
12 put in there that would give the Board the
13 explicit power to request SO's to come up with a
14 policy, and then at the expiration of some
15 reasonable period, that the Board can then take
16 action. I felt this was a reasonable compromise
17 between giving the Board unlimited power to
18 initiate policy, gives the SO's essentially the
19 right of first refusal.
20 There's also the question of, why
21 should an SO, which is coming up with a policy,
22 turn around, hand themselves a copy of the policy
23 and say, oh, what a nice policy, I approve, I vote
24 for it? Why should SO's have a vote for their own
O'BRIEN & LEVINE COURT REPORTING SERVICES
188
1 policy?
2 And finally, where is the technology in
3 most of these areas? I would submit in most of
4 these SO's, we're talking mostly about policy
5 issues, and the Board is mostly going to be
6 dealing with policy decisions. We are dealing
7 with a public utility here. We are not dealing
8 with (inaudible). We can't have this
9 unconstrained (inaudible).
10 MS. HOUWELING: Thanks, Carl, again
11 raising the -- questioning the assumption that
12 maybe someone (inaudible) the supporting
13 organizations are about purely technical issues,
14 raising the ambiguity between the technical and
15 the policy. Also some questions raised here sort
16 of about the by-law process and the selection of
17 language that was made. Does anyone on the Board
18 want to comment?
19 MS. DYSON: Well, I just -- I think
20 we're all listening with interest to exactly what
21 this is all about: A bunch of legitimate
22 questions and an attempt to create a system of
23 checks and balances so that it doesn't go off the
24 rails in one direction or the other. And as Carl
O'BRIEN & LEVINE COURT REPORTING SERVICES
189
1 said, in some sense, we are focused primarily on
2 the good or the continued stable functioning of
3 the Internet, and we're going to keep all this in
4 mind. I think our language is actually fairly
5 carefully crafted to provide some of those checks
6 and balances.
7 AUDIENCE: Actually, I have a question
8 based on what the supporting organizations are and
9 what they're supposed to be doing in terms of
10 representing (inaudible). The existing
11 organizations that I know of, as far as I can
12 tell, are (inaudible) organized, they're organized
13 around areas of specific interest, numbers, names,
14 protocols (inaudible) they all have an impact on
15 the people who are doing business or going about
16 their lives using the network. By putting the
17 source -- the sole source of policy determination
18 in the hands of these several different, possibly
19 numerous organizations, it seems like it deludes
20 the ability of people who are positioned
21 (inaudible) affected by all of these areas, and it
22 deludes their ability to participate. You know, I
23 just don't understand how that represents
24 (inaudible).
O'BRIEN & LEVINE COURT REPORTING SERVICES
190
1 MS. HOUWELING: Thanks. Let's -- yeah?
2 MR. ROBERTS: Yeah, I think that's a
3 very legitimate question, and the Board's
4 discussed that. The mandate board of the -- an SO
5 to demonstrate open membership in its recognition
6 proposal is specifically related to that, that
7 being (inaudible) organizations that you have to
8 participate in to have any real impact. I
9 certainly understand and I sincerely hope that
10 people are not underrating the depth of the issues
11 that these organizations are required to undertake
12 and the primary requirement of this organization
13 to ensure stability of the Internet.
14 MS. HOUWELING: Let's go to the front
15 mic.
16 MR. TELAGE: Don Telage from Network
17 Solutions. I just wanted to take up the issue
18 again of the action of the Board in lieu of action
19 from a supporting organization. I think it's
20 important to focus on that for a moment. My
21 concerns are that it is quite likely that if a
22 supporting organization does not act on an issue
23 (inaudible) it's conceivable that there isn't a
24 consensus for that or even, you know, enough of a
O'BRIEN & LEVINE COURT REPORTING SERVICES
191
1 consensus that that is an important issue. If the
2 -- in fact, the Board does take action on the
3 issue, if there isn't a strong consensus and
4 (inaudible) that action down to the service
5 providers that are required to implement that
6 action, registries, i.e., or registries domain
7 name, and is it prepared to indemnify those
8 organizations from the suits that will likely
9 appear? That's a very important issue of
10 operation. You're much more protected when you're
11 operating under a very strong consensus and a
12 mandate in the community at large than when you're
13 operating under a minority consensus and a Board
14 action.
