17 MR. ZITTRAIN: We now begin our final
18 session of the day, conflicts of interest,
19 transparency, procedural issues. I know we have
20 to have a hard close at 4:00 so people who wanted
21 to get out to Logan can do so. I understand the
22 Board, or as many people as possible, will stick
23 around afterwards, though, to mingle and talk. As
24 you can see, we're evolving our own means of
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1 integrating the technology and having the format
2 go as we go through the day. Hopefully it's
3 getting better rather than worse. And with that,
4 I would like to introduce my colleague partner in
5 all Berkman Center activities, Charles Nesson, who
6 will lead us in our last session.
7 MR. NESSON: Thank you, John. The
8 subject is transparency. My sense is that we
9 would all like to hear from the Board, and I
10 thought that a subject as conceptual as
11 transparency might be an ideal one to explore with
12 this. So transparency is the subject. It's a big
13 subject. It starts with Socrates and runs through
14 (inaudible) right to you, right to you. What does
15 it mean to you? Linda Wilson, transparency, what
16 does it mean to you?
17 MS. WILSON: It means that if we --
18 MR. NESSON: Can we get the mic up?
19 She's pretty close.
20 MS. WILSON: The transparency, it seems
21 to me, is fundamentally important to this being a
22 global (inaudible) utility. And so any
23 organization that tends to try to support it and
24 intends to try to support it has got to be able to
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1 function in a way that is pretty open. My biggest
2 concern about this is how to be extremely open and
3 still function in a timely way, because the
4 Internet, by its very nature, functions with a
5 very high speed of rapidity. These are the types
6 of things that have been on our minds as we've
7 been trying to put the by-laws together and
8 certainly will always be before us.
9 MR. NESSON: George Conrades, what
10 would be a measure of openness? How would one --
11 if one were to say now I want to measure the
12 transparency of ICANN, what would be the measures?
13 MR. CONRADES: Well, personally, I
14 think that's a great question. We haven't spoken
15 (inaudible). But certainly just to take one
16 section, section 3, notice and comment provision,
17 there could be measures around the provisions that
18 we have here for notice and comment, timely
19 publication, advance notice of meetings, etcetera,
20 etcetera, such that we'll agree to (inaudible)
21 fall behind -- and I think we committed to twenty-
22 one days, as I remember, for getting out the
23 minutes. If we fell behind twenty-one days, there
24 would be a (inaudible).
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1 And that may seem quite minor, but it
2 seems to me that we could develop a measuring
3 scheme around the provisions that we've stated
4 here for transparency (inaudible) really don't
5 have measures in there.
6 MR. NESSON: Well, perhaps before we
7 get to measuring, we need to know what we're
8 measuring. So like Frank Fitzsimmons, at a
9 conceptual level, when you are thinking yourself,
10 imagining, you know, three years out, five years
11 out, have we succeeded in establishing this as a
12 transparent enterprise, just in your head,
13 conceptually, what would be the elements for you?
14 MR. FITZSIMMONS: Well, I think, being
15 a marketer, my first instinct is, we're going to
16 do a survey, and then we're going to do a survey
17 to clarify the questions and answers of that
18 survey. But I think that --
19 MR. NESSON: That's already a pretty
20 good answer.
21 MR. FITZSIMMONS: That's -- well,
22 actually -- and I think, obviously, there's been
23 people looking for mechanisms to get that input
24 back and to measure input, so sometime in our
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1 lifetimes, I believe that will be possible, to
2 measure that satisfaction with the people and the
3 process. I do think the fundamental things
4 underneath transparency (inaudible) in this case
5 the trust model, and it is the by-laws and it is
6 the structure we're talking about today, it is the
7 actual checks and balances between the Board and
8 the SO's and the at-large membership. It is the
9 processes, the processes (inaudible) into in terms
10 of posting for comment.
11 And I think -- I don't know how you can
12 measure people's satisfaction with being heard.
13 And being heard doesn't necessarily mean that
14 everything you say was adopted. That's not being
15 heard. Being heard is that somebody listened,
16 considered, was educated on the topic and saw your
17 point of view and actually, in some cases, like
18 any good lawyer, could argue your point of view.
19 And I think the third thing that comes
20 into transparency or trust is actually the people.
21 And we talked a lot about nobody trusts the Board.
22 And my trust model, quite frankly, is that trust
23 is a factor or a function of experience over time.
24 And it's obviously been a very short time that
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1 we've been in front of this room. So trust will
2 not come quickly, and trust also doesn't go away
3 quickly if there's one bad experience. So it's
4 those structures -- I think it's the structure,
5 the processes and the people.
6 AUDIENCE: You think trust doesn't go
7 away quickly?
