PERSONAL BACKGROUND IN INTERNET
Formal Governance Necessary?
What is the Right Model?
Impact of the Term Governance on the DNS Debate
Impact of the Internet’s Increased Economic Importance
Technical Management or Public Policy?
ICANN Went Wrong
Postel’s Vision versus ICANN Today
ICANN be Fixed?
Fear of Capture
Role of NSI
Role of Jones Day
The Role of the Berkman Center
Consensus the Right Standard?
Does Consensus Limit ICANN’s Authority?
Let’s start with the big picture question.
What do you see as the internet’s greatest promise
Just optimistically, democratization of information, availability
of information, communication.
What kind of impact do you think that kind of democratization
will have in the best of all possible worlds?
Hopefully it will level the playing field so that those with
fewer resources will be at least somewhat more equal to those
with great resources. Let’s
say, for instance, the citizen who wants to be informed previously
had to go to a depository library for many kinds of information,
if we’re talking about the United States. Now many, many things are available over the
web. The burden of gaining
information is substantially lower.
That runs the risk of people assuming that everything
they want is on the internet so they pursue nothing elsewhere
What is the best way to realize that promise? It’s not hard to see that if you’re talking
about equalizing access to information and you’re doing it through
a technical mean like the internet, there is some question about
how some people with fewer resources are going to have access,
to have computers in their home or access to computers elsewhere.
There are some obvious questions that go with that.
What do you think the best way to realize that promise
Well, of course, it would be nice if the economics allowed everybody
to have computers and transmissions facilities in their home.
Certainly, under present conditions, things are far from
for example, I am a big proponent of facilities available in
libraries, local libraries or other local facilities for those
who don’t have and can’t afford these things in their home or
for people who are traveling and aren’t home but still want
to keep in contact. They
might have a computer at home but can’t afford a laptop. That’s a little more remote, but the ability
to go over to the library and find out about legislation and
government programs, to fill out forms and send them in, I think
is very important. Libraries are a natural fit. Most big cities at least have a public library
system with facilities distributed around their geography.
Is Formal Governance Necessary?
Q: What you’ve been talking about sounds like it is compatible with
the role of national government or even local governments, with
what those governments already do.
Do you think a formal governance structure is necessary
beyond what national governments provide?
I don’t think for that role and I am not convinced that we need
an international structure imposed on the internet.
Most obvious, the place that has gotten the most play
is the trademark issues. What we have really got is that under the banner of internet governance
we seem to be trying to solve an international trademark problem
that should have been solved quite apart from the internet. Already the issue of trademarks of crossing
national boundaries got substantially accelerated by, let’s
say, television. It
used to be, if we go back a ways, it would take years for a
product popular in one country to become a visible trademark
in another country, at least where you had to cross oceans and
things. Television certainly stood to coopt that. Radio in principle does but it had nowhere near the impact that
television did cross-culturally.
The Impact of the Term Governance on the DNS Debate
You said a minute ago that you thought a trademark problem was
being solved under a debate given the name of internet governance.
Given that, do you think the…a number of people that
we have talked to have suggested that the term internet governance
when it first came into the debate really changed the debate.
Many people seem to think that it is not a very accurate
description of what this debate is about, whether or not they
think it is about trademark issues or it’s about other issues
is beside the point. What
do you make of the use of the term formal governance for the
internet? Do you think it’s changed the tenor or the
politics of the debate?
One could take the view, as some do, that a lot of this whole
thing is about some issues of control of the internet, for example
the trademark issues. So
they’ve latched onto a nice, potentially neutral, almost godmother
apple pie term called formal governance.
In your mind what does formal governance mean?
Can you define it?
It would be some kind of statutory – by statutory I mean well
defined or reasonably well defined – formalities by which those
who are to be governed are providing authority to those to whom
they submit. Did I get
a sentence out that? I
am not sure. I guess, let’s say, it’s a formal structure
that governs those who agree to be governed by it or those who
cannot escape from being governed by it.
So whether it’s the constitution – the U.S. constitution,
the Haig convention, some international rules that govern shipping
lanes and behavior, all of that could be formal governance.
Is ICANN Governance?
Do you think ICANN falls under that term?