15 And I think whether you have contracts
16 with your service providers or whether you do not
17 have contracts with your service providers, the
18 issue of liability, which I can speak to very
19 strongly, forty-four cases, okay, is something you
20 really seriously need to consider. That's what --
21 it goes back to my earlier comment this morning.
22 This is not a governance body, this is a body that
23 gets its legitimacy from a strong consensus from
24 the people. Okay? And as a consequence, action
O'BRIEN & LEVINE COURT REPORTING SERVICES
192
1 without that consensus is -- leaves you vulnerable
2 and leaves the purveyors of that action, okay,
3 equally vulnerable.
4 MS. DYSON: I think you just answered
5 your own question. That's part of what we have to
6 consider so that we don't do crazy things.
7 MR. CONRADES: Don, I'd like to ask you
8 a question. I thought that was well-said and good
9 advice, but if you begin, going back to what's at
10 least here, would you take out any language that
11 had the ability of the Board to act -- as it says
12 here, to act on matters that the Board finds are
13 necessary and appropriate to further the purposes
14 of the corporation? Is that what's bothering you
15 about --
16 MR. TELAGE: No, but Joe will tell you
17 he and I spent many hours crafting I think that
18 compromised language. My understanding -- I mean,
19 obviously I sit on boards and I understand that
20 corporations, profit or non-profit, have to act.
21 You have to, as a Board -- obviously you have to
22 do what's necessary for the good of the
23 corporation and for your mission. However, to
24 enact a policy change, okay, which may not be an
O'BRIEN & LEVINE COURT REPORTING SERVICES
193
1 emergency or required without a mandate from the
2 community is where you cross the line.
3 MR. ROBERTS: Yes, I think you've made
4 a very good point. I'd also draw attention to
5 people that in version four of the by-laws
6 revision, which was late August, that there were
7 new -- there was new language inserted having to
8 do with the obligation to offer reconsideration to
9 -- of a decision of the Board to any party feeling
10 that they are adversely affected by that decision.
11 Presumably, some of the comments here about the
12 worst-case scenarios, if parties felt that they
13 had been damaged by a decision, they can certainly
14 make use of the reconsideration provisions of the
15 by-laws.
16 MS. HOUWELING: We've been reminded by
17 our Internet observers that all of us, including
18 the Board members, actually, should identify
19 ourselves before speaking. I would like to freeze
20 the microphone lines right now. I don't think
21 we'll be necessarily out of time with these folks,
22 but I would like to lay out for you the other
23 questions that we had submitted after we get
24 through these comments to make sure that we don't
O'BRIEN & LEVINE COURT REPORTING SERVICES
194
1 have other stuff that we want to talk about on
2 those topics before we run out of time. The back
3 microphone, please.
4 AUDIENCE: (inaudible) SBC. My
5 comments dovetail to what Don was saying regarding
6 by-law and consensus of the supporting
7 organizations in creating a policy and so forth.
8 With some (inaudible), I notice in the most recent
9 printing of the by-laws that was submitted to NTIA
10 that there was a removal of the SO's as a primary
11 source of funding and there is also (inaudible) to
12 propose fees and changes -- or, excuse me, fees
13 and charges. So I was wondering if the Board
14 could tell me what financial laws they're basing
15 the business on and who's going to be the source
16 of funding for this organization?
17 MR. ROBERTS: Well, I'll respond to
18 that. In the earlier version, some people drew
19 the conclusion that the company would be solely at
20 the mercy of the SO's for its financial support.
21 That was a misimpression, we wanted to correct
22 that, and that's why we changed the wording.
23 Obviously the community is going to financially
24 support the company if it's going to be
O'BRIEN & LEVINE COURT REPORTING SERVICES
195
1 successful, and we'll work with you to choose the
2 specific mechanisms.