8 MR. FITZSIMMONS: I think if you have a
9 good experience with people or an entity or
10 organization or a process for a long period of
11 time and you have one bad experience, I don't
12 think that overcomes a good history of good trust.
13 I don't think it goes away quickly after a period
14 of good experience.
15 MR. NESSON: It's the second one that
16 gets you.
17 MR. FITZSIMMONS: Yes.
18 MR. NESSON: One, you'll give him a
19 chance on because you trust him, but the second
20 time you screw him, you're out the door.
21 MR. FITZSIMMONS: Maybe the third.
22 MR. NESSON: Hans, do you see
23 transparency and openness as having a spiritual
24 quality to it?
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1 MR. KRAAIJGNBRINK: Well, thank you
2 very much for that question. Maybe there is. I
3 believe that transparency is also something like
4 the fairy tale (inaudible) very transparent.
5 (inaudible) the United States, I believe that the
6 quest for transparency in the governing process
7 maybe can be commented upon from the European
8 point of view. I believe that transparency has to
9 do with being open and clear and (inaudible) at
10 the end, you have succeeded and I believe this
11 Board may have succeeded in the situation where
12 after a year, at the 30th of September, we have
13 accomplished our task and you are sorry to see us
14 go.
15 MR. NESSON: It's going to be a
16 problem, isn't it? We're going to come to love
17 you, and when you finally do adopt a method for
18 replacing yourself and all resign en masse, we'll
19 cry.
20 MR. FITZSIMMONS: Bye bye white guys.
21 MR. NESSON: You do have a certain
22 uniform complexion. Esther, do you think openness
23 and transparency has a rhetorical character?
24 MS. DYSON: Well, I --
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1 MR. NESSON: I ask that because I
2 noticed at the beginning of the meeting -- well,
3 perhaps I should ask this as a question instead:
4 What would you pick out in this meeting as having
5 been evidence of transparency and openness?
6 What's happened here?
7 MR. CREW: Well, I think we are seeing
8 people speak their minds, they express their
9 doubts, and that's been accepted as the normal
10 mode of operation, I think, in a meeting like
11 this. And we, as a Board, have listened. If we
12 haven't responded as much as people would like,
13 it's because perhaps some of us don't have views
14 on these issues, some of us only encountered the
15 subject very recently. And on the other hand, we
16 might have views, but we want to keep an open mind
17 to other points of view.
18 I think openness, transparency comes
19 about through -- not by accident, but by working
20 on them. You need to put in place a process which
21 enables people to become involved, to be observant
22 -- to be able to observe what's going on; not only
23 to be visible, but transparent means you can see
24 through it, and that therefore the underlying
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1 reasons for what's going on is also (inaudible).
2 MR. NESSON: Exactly. And there was --
3 way back in the opening, I forget exactly what it
4 was, but you said something, and I think you
5 said -- it was said in rhetorical terms. And I
6 was just struck by it. I said this person has --
7 well, I want to ask you: In what sense, what does
8 transparent mean to you?
9 MS. DYSON: Well, I want to go back
10 again to my favorite topic, which is Russia,
11 and --
12 MR. NESSON: Say it again?
13 MS. DYSON: I want to go back to my
14 favorite topic, which is Russia.
15 MR. NESSON: Russia.
16 MS. DYSON: It is a place that gave me
17 a horror of closed-ness, secrecy, power exercised
18 in secret, people afraid to tell the truth. And
19 so to me -- first of all, you know, whatever you
20 call it -- and this panel, at some point, also
21 said there would be accountability. This is
22 something two-way. It is both listening and
23 understanding in both directions.
24 And the second is, you know, how do I
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1 make these people accountable. And at some point,
2 we do want to address that as well. But to me,
3 being open isn't simply posting your minutes out.
4 To be honest, when I read our minutes, I'm
5 embarrassed. Like any legal minutes, they say
6 almost nothing.
7 And I think it is our duty and it's --
8 frankly, we've got to do it or we won't win
9 anybody's trust, not just to post our minutes, but
10 to explain what we did, what was our reasoning.
11 And sometimes that means we have to trust you,
12 because we need to explain, well, we did this
13 because, you know, there are these two points of
14 view and we're trying to find a balance between
15 them. And sometimes we need to make explicit
16 things that our lawyers would prefer for us to
17 keep implicit. But at some point, I'd rather say
18 these things, I'd rather ask Frank about his
19 contract, I'd rather point out that there's
20 tensions between the SO's and the rest of the
21 community than simply try and hide it and pretend
22 it's not there. So to me, transparency is not
23 simply exposure, but explanation.
24 MR. NESSON: Why don't I suggest a
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1 radical idea to you. I'm a lawyer. Hmm? Did I
2 hear something?