I think ICANN is the product of what was at least in name in
the Green Paper and White Paper history to be some formal governance
structure for certain internet related issues – the management
of technical considerations.
I can’t remember the right word…
Technical Management or Public Policy?
I think that’s the gist. The distinction we’ve heard people trying to
make over and over again is between technical management and
public policy. As you
look at what ICANN has done since its inception, do you think
that is a valid distinction to make?
It seems to have broadened its role substantially over technical
management. The word
technical – many people can disagree about it but there is some
element of technical that speaks to one’s guts in contrast 20
to what one normally calls policy issues.
So one might have expected basically the extension of
what IANA had been doing to be the issues that ICANN was going
to take over.
What issues that ICANN has taken on do you think have extended
beyond technical management?
For example, defining dispute resolution policy already reaches
into – the whole idea of resolving or harmonizing in theory
tensions between different national trademark systems – the
problems of jurisdiction…I don’t think it has enough time or
broad enough representation, even if we were to grant that it
was within their purview. I think it is far too early.
Where ICANN Went Wrong
I’ll interrupt your line of questioning for a minute and go
back to where I think this whole thing went wrong.
Or at least took a detour that it still hasn’t returned
from. That it, in the
summer of 1998 after the June 5 White Paper which had been preceded
by the Green Paper and various comments and a lot of discussion,
there was a mandate to form a corporation or at least an entity
to manage this. I believe a non-profit corporation was used,
I haven’t read the White Paper really since that summer. There were clearly a lot of issues and tensions
to be resolved in terms of representing different international
constituencies to at least make it a not wholly U.S.-centric
operation and decision. Whether that is necessary, whether there was
any obligation to do that is another matter.
If nothing else, the U.S. government would mandate that
as a gesture for which they conceivably expected some return.
For example, on at least a couple issues, there were
tensions – namely the export control, which I think the U.S.
wanted international cooperation on, and Europeans wanted their
data protection enforced, though that was at odds with the way
the U.S. wanted to do things.
All these were pawns on the political chessboard. In any event, given the rather I think complex
and not necessarily compatible desires about how the internet
might be run or how questions that come up about the internet
might be resolved and the mandate to try to get some equitable
or at least politically solution there, it seems to me that
the board that emerged was the wrong board. I don’t know if you’ve been told this but from
the late spring through Jon Postel’s death, I was meeting with
him every few weeks to sit and discuss these matters.
The meetings came about – I had known Jon since he was
a student but for the most part casually – in the early spring
of 1998 we were at a UCLA event and got to chatting.
He asked me if I could come over and talk with him a
little bit. Frankly, I thought it was going to be about the trademark specific
issues that were percolating at the time. So I went over to ISI and really the conversation turned to the
issue of where the governance issue was going to go. It coincided basically with the emergence of the White Paper.
At that time, I think we met just after – it might have
been the day the White Paper came out, I’d have to double check,
plus or minus a day. I
remember raising the issue and suggesting that the initial board
– the interim board, I should say – for the new entity should
really principally consist of people with enormous skills at
resolving debate and at creating structures of governance in
the atmosphere of parties with conflicts and different points
of view. So my particular
suggestions would go along these lines and I used these models
that the board should consist of the kind of people – the backroom
people – that broker and resolve the tensions between say the
Chinese takeover of Hong Kong or a large labor-management dispute
or other things where you have real issues between interested
parties and somehow they get resolved without one side getting
completely trounced. They
get resolved because of extended negotiations basically.
I believe that there are people who have those skills. For the sake of a model, Jimmy Carter is that
kind of a person. That
is the kind of person that I thought should be the dominant
part of the board because the initial role of the board was
not to answer the specific questions but to set the mechanism
by which all the questions that had been part of the internet
wars, so to speak, would be answered.
Instead, we really did not get people who had any experience
in this kind of thing, whatsoever.
Now, let me say, I think Jon resonated with that for
two reasons. One, we have to remember…I still ask myself – because it was never
entirely clear – why these discussions were taking place. I represented no constituency and no agenda. I, in fact, treated those meetings as he wanted
either somebody who was either pretty much independent or neutral
– not that I wouldn’t have opinions but at least neutral as
to having a constituency which I didn’t have.