3 AUDIENCE: However, in the current
4 language, there's no method of doing so. There's
5 no -- there's no mention of the supporting
6 organizations having the ability (inaudible) fees
7 and charges that they're going to be subject to.
8 Do you see that as an issue?
9 MR. ROBERTS: There is a whole long
10 list of issues associated with this, and I'm in
11 receipt of at least a dozen different notions
12 about how to do that. And since nobody's had a
13 chance to think about that or (inaudible) any of
14 them, I don't think it's appropriate to comment
15 this afternoon on which direction it's going to
16 go.
17 MS. HOUWELING: Any other Board members
18 have something?
19 AUDIENCE: If we're not here -- if
20 we're not here to comment on anything, then what's
21 the point of being here?
22 MS. DYSON: No, no, we're here to
23 listen to your comments. We --
24 AUDIENCE: I -- well, I'm here
O'BRIEN & LEVINE COURT REPORTING SERVICES
196
1 listening to you.
2 MS. DYSON: But you see -- okay, again,
3 we, as a Board, haven't decided these things. You
4 know, we're not stupid, we understand that we're
5 going to need to get money somehow. And so we're
6 thinking about it, and at some point we're going
7 to have a Board meeting and decide. But before we
8 do that, we would be interested to hear your
9 comments.
10 AUDIENCE: Well, I -- and I'm
11 interested to hear your thoughts on the matter so
12 I can feel comfortable with the current Board as
13 it's constituted, because I don't know who you
14 folks are, quite frankly. I mean, you seem like a
15 great bunch of people, you're very -- you have
16 good credentials, but I don't know who you guys
17 are, and you're asking us to trust you.
18 MS. DYSON: Well -- okay, I --
19 personally, I think we should just charge
20 everybody in this room five thousand dollars and
21 it would be a good start.
22 AUDIENCE: (inaudible) check?
23 MS. HOUWELING: Front mic, go ahead.
24 MR. CONRADES: Could I make a comment
O'BRIEN & LEVINE COURT REPORTING SERVICES
197
1 on --
2 MS. HOUWELING: Yes, sure, you can make
3 a serious comment, I'm sorry.
4 MR. CONRADES: This is George Conrades
5 again. At the bottom of 44 are the six criteria
6 for the tests, you know, to be recognized as a
7 supporting organization, and one of them has to do
8 with membership and participation criteria. I'm
9 going to make a big assumption here that in there
10 would be some method of -- that could apply to the
11 financing aspects. And I agree with everyone
12 else, we have not really dealt with that.
13 Actually, the Roman Numeral VI under that section
14 actually does provide for -- one of the
15 requirements is for providing funding for the
16 corporation. So I think it is covered. The exact
17 method and mechanisms and charging and fee
18 structures is not covered. As to Esther's point,
19 that needs to be discussed, but there is something
20 in the by-laws that addresses that item.
21 MS. HOUWELING: Thanks. Anything else
22 from the Board? Let's have the front mic.
23 MR. ALUR: Hi. Joseph Alur from the
24 United States Council for International
O'BRIEN & LEVINE COURT REPORTING SERVICES
198
1 (inaudible) International Chamber of Commerce,
2 which has representation is over thirty countries.
3 I wanted to make two clarifications. One was that
4 we do see the need for expertise beyond technical
5 expertise in terms of technical as, I guess, the
6 engineering definition of technical, especially
7 since a lot of us use a specialty (inaudible) --
8 MS. HOUWELING: Closer to the mic,
9 please.
10 MR. ALUR: Sorry.
11 MS. HOUWELING: Thanks.
12 MR. ALUR: -- will deal with a lot of
13 commercial and legal issues as well. We also
14 think that in the creation of a DNSO, it has to be
15 done by a broad international community, which
16 would include users, subscribers, registries,
17 registrars, ISEs, consumers, businesses. It's a
18 broad panoply, as dictated by both the white paper
19 and the actual by-laws that have come out. And
20 through the ICC, we've been doing outreach to
21 business organizations so that we can more
22 coherently participate within this creation
23 process.