3 MR. AMBLER: Are we going to have --
4 we're running out of time. Are we going to have
5 any comments from the Board at all?
6 MR. NESSON: Right this second.
7 MR. AMBLER: Questions?
8 MR. NESSON: Go for it.
9 MR. AMBLER: Hi, Chris Ambler. I'm
10 here on behalf of myself. You talk about trust
11 and you talk about trust being established and you
12 talk about openness. And this meeting's been very
13 open going in, but I haven't seen much openness
14 coming back. To establish trust, you have to
15 have, as was said, good dealings over time. And
16 we've had a very short time, and in that short
17 time, we've already got very bad feelings. Can I
18 get some --
19 MR. NESSON: What's your bad feeling?
20 MR. AMBLER: Can I get some answers
21 from the Board about just how transparent your
22 selection was? It was very opaque. And we've
23 already got some bad feelings about that, and
24 you're saying, well, we'll explain to you what we
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1 did and why we did it, and that will create trust.
2 It's the other way around. You have to be trusted
3 when you explain these things so people will say,
4 okay, we trust that you made these decisions and
5 that's why, and they were good decisions. So
6 where's the transparency in how you were selected?
7 MR. NESSON: I have heard the answer
8 from Joe Sims, and I'll -- it's like up to us to
9 accept it or not. He basically said, these people
10 were touched by Moses. They were selected by John
11 Costello, for starters.
12 MR. AMBLER: (inaudible)
13 MR. NESSON: Take a shot. Okay, no,
14 you don't trust them. All right. We'll have to
15 do a few things. So far we haven't done much of
16 anything. That's what they're saying. Except
17 having a meeting, which is as transparent as we
18 can make it.
19 MR. AMBLER: But when questions have
20 been asked and answered -- I haven't had any
21 substance back. I've heard plenty of fantastic
22 questions and I've heard fantastic comments from
23 all sides of this issue, but I haven't gotten
24 anything back. I have no reason to trust this
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1 Board, because none of the questions that I heard
2 that were so good have been answered yet.
3 MR. NESSON: Now wait a minute. You
4 have reason to trust precisely for that reason,
5 because these people told you for starters that
6 they're coming in pretty cold to this. They've
7 got a long way to go before they figure out
8 anything. And I hear everyone else saying slow
9 down, slow down. I don't see them rushing to
10 answer your questions. Let's get another one.
11 David Johnson.
12 MR. JOHNSON: David Johnson. I do
13 represent (inaudible) Associates, but I'm speaking
14 on my own behalf. I think if we look forward, one
15 of the things the Board can consider, even before
16 it's had notice and commentaries and the formation
17 of SO's, is to begin to initiate more concrete and
18 specific studies of the mechanisms that will help
19 to answer these problems of trust. One of the
20 most fundamental of the accountability terms is,
21 how can we be sure that you will follow the by-
22 laws? Representation by membership is not really
23 enough to protect that. Fine words on paper are
24 not necessarily enough to protect that.
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1 We need -- if we're going to have an
2 authoritative set of text to define your vision
3 and limit your powers, we need an institutional
4 mechanism to have the conversation about whether
5 that is what is being done, not because -- even if
6 we trust you, in your own view of the by-laws,
7 there may be different views about what the by-
8 laws mean and what they ought to mean. And if
9 someone feels that the by-laws have been violated
10 in a way that harms them, then they need some way
11 to assert their case. Should they go to the
12 attorney general in California (inaudible) on a
13 global basis, should they bring a lawsuit?
14 (inaudible) for all concerned.
15 One other possibility that is
16 contemplated by your own by-laws is your creation
17 of a reconsideration process and the possibility
18 of establishing a neutral party who can give a
19 place for someone who is unhappy to go to to make
20 a record that's presided over by someone who is
21 not on the Board and who at least presents the
22 view of that neutral process to the Board so that
23 at least (inaudible) would be a factor in play.
24 MR. NESSON: That's a -- it's --
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1 listen. It's like an argument, right? It's like
2 it's a proposal you're making. Yes?
3 MR. JOHNSON: Yes, a suggestion --
4 MR. NESSON: So, you know, write it
5 down and make it -- it's a good proposal.
6 MS. DYSON: I'd like to respond.
7 MR. NESSON: Please.
8 MS. DYSON: Unfortunately, this is for
9 Chris, I can't promise anything on behalf of the
10 Board, and I don't have an answer to this, but I
11 can say that as a member of the Board, I think
12 this is something we should think about. And I
13 don't know what that means, whether it means how
14 we design the reconsideration process. Some
15 people would basically like to see another board
16 that would be elected at large by who knows what
17 membership, you know, some kind of -- again, a
18 balance of powers, maybe there's an alternative
19 dispute resolution process we could use. We're
20 well aware that the major means right now is for
21 somebody to go to court, but are they going to go
22 to court in the United States or in France? Which
23 laws apply where? And so this is a very important
24 issue. There's the notion of (inaudible) hearing
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1 panels. It's something we will be considering.