BACKGROUND IN INTERNET ISSUES
What was your personal background in all of this? You say you
ran across Postel at a meeting. How did you become part of this circle?
I had been following it for quite a long time, at least since
early 1996. The general
issue of domain name policy, which was really an issue of ICANN
and dispute resolution, that because of wearing my hat as an
intellectual property lawyer with a technical background.
The disputes that were taking place in the courts about
domain names versus trademarks were already an issue and I started
following the name policy forum – for example the NSI domain
policy forum – and I became increasingly familiar with the issues.
As for the specific crossing paths with Jon, the UCLA
computer science department has, for instance, an annual conference
– basically a show and tell – of the department’s research.
He had spoken at the 1998 one and I think he spoke in
1997 also. In 1998, let me see, I think Vint Cerph was there, Judy Estrin was
there, all as speakers. He
was. So we just got to chatting because, as I said, I had been
on the faculty in the UCLA computer science department in the
1970s. So I knew him
when he was a graduate student and periodically we’d bump into
each other, mostly at UCLA events.
You want to keep in mind that the UCLA computer science
department was where Vint Cerph came from, Dave Crocker came
from, Jon Postel came from and a major piece of the internet
technology was developed there.
Postel's Vision versus ICANN Today
Let me just take us back to where I think we started out heading.
It seems to me that you are saying that at least with
respect to the composition of the board and perhaps in a more
general sense that the ICANN we have today diverges from the
vision that Postel had for it.
Yes. I have to infer that.
I had originally suggested the kind of board I just told
you. He took notes on
nay number of names that I had suggested, which were nothing
more than conjecture, like suggesting Jimmy Carter or other
people of stature above the fray who had no axe to grind and
who were probably smart enough to pick up – to the extent that
some technical appreciation of the internet was necessary –
they wouldn’t have trouble picking it up.
We came back to that in subsequent meetings and I have
to believe, given the time pressure he had from all the negotiations,
we would not have discussed it again if he didn’t have a considerable
interest and sympathy. He wouldn’t have been taking notes on
Are you aware of any other ways in which you think the current
ICANN diverges from what Postel was working towards and from
what you were working towards with him?
Any other ways it diverges?
Apart from the particular philosophy for putting the first board
I am not sure all the figures on the board are strong enough
in terms of their understanding. I think most of them for the first year did
not play a very active role.
We see mostly Esther Dyson and Mike Roberts names around
and not much else. So, I can remember him telling me in probably
late August about a couple of suggestions put forth by some
of the European interests.
He spoke of rejecting them because the people were too
low on the totem pole. The board just wouldn’t have the appropriate
mandate if you had third or fourth level representatives from
the third or fourth level government bureaucracy, for example.
You said something earlier that was interesting – that the reason
why you wanted to have experienced problem solvers on the model
of someone like Jimmy Carter was to set down a mechanism by
which the “internet wars” and all the questions they would bring
would be settled. When
you look at ICANN today, do you think they have put in place
the right kind of process to settle whatever substantive questions
come under their scrutiny?
It’s a little bit more complex and baroque than my taste would
have it. As far as I
can tell, there are just to many places where suddenly things
happen under some cloak of secrecy or by the fiat of somebody
who can control who plays. It seems to me that decisions without
going down into the alphabet soup of sub-organizations and sub-committees,
ICANN itself substantially operates without public notice.
I have deep problems with, for instance, with their holding
the meetings all over the world frankly.
On the one hand, it is a nice gesture to those other
countries where the meetings are held.
On the other hand, I think that the overall economic
burden on participants is much higher than if all the meetings
were held in Marina Del Rey.
Marina Del Rey is ten minutes from one of the biggest
international airports. LA
is certainly one of the cities to which relatively cheap fares
from almost any where in the world are available.
For Chile, that probably is not the case, simply because
Santiago is not a frequently traveled route for most of the
world and similarly for Cairo.
It is probably cheaper to go to LA from Japan than it
is to Cairo. I could be wrong but my guess is that it is.
What responsibility would a structure with the tasks that ICANN
has – what kind of responsibility do they have to be a global
institution, to have participation from around the world?
How do you serve that responsibility? It seems to me that the participation question
is a very big one for ICANN.