24 One of the things we're concerned about
O'BRIEN & LEVINE COURT REPORTING SERVICES
199
1 is, we understand there needs to be a time frame
2 and we understand that, you know, there has to be
3 a point in time that we should say stop -- and I
4 see mine is coming up. We're concerned that
5 December 15th may be an overly ambitious time
6 frame, and we'd just like to put that on the
7 record.
8 MR. CREW: Thank you. Let me assure
9 you the Board is -- the last thing the Board's
10 going to do is set arbitrary deadlines, but we
11 certainly are interested in getting -- in moving
12 the agenda forward in a timely way.
13 MR. ALUR: Joseph Alur with a quick
14 response. Based on, I mean, even the number of
15 issues that are brought up here, even when you
16 have three pages of criteria (inaudible) spelled
17 out indicate that these are issues that have
18 substantial depth to them, and consensus on them
19 would be hard to reach in a short time.
20 MS. HOUWELING: The back mic, and then
21 I think we're going to briefly take time to go
22 through the other questions that will maybe prompt
23 some thinking on them from the other folks at the
24 mic. Go ahead.
O'BRIEN & LEVINE COURT REPORTING SERVICES
200
1 MR. HAUBEN: This is Jay Hauben. I've
2 already suggested I feel that the Board is like a
3 private sector, who in the government should be
4 involved, but the question on the table is, where
5 do the support organizations fit in? And I think
6 that's a very important question. Where did they
7 come from? They certainly didn't come from the
8 library users or from the people who (inaudible)
9 chat groups. And so the answer -- the question
10 that the Board should answer is, why hasn't there
11 been a user SO created, what is the veto that's
12 already been stated by the user and Internet
13 community over this process and if there's any
14 chance of involving the Internet and using the
15 functions and the forms of the Internet to
16 understand how to create new types of
17 organizations that, in fact, include those things.
18 MR. ROBERTS: Yeah, I think that's a
19 very good point. I'd just comment that the user
20 SO was not supported at IFWP meetings, and in
21 the -- so it's disappeared off the radar screens.
22 It's clearly back on the radar screen now --
23 MR. HAUBEN: No, but I'm suggesting
24 that there's a veto that's been exercised by the
O'BRIEN & LEVINE COURT REPORTING SERVICES
201
1 users of the Internet because they don't feel that
2 this process has anything to do with them. This
3 isn't stakeholders, people that have economic and
4 financial stakes, but it's our lifestyle that we
5 have at stake, and that's different from the
6 financial and economic stakes that (inaudible)
7 groups have.
8 MS. HOUWELING: Thanks. A point of
9 order that's been brought to my attention. At
10 least some of you are missing some key pages from
11 the by-laws in your briefing book. I understand
12 page 134, which includes the full text of the by-
13 laws as well as the previous version of the by-
14 laws, the BWG and ORC proposals, so you do have a
15 full version, and page 134 has a key section on
16 fiscal matters. So we apologize for the
17 oversight. We will correct this on our on-line
18 version of the briefing book, if you want to
19 correct your briefing books when you get home.
20 And again, it is in there in the comparison
21 version.
22 Why don't we run through, before we get
23 to the end of our time, the other questions that
24 were identified in the on-line comments submitted
O'BRIEN & LEVINE COURT REPORTING SERVICES
202
1 in case any of you at the mic or others have
2 suggestions on ways of resolving these questions.
3 So is that the first one, then, that hasn't
4 been -- so (inaudible) review, we've touched on.
5 We've touched very much on initiating policy.
6 A definitive answer on the role of the
7 Names Council. There are a couple of questions
8 submitted about whether the Names Council was a
9 large body with an open membership or a small
10 elected top tier of a larger body. Does anyone on
11 the Board have a clarification for that or an
12 amplification of that question?
13 MR. ROBERTS: We hope the names
14 community is wrestling hard with the issue, and
15 we're anxious to hear from them.