2 We also want to look at the cost and delays of
3 this in time and money and the value of it. Both
4 of these are legitimate questions.
5 MR. JOHNSON: I think exactly the
6 beginning of the process in which the concerned
7 and somewhat untrusting community begins to work
8 specifically on what those thoughts and delays and
9 mechanisms might be is something that could be
10 getting underway.
11 MR. NESSON: Absolutely. Thank you,
12 David. Carl again back here?
13 KARL/AUDIENCE: I'd like to sort of
14 engage in a (inaudible) exercise. There was
15 various proposals from VWG and others that
16 suggests that Board votes, at least on significant
17 matters, be on the record before so that the
18 membership actually has some material in which to
19 exercise their franchise. Since that didn't end
20 up in the currently-adopted by-laws, I would just
21 like to hear from Board members why they chose to
22 (inaudible) that provision, that specific
23 provision. I'd like to hear their opinion on
24 this.
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1 MR. NESSON: Okay.
2 MR. CREW: Yes. I personally oppose
3 the thought that a board publishes the voting
4 records of its members. A board is a governance
5 body for an organization, and it tries to achieve
6 a degree of coherence so that it is making
7 decisions on the best interests of all of the
8 constituency. You may have a director who is
9 representative of a particular body who brings and
10 advocates the point of view of that body, but in
11 listening to the arguments on the board, decides
12 that another course of action is going to be in
13 the best interests of the constituency and votes
14 accordingly. It's inappropriate for that to be
15 then recorded, because then his own particular
16 constituency feels that he's not abiding by their
17 rules and throw him out. It's a board of a
18 company, it's not a government, and that's my
19 view.
20 MR. NESSON: Could I ask for a rule of
21 preference on the mic for people that are leaving
22 at 4:00? The people leaving at 4:00, you've got a
23 privilege.
24 KARL/AUDIENCE: I'd just like to finish
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1 up (inaudible) did take a majority vote to go one
2 way or the other and also answer the question of,
3 if we don't know how the Board voted, then how is
4 the membership supposed to be a membership? How
5 is it supposed to know what Board members are
6 doing?
7 MR. NESSON: Thank you (inaudible). We
8 can talk on the subject of conflict of interest.
9 MR. SONDOW: There's a general flavor
10 about the ICANN which has disturbed me all along.
11 I think it needs to be brought out. The very
12 first article or by-law talks about charity.
13 Well, that seems to be a misapplied word. There's
14 a whole kind of tenor that's gone on, and because
15 this was defined as a non-profit organization,
16 that idea seems to become infused with ideas of
17 charity and money not passing hands. But I think
18 that's very disingenuous, hypocritical, actually,
19 because we're talking about commercialization on
20 the Internet, privatization. The major trend on
21 the Internet is commercialization.
22 I believe that within a year or two,
23 the ICANN will be taking in all the money it needs
24 to operate, and perhaps more. I don't think
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1 financing the central Internet authority is going
2 to be a problem. I want to bring up the question
3 of why it has not been proposed to hire people to
4 work for the ICANN, all the way from the Board of
5 Directors down to technical officers, hire people,
6 pay them salaries and therefore buy their
7 allegiance to the ICANN rather than having the
8 continuing what seems to be like a hypocritical
9 and false volunteer relationship with people on
10 the Board and the supporting organizations,
11 etcetera? I don't believe that you can avoid a
12 conflict of interest if you depend on people's
13 generosity and good will. You have to pay them a
14 salary and get them to work for the ICANN. That's
15 my feeling. I don't see a rationale explanation
16 of what this whole charity, non-profit, no-salary
17 sort of nonsense is all about.
18 MR. NESSON: Well, the Berkman Center
19 is contributing its services charitably.
20 AUDIENCE: Is that a reasonable long-
21 term plan for the ICANN, to have people working
22 for charity? Could the Board --
23 MS. DYSON: Yeah, let me -- I'll take
24 this very briefly, because we're short on time.
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1 The staff are, indeed, paid. Mike is paid. The
2 Board members are not. Our expenses are
3 reimbursed. You know, as a Board member, I would
4 be happy to be paid, and maybe we should consider
5 that.
6 MR. NESSON: Could we keep things to a
7 minute now? Professor Kemp?