Well I am not sure I have the specific mechanism by way of an
answer. That was the
kind of thing that I would have wanted a professional governance/negotiator/mediator
types to work out because in some sense it is impossible to
simultaneously to get representation that represents little
guys and big guys, commercial versus non-commercial, and then
impose on that some kind of international balance.
You have deep statistical problems in getting that representation. To the extent that you can make it at least
it is not upper middle class, educated, U.S. people, you’ve
broadened it somewhat. Now,
I remember having a discussion with Jon Postel on this issue
because there were actually some excellent candidates that we
were both aware of but the trouble was that they were all graduates
of the UCLA computer science department and that could make
it subject to looking like it was too much of a stacked deck
by Jon Postel, even though these were graduates who had achieved
positions as high as you could hope in the governments of a
number of different countries – in third world countries, as
a matter of fact.
Is Consensus the Right Standard?
I want to segue to another topic since we’ve been talking about
participation. It seems to me that one of the things that ICANN says is that its
method of decision making – namely consensus – necessarily involves
the kind of participation that everyone is clamoring for.
I want to get your read on how you think consensus functions
in making decisions that have not just a technical component
but also increasingly a policy component.
Do you think that is the right kind of standard to use?
The consensus standard? I am not sure what else you can use other than
a formal vote. The problem
here is even defining who votes is tricky.
For example, putting aside the political squabble between
factions that currently voice themselves, who represents the
great mass of people such as you suggested earlier who don’t
even have computers – who don’t even speak English for that
matter – who perhaps in ten years might candidates to be participating
in the internet? Who
is representing them? On
the other hand, you could ask do they need representation?
I don’t have the answers to those.
I have some opinions.
So consensus works but consensus tends to come from committees
meeting. It represents the good will on the part of everybody trying to fashion
that consensus. Somehow
there seem to be places here where other opinions float in but
never come out and are marginally, if at all, reflected in the
final decision. The dispute resolution policy is, to me, fairly
questionable. Who are
the people making the judgments and what kind of standards do
they have? It would seem that there isn’t a balance between
someone who has a domain name for an innocent purpose and somebody
who has a trademark and would also like the domain name.
It is certainly a very common criticism of ICANN that its structure
is set up in such a way so that decisions about who should get
the domain name – the trademark holder or the person who innocently
holds it – are predetermined so that the trademark holder is
likely to win.
In the default setting, yes.
There’s been a lot recent discussion of the interpretation
of those decisions.
Fear of Capture
What do you think of all the talk from the some of the especially
vocal critics of ICANN that focuses on fear of corporate capture
– that trademark holders and other big economic entities will
have disproportionate control over ICANN?
Do you think those fears are real and have they been
I think the people who express them are very sincere in their
fears. No question about
I don’t mean to question their sincerity.
But are we talking about an institution that is likely
to – or has – fallen to those kinds of influences? Is this something
that really could happen?
Yes, but, putting aside the trademark issues, it is hard for
me to believe that IBM, let’s say the issues of trademarks are
the front line of their concerns about the functioning of the
internet. It’s much
more important that IBM has an enormous revenue stream coming
in from supporting internet commerce and selling goods and services
in that connection. So they presumably want to see it continue functioning. So I am not completely clear what necessarily
IBM’s “agenda” for the internet might be, other than to see
it functioning. Maybe that is exactly it. It’s a kind of negative. The internet has become
too important to leave to a relatively small group of techies
to manage. So it isn’t that they have any Machiavellian,
horrible plans for it, so much as they just want to make sure
they are standing there to make sure nothing bad happens. If one reads, for instance, Gordon Cook, who
tends to have a conspiracy theory view of the world or makes
conspiratorial inferences from the jobs one has had.
So one might have worked at A and B and C and that tells
why they are now in D. I
don’t quite draw things quite as Machiavellian or conspiratorial
as Gordon does. Although he accuses IBM of trying to maintain
control, it is not clear to me why they are doing it, other
than, for example, to make sure it doesn’t get broken.
Just to loop back a little bit to the consensus question.
You seem pretty comfortable with the term consensus.
Would you define it?
How do you know when you have it? What does it look like?