16 MS. HOUWELING: And then why don't we
17 just go ahead and continue scanning down. We had
18 a question about the funding process, which we
19 have touched on. And we've touched on the
20 question of the relationship of ICANN to existing
21 organizations.
22 MS. DYSON: We would be interested in
23 hearing suggestions on how to fund ourselves.
24 MS. HOUWELING: If you can quickly
O'BRIEN & LEVINE COURT REPORTING SERVICES
203
1 scroll down and see if there's anything --
2 qualifications for SO's, we've gone over the by-
3 law provisions there. We've had several comments
4 on the technical or non-technical nature of the
5 SO's and the openness requirement in the by-laws.
6 We've raised the question of antitrust issues.
7 And I think, actually, the rest of the questions
8 on there were raised today. So let's move back to
9 the mics for our last few minutes. Go ahead at
10 the front mic.
11 MR. SONDOW: I'm assuming that -- it's
12 an assumption, it's not stated in the by-laws, but
13 a tacit assumption by the Board of Directors of
14 the ICANN that the membership, future membership
15 of ICANN will not be identical with the
16 memberships of the supporting organizations. Is
17 that correct?
18 MR. DYSON: Most likely.
19 MR. SONDOW: That is to say, there will
20 be a broad membership, a large and broad
21 membership of the ICANN which will elect or
22 select, in some way, the Board of Directors, but
23 that the memberships of the supporting
24 organizations will be specific memberships of
O'BRIEN & LEVINE COURT REPORTING SERVICES
204
1 those organizations. Is that correct?
2 MS. HOUWELING: It is likely to turn
3 out to be correct, but one of the criteria for the
4 SO's is that their membership be open as well,
5 so --
6 MR. SONDOW: Well, it seems to me that
7 it's essential to have some sort of balance of
8 power. I mean, a number of people have brought up
9 this question of the relationship between the
10 Board of Directors and the supporting
11 organizations. If, in the end, the memberships
12 become identical and if, indeed, the Board of
13 Directors is made up of -- even if it were only
14 fifty percent of people who were the direct
15 representatives of the three supporting
16 organizations, there is no longer any balance of
17 power if the memberships are almost the same, the
18 memberships of the organization as a whole and the
19 supporting organizations, those two memberships,
20 if they are identical, if they are almost the
21 same. And if the Board of Directors are chosen by
22 supporting organizations, basically you have no
23 longer two separate bodies, a Board of Directors
24 and supporting organizations.
O'BRIEN & LEVINE COURT REPORTING SERVICES
205
1 I mean, Carl Auerback -- the whole --
2 there's been a controversy that's been going on,
3 people have pointed out very clearly and insisted,
4 Carl Auerback and many other people, that it
5 doesn't seem theoretically logical that the Board
6 of Directors, even fifty percent of it, would be
7 made up of people designated one way or another by
8 the supporting organizations. It needs to be a
9 separate body.
10 MS. HOUWELING: Okay, I think the
11 question is clearly on the table to the Board.
12 Does anyone care to address it or -- it's a
13 concern, I guess.
14 BOARD MEMBER: Well, I'll take a stab -
15 -
16 MR. SONDOW: Excuse me, beg your pardon
17 for interrupting. Could Linda Wilson respond?
18 I'd be particularly interested to hear her answer,
19 and anyone else who wanted to, but I'd be very
20 interested to hear her.
21 MS. WILSON: I'm not prepared to answer
22 that at this stage of the game, because we're
23 still very much listening and trying to search for
24 the answers to this. It's a conundrum that we do
O'BRIEN & LEVINE COURT REPORTING SERVICES
206
1 have to deal with. We are very interested in
2 being responsive from now and on into the future
3 and to fill in the balances of power, but we're
4 also trying to make sure that every piece of this
5 is very open.