8 MS. KEMP: Yes, I'm Jane Kemp from the
9 Kennedy School of Government. This -- you're not
10 the Board of Directors in many ways. This is
11 really about government. And many of the
12 arguments we're hearing are about what
13 (inaudible). If you have a big government with a
14 big paid staff (inaudible). It's about
15 government. And I believe that because I believe
16 that we're citizens of the Internet, and we're not
17 all shareholders and that you have duties greater
18 than simply making the greatest return. However,
19 I'd like to point out that the Internet has
20 thrived very well with very little government,
21 and, in fact, that has been one of the things that
22 has allowed us to thrive.
23 And so I'd comment on the by-laws that
24 (inaudible) etcetera, that the essence is that it
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1 would be better to develop an organization which
2 can do little and tends to gridlock at this point
3 in time than it would be to develop an
4 organization that is easily captured by a powerful
5 -- small, powerful interest. And finally, that
6 you are with the challenge now of building an
7 organization that is difficult (inaudible)
8 powerful interest, but is flexible enough to grow
9 with the needs of Internet governance, and I think
10 -- which -- well, which all is luck (inaudible).
11 MR. NESSON: Thank you. Mr. Rotuski?
12 MR. ROTUSKI: Charlie. You said that
13 the Board hasn't made any by-law decisions yet,
14 but one of the most fundamental decisions it could
15 have made, it did already, and that's concerning
16 the subject of so-called (inaudible) country TOD's
17 when it declared that these are within (inaudible)
18 jurisdiction of countries, and that's a dramatic
19 departure and frankly, I think, wrong in the law.
20 So the question is, what process did you use to
21 make that decision? How did people vote? What
22 information did you have before you? And are you
23 going to consider undoing that declaration? Thank
24 you.
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1 MR. NESSON: Anybody want to respond to
2 that? Yes.
3 MR. ROBERTS: Well, first of all, the
4 Board didn't make the decision to change the
5 status quo. It was asked a question and it
6 answered a question, and the response said, we
7 will sustain the status quo. Now, if you want to
8 have an argument on the record with us about you
9 don't believe what I just said, then we'll
10 certainly get together with counsel off-line and
11 talk about it. But the Board had no intention and
12 hasn't changed the status quo with regard to the
13 provisions that John put in place to handle that
14 issue. It is widely thought that those processes
15 need review and updating, and so they will
16 undoubtedly come to us for exactly that reason.
17 MR. NESSON: Yes?
18 MR. FENELLO: Jay Fenello, Microdome.
19 This morning we talked about membership and this
20 afternoon we're talking about fair, open and
21 transparent processes, but in actuality, the goal
22 is, is how to make this Board accountable to the
23 Internet community. To be accountable, whoever
24 you're accountable to has to have the power not
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1 only to appoint you, but to remove you. In order
2 to do that with knowledge, we have to know how you
3 (inaudible) things and why you make the decisions
4 that you make. For these reasons, being that it's
5 twenty-one days after the fact is not appropriate,
6 it's not sufficient. Transcripts are better. In
7 fact, what has to be better still.
8 All of these concepts were discussed
9 with these Board members, ten out of eleven of
10 you, yet these concepts were not incorporated in
11 your by-laws (inaudible) U.S. government. The
12 question is why? This is a perfect example of why
13 these concepts are important. If you have
14 rationale reasons for your decisions, you should
15 make them available to the Internet community so
16 we can support you in those decisions. So we
17 still don't know what the details of those minutes
18 are, we don't know the details of why you make
19 your decisions.
20 So I'd like to summarize in the words
21 of Ronald Reagan, and I can't say (inaudible).
22 MS. DYSON: We did, in fact, say --
23 Greg said, I think, that we did, indeed, consider
24 those things and we don't think that they lead to
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1 effective decision-making. You know, there are
2 checks and balances in here.
3 MR. NESSON: Well, may I interpret the
4 question and see if I can elicit something more
5 from it from the Board? The question is, how
6 comfortable are you actually operating in the
7 open? And it can be carried through not just to a
8 question of corporate minutes and corporate
9 meetings, but to your full role as director of the
10 corporation. In a sense, openness is part of the
11 art of living, in some way. So, for example, I
12 find that my e-mail is a key part of the actual
13 transactional world that I'm now in, and I feel
14 that ICANN, if you're doing the job, is doing
15 something historical.
16 So the question would be, at what point
17 does your e-mail get archived and become public?
18 At what point do we see the thought process that
19 actually goes into whatever that screen is that
20 requires just enough delay to be practical, and
21 how fully does the screen come down? Who wants to
22 answer?