The problem with consensus – my gut tends to think of it as
coming out of people actually interacting and working together,
which is somewhat different from just everyone sending in their
opinions. Now everybody
sending in their opinions might yield consensus if those opinions
are all on the table of a group that meets periodically and
sits around that table and works their way through them.
Do we have, for instance, in the White Paper a consensus?
Well, it certainly shifted from the Green Paper. I think it took cognizance of the comments
that were received. Whether
we call that exactly consensus, I am not sure, but at least
it gave some credibility to a lot of the input they got. It
also wasn’t – I would say it was not too rushed given that people
were already talking about those issues. Some of the things that ICANN has done have
seemed to me to move far too fast for people to respond, except
for people who are on the payroll of somebody who has an interest
in the issue. It’s extraordinarily burdensome for anybody
who is doing it from a public interest point of view and who
Does Consensus Limit ICANN’s Authority?
What do you make of the argument that you hear about consensus
– not in the decision-making mode we’ve been talking about but
more generally – the argument that ICANN seems to make that
its own authority is limited by the need to keep the consensus
and backing of the global internet community behind what it
does. So, theoretically, if it announced a policy that major stakeholders
or enough stakeholders to account for a major percentage of
the global internet community felt was really overstepping its
boundaries, then they could withdraw support and the whole system
would come tumbling down. Do you think that is an adequate description
of some real limits on ICANN’s authority?
On the one hand, I do, except I think the radius that it gives
them is too big under that model. What one is saying is that they can’t rattle
too many cages without risking their livelihood. Maybe that’s not true since contractually they now have money coming
in to support their continued existence. The question is to the extent that they have captured control of
domain names, they’ve got an enforcement mechanism. I think it is dreadful how lopsided all the registration statements
are. I think likewise
dreadful how technically poor the whole shared registration
system is. Somehow all these things speak of rushing to
get things in place without doing the proper homework. Getting those in place is ICANN’s perpetuation
or establishment of its legitimacy and role.
You said you think the radius that that view of the limitations
on ICANN’s power provides is too broad.
It’s like somebody saying ‘Trust me.’
As long as that…Esther Dyson has used those very words.
It is deeply troubling in her particular case.
Let’s say her willingness to do the IBM ad. I don’t really begrudge for her getting the money, but I think in
the role she is playing she has to – despite her statements
that there was nothing to it, that she wasn’t being paid to
take positions, that this wasn’t graft and corruption – nonetheless
the appearance of impropriety is bad. With that, she happened to – that kind of catalyzed
– a certain disrespect on my part or at least a certain loss
of faith that she had really the proper view of the what the
role she was playing was.
So what in addition to that kind of broad consensus – what kind
of mechanism do you think is necessary to limit that radius
in which ICANN is acting?
That was the kind of question that I felt that the interim board
that never was, of which I spoke before, would have answered,
whether it was adjusting the bylaws to create some voting mechanism
on issues where they would have created members (under what
California law calls members for a public benefit corporation)
or just implementing in the bylaws some method of being sure
the board of directors is more active and informed.
For example, one of the things that I talked about with
Jon was that I felt that the board of directors should get paid
a reasonable stipend for their role. The reason I felt that was that it would somewhat
democratize who could serve on the board of directors. It would make it possible for them to be really
working board members and not just titular positions. It’s very much based on something said by people
who were on some of the committees.
I think for a significant percentage of those people
it’s a line on the resume for their being there. At least, they
don’t see it as a working role.
Can ICANN Be Fixed?
It seems to me that a lot of what you have said and what others
have said about ICANN is critical not so much of substantive
decisions – though certainly people have opinions about those
too – but the real concern about what ICANN is doing is that
it is not setting up the right kind of process.
In essence, it doesn’t have the legitimacy that it needs
to even do the minimal tasks it was originally envisioned to
do and certainly not to take on any broader role.
Do you think ICANN has blown it from a legitimacy standpoint?
Is there something can be done to fix ICANN going forward?
I am not sure it is not fixable but it might requiring unwinding
some of the Byzantine structure and mechanisms it has created
on the various committees and sub-organization side to do that.
That might or might not be difficult.