6 MR. CONRADES: Many of you folks --
7 George Conrades again -- have been searching for
8 our opinions. I think if you read the tests for
9 the supporting organizations -- well, let me back
10 up. I think if you re-read the mission of ICANN,
11 which really with addresses, domain names and
12 protocol, and think about the supporting
13 organizations that each (inaudible) and read their
14 membership criteria and then the acceptable of
15 that by the ICANN Board, and add to that the fact
16 that the other half of the Board is at large, I'm
17 not troubled by that which -- the troubles that
18 you perceive. I mean, as a generalization, I'm
19 not troubled by that constant --
20 MR. SONDOW: Well, at-large (inaudible)
21 membership. There's no built-in safeguard there.
22 MR. CONRADES: Well, we spent a lot of
23 time on that this morning, and I agree that
24 there's a lot to be debated about how the at-large
O'BRIEN & LEVINE COURT REPORTING SERVICES
207
1 gets elected and who they are, etcetera. But, I
2 mean, as a general construct, this -- the -- ICANN
3 has a functional mission for addresses, domain
4 names and protocol policy, procedures. And the
5 idea that the supporting organizations for each of
6 those would be made up of experts in those areas
7 and therefore elect people to that board, as long
8 as those processes are open and fair, that's not
9 troublesome to me. And then I agree on the
10 (inaudible) at-large, we had a lot of discussion
11 about how do we really get nine representatives
12 at-large geographically and certainly user base
13 (inaudible) there in some proportion.
14 MR. SONDOW: Excuse me, but you don't
15 see any conflict, any illogicality about having
16 the same people nominated as the leaders of
17 supporting organizations and Board members, the
18 same individuals?
19 MR. CONRADES: If they're elected, no,
20 I don't. I --
21 MS. HOUWELING: I do want to remind
22 everyone that we're unfortunately about out of
23 time and have another subject matter item for the
24 afternoon, so if there's -- there's something else
O'BRIEN & LEVINE COURT REPORTING SERVICES
208
1 from the Board, then we can move on.
2 MR. FITZSIMMONS: And actually, this is
3 obviously discussion that the Board has had a lot
4 in its short existence, and I think the things we
5 come to rely on are three -- is the checks and
6 balances that I think we just discussed in the
7 last forty-five minutes between the Board and the
8 SO's and that if there is an action or paralysis
9 in the SO, the Board can, in fact, initiate
10 action. Now, how realistic that is more than
11 (inaudible) can be called into question, but the
12 checks and balances still exist. And I think the
13 thing that makes that complete is the open process
14 and it's the postings, it's the communications and
15 it's meetings such as this and the posting and
16 commentary period. So I think we're depending on
17 those three things to work in concert for
18 everyone's best interests.
19 MS. HOUWELING: We're going to have to
20 freeze the --
21 MR. KRAAIJGNBRINK: Can I -- can I --
22 MS. HOUWELING: Sorry, go ahead.
23 MR. KRAAIJGNBRINK: -- just one quick
24 thing to this, to you here in the room? Is there
O'BRIEN & LEVINE COURT REPORTING SERVICES
209
1 a hidden time bomb in (inaudible) Internet if
2 elected Board members who are serving the
3 corporation on its mission to benefit the
4 (inaudible) society cannot be trusted to work on
5 the interests of the corporation and the society?
6 And it is difficult that the selection process is
7 (inaudible) communities, the community at large?
8 I get a feeling (inaudible) that there is a sort
9 of hidden time bomb. There are fundamental
10 differences of opinion within the Internet
11 community. If that's so, we will have a big
12 problem in the future.
13 MS. HOUWELING: Further from the Board?
14 Okay, the mics are now frozen, and let's try to
15 keep it to twenty seconds for the last few
16 comments so we can finish.
17 AUDIENCE: He just got three minutes.
18 MS. HOUWELING: Well, so we'll try
19 twenty seconds and maybe we'll stick to a minute,
20 but we do want to save some time for a final
21 comment. Go ahead. Everyone at the mic will have
22 a chance to go. At the back mic.