23 MR. KRAAIJGNBRINK: Well, I can try to
24 answer it, at least in part. I do not agree that
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1 the Board, up to now (inaudible) the adoption of
2 the by-laws, and you will find both (inaudible)
3 you'll find the reasoning of our decisions and the
4 reasoning behind (inaudible). If you would insist
5 on total transparency, which, to me, then would
6 mean that every Board meeting would have to be
7 (inaudible) of secretive meetings --
8 AUDIENCE: Why?
9 MR. KRAAIJGNBRINK: Why? Because a
10 decision-making process cannot be done in full
11 public.
12 AUDIENCE: What?
13 AUDIENCE: Why?
14 AUDIENCE: What?
15 MR. KRAAIJGNBRINK: The United States
16 government does not --
17 AUDIENCE: C-Span?
18 MR. KRAAIJGNBRINK: -- the United
19 States government does not meet in public. The
20 executive meetings are not in public, at least
21 (inaudible). The government reports on the
22 results and explains them reasonably. And I
23 believe that's what's (inaudible), because the
24 Board is a body, the Board is not a collection of
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1 individuals. And what you (inaudible) have to
2 reckon with is that we came from many different
3 directions, from many regions in the world, even,
4 and even amongst ourselves, we have to have a
5 learning process to come to fully reasoned and
6 reasonable decisions. So --
7 MR. NESSON: But Hans --
8 MR. KRAAIJGNBRINK: -- as I said -- as
9 I said before --
10 MR. NESSON: Hans --
11 MR. KRAAIJGNBRINK: -- you're asking
12 for the new clothes of the emperor, which is
13 running naked.
14 MR. NESSON: But Hans, isn't it just
15 possible that the learning process is exactly a
16 process of learning to live more in the open?
17 MR. KRAAIJGNBRINK: I think the
18 movement in this would be two ways. I believe
19 that the -- I believe that the working of the
20 Board will be more transparent than it has been up
21 to today. But on the other hand, I believe that
22 from (inaudible) listening today is that they have
23 to accept that a number of discussions for the
24 Board as a body will not have to be public. There
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1 is no need to be -- to watch every word we say,
2 because if you are speaking public, you have to
3 think about every word, you have to think about
4 aspects of privacy. Because in discussing
5 personal issues or things concerning (inaudible),
6 it cannot be put in public.
7 MR. NESSON: Let's go with the
8 questions. We've only got a few more minutes
9 left, so let's really keep it to a limit. Go.
10 MR. NELSON: Michael Nelson with IBM.
11 I bring a little bit of a different perspective
12 here. I spent ten years working in government,
13 working with organizations that are required to
14 function under some very strict rules on
15 transparency and openness. Many of the proposals
16 here regarding this have been inspired by
17 (inaudible).
18 I think we really have to think
19 seriously about the costs of some of the proposals
20 that have been made. As Esther said, you don't
21 get this for free. If you talk seriously about
22 Webcasting Board meetings, you have to understand
23 what that means. As Hans said, that would mean
24 that all real decisions would be made off-line,
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1 some other place, some other time. People who are
2 proposing these measures of transparency have a
3 burden on them to justify these mechanisms. The
4 real answer here is to have a board that produces
5 products, proposals, decisions that they can
6 explain, that they can justify. We don't need to
7 come up with a labyrinth of mechanisms that have
8 never been tried before (inaudible) to answer this
9 question. And as I say, the people who come up
10 with these proposals for transparency, show us
11 where they've worked before, give us models, just
12 show me where the Red Cross or (inaudible).
13 MR. NESSON: Thank you. Next at the
14 back mic?
15 MR. GREENWELL: I have a few items to
16 direct -- I'm sorry, Patrick Greenwell, Internet
17 Service Providers Consortium. I have a few items
18 that are related to the by-laws, but I'd like to
19 take a moment to answer that gentleman's question
20 from IBM. As a board member of the Internet
21 Service Providers Consortium, we have two
22 sessions: We have a general session or meeting
23 and we have an executive session. Executive
24 sessions are for discussion of personnel matters
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1 only. That is the only time that we are a closed
2 board. Any other times, we are completely open to
3 membership attending the meetings, and we have
4 found it works very well.
5 Now, as to the issues with the current
6 by-laws as proposed to NTRA, the current by-laws
7 still allow that the Board not disclose any
8 information that it, at its discretion, does not
9 feel is fit for public (inaudible). That is the
10 problem. I can understand and appreciate that you
11 would not want to do that for personnel issues,
12 but there is no excuse for not doing that for
13 anything else.
14 MR. NESSON: Could we just limit you to
15 one point? I mean, you made a great point, but
16 we've got lots of other people in the line.