It could revisit the dispute policy if it wanted, creating
a less hurried and somewhat broader mechanism to address that
issue. On the question
of choosing new board members, it could conceivably come up
with a mechanism that spoke more towards representation and
legitimacy. There’s been some criticism about how the additional board members
are going to be chosen and the fact that there’s a nominating
committee that is essentially going to be insiders choosing
who will be the candidates for nomination.
The Impact of the Internet’s Increased Economic Importance
How would you say the rise in financial stakes that now ride
on the internet has changed this debate? Do you think it has
distorted the process of formation of ICANN? Has it changed the language or politics of
When you speak of financial stakes, do you mean the amount of
e-commerce that is now on the internet and the economic role
the internet is playing in society.
Yes. And because a number of the institutions involved are big economic
players, not just in this debate but in political debate generally.
The domain name system, in particular, kind of has the
feeling that if there weren’t a lot money riding on some of
this, that no one would really know about it. It would still be in the hands of a small group of techies and no
one would ever think twice.
But now we’re having – well it is still a very small
percentage of people who know about ICANN – but it is still
a heated debate with people throwing around high constitutional
language. It seems to
me that one of the things that might account for that is that
suddenly there is a lot of money at stake.
Well suddenly people became aware that there was a lot of money
at stake. Certainly
that was clear already in 1996. I’ve got to believe that the major players knew where things were
going even though e-commerce in and of itself was not what it
was this past Christmas. But
the fact that it was going to get there was certainly clear
enough. For instance,
I think the allocation of address space, which doesn’t get a
lot of public discussion, is actually a big issue for a lot
of people. That wasn’t as nearly a big an issue five years
ago. Now maybe with
that change in protocol that won’t be a big issue again because
there will be enough addresses to go around for every toaster.
Right? But at least until we’re there, it is an issue. There are certainly very large issues such
as control of access to the internet in countries where governments
still want to maintain control and there are issues of the Europeans
and many others not liking the U.S.-centric view of what the
internet is about. There are other troubling things that stand
somewhat apart from the ICANN discussion.
For example, the English-centric nature of the internet
basically closes a great amount of it to people who speak the
several hundreds, if not thousands, of languages that actually
exist around the world. They don’t necessarily need people to read
the U.S. Constitution in English.
I shouldn’t say English-centric, but the fact that six
or eight languages cover most of the economic activity of the
developed world so no one will develop tools or access in languages
that are other than those six or eight. To the extent that the internet becomes ever
more a big piece of the landscape, a great number of people
around the world will remain completely disenfranchised from
the ability to play in the modern world.
What is the Right Model?
Do you think these kinds of concerns and certainly the possibility
that national governments around the world will take increasing
interest – both for financial and political reasons – in overseeing
the governance of the internet, do you think that pushes us
towards some kind of international structure that is based on
a treaty model as opposed to something like ICANN which is the
baby of U.S. contractual law? Is the treaty structure a better model?
It probably is only because in one sense it will move slower.
On large policy issues, there is no hurry notwithstanding
how fast the internet seems to move.
The reality is that what moves fast is the adoption by
lots of people and the development of an e-commerce infrastructure.
Ultimately, the fact is that it is not much different.
It provides a mode of communication of information and
data which it was doing twenty years ago and certainly ten.
Something that requires a little more deliberation and
something that comes closer to consensus at least at the nation
state level, I think would be desirable.
The flipside of that is to argue that what happens at
the nation state level is still the big players.
But that isn’t quite true because small countries tend
to get more of a vote, independent of their economic development,
although obviously they are subject to a lot of economic pressures
by the big guys.
Here’s your chance to look into your crystal ball a little bit.
Where do you think this debate on internet governance
will be ten years from now? Will we still be talking about ICANN
at all? Will there be something else in the works?
I would be inclined to expect that….to some extent the real
source of ICANN’s power is that we have a single root system.
To the extent that alternate root systems develop, ICANN
could be rendered impotent – at least the current ICANN because
you don’t need to contract with them to be on the net.
In some sense, you’d have an overlay of parallel nets
that will have to talk to each other. If that develops, ICANN may have a real problem.
The issues then will be just the technical ones to keep
the thing running. Perhaps
some international treaties governing things like data protection
and other very large issues will appear and maybe some international
treaties that finally try to resolve the trademark issue.