23 MS. HAUBEN: Just quickly about that, I
24 think there is a hidden -- a real hidden problem,
O'BRIEN & LEVINE COURT REPORTING SERVICES
210
1 and that is that the Internet is a network, and
2 networks can include a commercenet, but there's a
3 lot of pressure from very big parties with a lot
4 of power to make the Internet into a commercenet,
5 which will get rid of the Internet. So I think
6 that's the fundamental contradiction you're
7 dealing with. That is the time bomb. And this --
8 I think all of this is part of that effort, that
9 this private corporation is some of the pressure
10 towards forming that commercenet to replace the
11 Internet.
12 Secondly, the (inaudible) very
13 important, the Office of Inspector General talked
14 about giving 4.3 billion ID numbers domain name
15 system (inaudible) services to protocol control to
16 a private corporation. What kind of incredible
17 fund money that represents in somebody's hands.
18 Talking about funding and us having to pay
19 (inaudible) assets that are our cooperative
20 assets. Now, that somehow has been talked about,
21 you know, us paying when you're, you claiming,
22 don't realize what four (inaudible) two million
23 allocated, fifty dollars --
24 MS. HOUWELING: Okay, I think that's
O'BRIEN & LEVINE COURT REPORTING SERVICES
211
1 now a minute, which is our original time limit, so
2 if you could wrap up, we'll move onto the last
3 few --
4 MS. HAUBEN: -- (inaudible) the other
5 issue is policy. I didn't think the ICANN was
6 supposed to be making policy (inaudible) ITF
7 Boards. Maybe somebody should clarify --
8 MS. HOUWELING: Okay, Miss Hauben --
9 MS. HAUBEN: -- (inaudible) policy and
10 to keep that open, and that's changing now.
11 MS. HOUWELING: Thanks. We've got a
12 lot of issues on the table, and I remind all of
13 you again that we're submitting -- we're
14 soliciting written comments and also comments on
15 the Web site for those of you who have more to
16 say. Go ahead.
17 MR. DICKSON: I'm Jim Dickson. I'm a
18 director of (inaudible) and also the U.K. Internet
19 Server Providers Association. I'm answering the
20 question on the hidden time bomb on the Internet.
21 There is no hidden time bomb on the Internet. The
22 people who actually provide operational stability
23 for the Internet are the ISPs and the registries.
24 And for us, we don't care how long the process
O'BRIEN & LEVINE COURT REPORTING SERVICES
212
1 takes, to be frank; I mean the ISPs. The longer
2 it takes, the more trust we will have in this
3 Board. If we're ever going to have trust in this
4 Board, it's not now. It may be some day. I would
5 slow this process down rather than try to speed it
6 up. This Board is already proceeding too fast.
7 There is no time limit.
8 AUDIENCE: First of all, I
9 probably should tell people --
10 MS. HOUWELING: For the tape, say who
11 you are, please.
12 AUDIENCE: (inaudible) funds for ICANN.
13 What I'd like to see is specific language giving
14 the Board the ability to review proposals from
15 supporting organizations on the merits of those
16 proposals, not just by themselves. Also, I'd like
17 to have a specific statement which no funds will
18 be received whatsoever from a supporting
19 organization. The entity should receive its funds
20 via licensing these assets to the actual
21 operational companies.
22 MS. HOUWELING: Thanks. And I don't
23 know if Mike wants to start us off or any of the
24 other members have any summation before we --
O'BRIEN & LEVINE COURT REPORTING SERVICES
213
1 MR. HAUBEN: I made a comment about
2 what was the -- what was the significance of the
3 veto (inaudible) support organization, instead my
4 comment was what about the user (inaudible). I
5 don't think that that's a correct
6 characterization.
7 MS. HOUWELING: So noted.
8 MR. ZITTRAIN: Well, we're over time,
9 and I personally found this very useful, and we'll
10 crank it into our deliberations on this and move
11 along.
12 MS. HOUWELING: Good. Let's try to see
13 everyone back in ten minutes, and maybe we'll
14 achieve fifteen.
15 (Whereupon a brief recess
16 was held off the record.)
For additional information, please contact:
Wendy Seltzer, Ben Edelman, Alexander Macgillivray, and Antoun Nabhan.
Berkman Center for Internet & Society at Harvard Law School