17 MR. GREENWELL: Certainly.
18 MR. NESSON: Go ahead, front, David.
19 Excuse me, Michael.
20 MR. AHEARN: Mitchell.
21 MR. NESSON: Mitchell.
22 MR. AHEARN: I think the challenge for
23 this organization isn't achieving transparency.
24 The challenge for this organization is going to be
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1 to achieve opacity. Because of your location at
2 the nexus of the Internet, everything you do is
3 going to be examined in far more detail than
4 almost any non-profit or for-profit organization
5 that has ever existed before. And I think that
6 what we've seen here is that transparency reveals
7 the ambiguity of your decision-making process, and
8 ambiguity is interpreted by people here as
9 obfuscation, and obfuscation is opacity. It's a
10 paradox, and I don't know a way out of it. We're
11 going to have to figure that part out.
12 MR. NESSON: I think it's trust. Back
13 row?
14 MR. HAUBEN: Jay Hauben. I think there
15 are two real strong and important questions on the
16 table. I think one is, how do we scale
17 (inaudible) so that we can achieve truly universal
18 access to communication for everybody in the
19 world? And I think the second question is how we
20 can scale the administration of the Internet to
21 involve the governments of more than just the
22 United States? I think we have an example here of
23 the questions just raised about transparency of
24 why the government, the U.S. (inaudible) they
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1 don't want that kind of transparency. But it's
2 the government bodies that deserve and should have
3 that transparency, not you people. You should
4 leave this to the U.S. government, who deserves
5 that transparency, and they should carry on in
6 bringing this to the rest of the world by opening
7 up and sharing the administration with other
8 countries.
9 MR. NESSON: Front mic?
10 MR. POLK: Hi, Ivan Polk, Net Names and
11 various other things. I've been closely involved
12 in (inaudible) at least for the last ten and a
13 half years or so. I just want to say, there's a
14 sort of criticism of anybody who gets up in front
15 and tries to move things on, and I've been
16 involved in that process in the past. This is not
17 the government of the Internet, this is not an
18 organization, it's not a Board that's going to run
19 everything forever, and the people in this room
20 are not representative (inaudible) into the room.
21 There's a lot of absolute belief from individuals
22 (inaudible), yet I've never heard solutions
23 actually expounded. I would like to say, I think
24 this Board, with all its undoubted faults and
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1 problems, is about as believable and neutral as
2 we're going to get.
3 Remember, these are people who have not
4 been involved in this argument before, and we've
5 been waiting for that for a hell of a long time,
6 so let's get behind it and get things moving. I
7 think what the whole community here really wants
8 is some movement and settlement of some processes
9 so we can get on with the things that we're really
10 supposed to go, which is not get in rooms like
11 this and argue about nit-picky little points.
12 Let's get on with building the things we're
13 concerned with in the real outside world. Thank
14 you.
15 AUDIENCE: (inaudible) there's too much
16 distrust. The Europeans don't trust the U.S. The
17 U.S. doesn't trust the Europeans. Latin America
18 has chimed in. (inaudible) fundamental principal
19 (inaudible) trust. I also view ICANN as the
20 Internet's IPO. And as one of the millions of
21 investors in the Internet and in this IPO, I would
22 want to buy stock in ICANN, but I can't do that
23 yet because I don't see an S1, I don't see a
24 business plan. Until we get a business plan in,
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1 one which clearly articulates the goals, mission,
2 staffing and operation and legal sensitivity
3 analysis and financial projections for three years
4 for ICANN, we cannot put trust into ICANN or make
5 any decisions (inaudible). So I'd like to see a
6 business plan. Thank you.
7 MR. NESSON: Thank you. We'll -- let's
8 just freeze the line at this point, because we're
9 right running up to time. Yes?
10 MR. FOREMAN: Rich Foreman,
11 Register.com. I think that I'd like to make a
12 proposal on a way that the Board can operate, as
13 Hans mentioned, in some degree of privacy so that
14 decisions can be made, but also to release their
15 findings afterwards. And that's very similar to
16 the way the Supreme Court operates, which is,
17 their discussions occur in private and their
18 deliberations occur in private, but once a
19 decision has been reached, the public understands
20 who voted for what and the basis for their
21 decision. So that if there is dissention, the
22 public gets to know what each Board member's
23 thoughts are and so that the public has a better
24 understanding of which Board members they want to
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1 support, which Board members they don't want to
2 support so that the Board can still operate at its
3 own -- not secret, but in a more -- less formal
4 and more relaxed manner so that better decisions
5 can be made. The other thing that I wanted to --
6 MR. NESSON: One to a customer, how
7 about that?
8 MR. FOREMAN: Okay.
9 MR. NESSON: Havea?
10 HAVEA: (inaudible) On the subject of
11 accountability, we believe that there should be no
12 information for why (inaudible), but we agree with
13 the Board members (inaudible).