What do you think the best thing that ICANN can do is? What
could be its greatest success?
You caught me off guard…
I’ll give you a tip on the next one – what the worst thing ICANN
I suppose on the worst side there are probably technical issues
that they meddle and that might get decided too politically.
I think on the technical level the issue of implementing
other character sets for non-Roman based languages.
There’s an issue where ICANN could play a useful role
because it is not a purely technical issue, I suspect.
It cuts across all variety of nations and cultures.
[ICANN] conceivably could be a useful for that to be
discussed and not just the IETF, which might restrict itself
to the technical implementation.
That suggest you think that ICANN necessarily has a broader
role and that it is not just technical management.
Well, it could coordinate that even though maybe the ICANN board
isn’t actually making the decision, just as IANA to some extent
coordinated a lot of decisions that in fact were policy decisions
and was in fact making them. But that was when the stakes weren’t
quite as high. Basically,
IANA was deciding allocation of the address space, for example. I am not completely clear how much discussion
there was there. I am
not sure the ICANN board at least as envisioned by the White
Paper should be making broad policy decision but they could
be catalysts or they could provide mechanisms for those things
to be made. Those things
could be made by the ITU, for instance, or WIPO or some organization
like that. But there
is probably good reason to have a somewhat newer organization
because those – let’s say the ITU – is sort of old and slow-moving
and traditionally captive of the national telcos.
This would give us a chance to get a little new blood,
as opposed to laying certain decisions into the laps of those
The Role of NSI
A bit of a random question that comes to you because we haven’t
asked others and you’re the last interview.
When you read through some of the postings that people
have put on message archives and some of the correspondence
that has been made public between various players in the debate,
you see a lot about the role NSI is playing in this internet
governance debate. How
would you characterize that role?
Up until at least recently, NSI’s role was basically of commercial
self-interest. I think there are many who are not great lovers
of NSI who would still say NSI has played its own self-interest
very effectively. Criticism
of NSI is really criticism of the U.S. government’s decision
to contract away control over the domain name system. But NSI is motivated by maximizing profit for its shareholders so
their behavior is presumably predictable and makes some rational
sense. Look at what Ellen Roney says. It makes some sense. When you look at some of NSI’s behavior – let’s
say with respect to the dispute resolution agreement and registration
statements – you see it is paranoically protective. They’d have much greater liability selling an electric apparatus
that may kill you if it malfunctions.
The question is why is that there.
Ellen has suggested it almost represents a kind of fortress
mentality that perhaps is inherited from its parent SAIC. I think that makes some sense because the writing of the dispute
resolution parties fails to treat the other party – namely the
registrant – in the way you would expect something that is really
dealing for all practical purposes with consumers.
It just doesn’t have that flavor in any way, shape, manner,
or form. One asks why?
Can you describe a little bit the parent organization?
I am not familiar with it.
SAIC? Go up on the website and look at it.
SAIC is a major government defense and information technology
contractor. I can ask
you to check that on the website because I am going from a Gestaldt
without remembering specifics.
They do a lot of secret defense/intelligence work is
probably the way to put it.
I think they are something like the third biggest government
contractor. I would
have to double check but I first heard the comment that about
half of the past ten secretaries of defense have been on SAIC’s
board. That gives you some flavor. I believe currently on the board – or at least
until recently – was Bobby Inman who had been the head of the
National Security Agency, which is the heartland of government
intelligence and technology.
I always thought an awful lot had to be seen in terms
of….I wasn’t worried about NSI, for example, because SAIC I
have to believe knows how to protect its interests with the
government as well as anyone possibly could and have the connections
to do it.
Let’s see. SAIC.com.
They are putting on a kinder, gentler face on the web,
“Improving patient care.” Science Applications International Corpation.
That’s it. I am sure they’ve got a hand in a lot of commercial
venture because of the ever-shifting nature of government funding
and focus. It’s incredible
to me that the National Security Agency is having the trouble
and criticism and budget issues that it is.
Because even from somebody – lets say myself who if I
had to be thrown on a linear spectrum would come out on the
moderately liberal side – I think traditionally that many of
the roles that NSA plays are nonetheless extremely valuable. If you poke around that SAIC is fairly interesting.