14 MR. NESSON: Thank you. Mr. Dickson?
15 MR. DICKSON: Yeah, Jim Dickson for
16 (inaudible). The purposes of the -- of ICANN were
17 very carefully spelled out in the articles. They
18 are actually very narrow. They are Internet
19 protocols, (inaudible), DNS and operation of the
20 route name server. There's a little problem in
21 this whole process for me. I mean, on the one
22 hand, it's so ill-focused and has so little to do
23 with the purposes of ICANN. On the other hand, I
24 can't see that this Board has enough to do to --
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1 sorry to say this -- can we trust (inaudible)? I
2 have asked a number of people if they would trust
3 the ICANN Board with the operation of the route
4 name server. Everybody has said no, and this is a
5 real problem.
6 MR. NESSON: But why is that a problem
7 once the corporation is fully formed, with the
8 standing organizations represented so that you
9 have basically (inaudible) of stakeholders there
10 who are steeped in the technology?
11 MR. DICKSON: You're asking for a great
12 deal of trust. You're saying, well, once we get
13 way down the road and things are okay, well,
14 things will be okay, you say. But we're not down
15 there. At this point, should the route name
16 server be taken away from NSI and turned over to
17 ICANN's management? I can't -- I couldn't go for
18 that. I don't know anybody else who could.
19 MR. AUERBACK: Hi, it's me, Carl
20 Auerback again. I don't care whether you call it
21 governance or management or whatever, but it is
22 control of a fairly small section of Internet, and
23 I will choose to call it governance, as it is
24 definitely not business, for-profit business as
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1 usual. Now, governance is expensive, and we
2 should talk about Webcasting. I have my credit
3 card here, and I will offer to buy the equipment
4 to put the Board meetings onto the Web.
5 MR. NESSON: Thank you, Carl. Thank
6 you, Carl. Ronda, somehow it's fitting that you
7 get the last word.
8 MS. HAUBEN: (inaudible) because what I
9 would trust is where there was the work to find a
10 prototype of an on-line process where people would
11 discuss the issues, the Board would see the
12 discussion and would have -- would be part of that
13 discussion and then the decisions would grow out
14 of that discussion, not that some Board off
15 somewhere else goes and makes a set of decisions.
16 So the Internet way is the unique way,
17 in fact the way that needed to be dealt with here,
18 and that's what my proposal is, and I haven't
19 heard anybody on the Board have any understanding
20 of the Internet that it's not decisions by you,
21 but it's your participation in our community that
22 is the only thing that will make you trustworthy.
23 And I don't see that you have any understanding of
24 that, and I don't see how you can have an
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1 understanding at this point. And I guess I'm --
2 the whole Internet community hopefully will either
3 teach you that or find a way to get rid of you,
4 but really that's the way for the Internet, and
5 this is very different from anything I've heard
6 (inaudible).
7 MR. NESSON: Sort of like you're the
8 voice and they're the mouth.
9 MS. HAUBEN: That by them being part of
10 our process, they help to figure out and can
11 contribute to it and it gets figured out by the
12 community, not (inaudible) --
13 MR. NESSON: Thank you, thank you,
14 thank you. Esther, I turn it back to you.
15 MS. DYSON: Okay. A lot of people have
16 to leave. Those of you who stay, we welcome the
17 opportunity to talk with you further. In some
18 sense, yes, all you can do now is trust us or walk
19 away. We hope, after four months or five months,
20 you'll be able to trust us on the basis of
21 decisions we have made and explained. This is
22 only the first of many meetings, maybe not such
23 meetings, maybe some of them will be smaller and
24 more productive and more focused, but this is only
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1 the first of many opportunities you will have to
2 talk to us and we will have to talk to you. We
3 hope we will have more answers, but we need to
4 think about what you told us. We learned a lot.
5 And, you know, I'd like -- I don't know, I'd love
6 for the other Board members to talk, but we also
7 need to get those of you out who want to go out.
8 So I just -- I ask this with some trepidation, but
9 let me say it this way: How many of you are glad
10 you came?
11 (Responses)
12 MS. DYSON: Okay. Thank you very much.
13 Thank the Board.
14 (Whereupon the meeting was
15 concluded at 4:10 p.m.)
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For additional information, please contact:
Wendy Seltzer, Ben Edelman, Alexander Macgillivray, and Antoun Nabhan.
Berkman
CONTACT INFORMATIONFor additional information, please contact:
Wendy Seltzer, Ben Edelman, Alexander Macgillivray, and Antoun Nabhan.
Berkman Center for Internet & Society at Harvard Law School