They’ve presumably done well by their shareholders in
selling NSI to VeriSign. I think was a $4 billion revenue company,
something of that magnitude.
Here they’ve sold off about 20% of stock in NSI in the
initial offering and more recently sold off another big block
but still had well over 50%. That’s not bad when it’s $15-18 billion that
VeriSign is paying. Granted
it’s in VeriSign stock, I’d prefer to have it in the brand new
silver dollar coin
The Role of Jones Day
I don’t have any further questions for you.
Is there anything you want to put on the record?
could send you the little thing I wrote to Karl.
It runs roughly along the following, notwithstanding
the fact that I’ve always had an antipathy to conspiracy theories
and things. As I think about some of the stuff that Gordon Cook
says and as I think about how did we get to where we are, how
is it that two lawyers from Jones Day have such key positions? In particular, Joe Sims who has played I would say a striking role.
I would trace it under two assumptions.
One is that Jones Day is a major, nationwide firm that
represents large corporations. I think that in doing that large corporations
look to firms like Jones Day not only for specific legal services
but for sort of minding the store and for the right relationships. If you want to call it that, thing shading
towards a lobbying role. I
say that because one looks and always finds major political
figures who are lawyers retire from government into big firms.
These are often people who are not in a position to be
actively practicing. They’re
basically marketing. Given
that that’s the role, out from IANA comes an RFP saying we are
looking for a law firm to help us.
After my first meeting with Jon, he gave me a copy of
that RFP which had gone out in April. I want to say it was over
Joyce Reynold’s signature but whoever sent it out it said, ‘We’re
IANA and we’re looking for a pro bono law firm to handle this,
this and this’ which included the corporate formation which
was coming down the pike. Jon specifically told me that any number of
players specifically stepped up to the plate, amongst them Jones
Day and twelve to fifteen other law firms.
He spoke of choosing Jones Day in spite of the fact that
it had no internet division, group or familiarity.
He really felt that they were motivated by the fact that
they wanted to create an internet presence as players and as
lawyers in the internet sphere and that they were ready to put
more resources to it than any of the other firms. That is how he described their being chosen. Why would they have stepped up to that plate?
With the idea of keeping as close to these issues…I mean
it is a wonderful way if you are representing clients whom you’ve
told you’ll keep tuned into what’s going on. They’ve essentially put themselves right in
the center of what’s going on.
I don’t want to accuse them of Machiavellian purposes
but just to say what a better way to be fully informed.
Of course, they have some influence conceivably, even
without trying to have influence on behalf of any other clients
which would be technically a conflict. So there was Joe Sims. I still have a copy of Joe Sims’s business
card that he gave me. The
occasion of Jon’s death happening when it did suddenly put Jones
Day in a remarkable position.
There was Joe Sims who had been probably spending more
time with Jon than anyone else or was as close to him as anyone
else de facto carrying the ball.
It is my belief – although tempered by having to check
the timing – that the composition of the board got substantially
shifted by the fact that an awful lot of the final decisions
had to have been made or heavily influenced by Joe Sims.
Suddenly what might have been an information gathering
effort – because why would Jones Day get into that? Jones Day
is too big a firm to … it’s livelihood is not going to depend
on being able to litigate domain trademark disputes.
I don’t see that as a major revenue source. I do see it as being important to Jones Day’s clients that Jones
Day be fully informed about this so it stepped in there for
that purpose – to be informed and conceivably to have some influence
and suddenly it found itself in a remarkable position due to
the tragedy of Jon’s death. I think that has to have colored the history
ever since. There they
The Role of the Berkman Center
Just one follow question to that since we’ve covered the role
of Jones Day in all of this. What’s the role of the Berkman
Hard to tell. There has got to be some mixture of public
interest on the one hand and sort of being a major establishment
player – by being Harvard.
It’s an opportunity for the Berkman Center to keep itself
on the map, though although maybe they were completely on the
map before. I am not
a regular student of policy and the kind of issues that the
center makes its livelihood on.
While on the one hand I think their role is to basically
facilitate communication, on the other hand just by virtue of
the fact they are helping facilitate things, it probably makes
people more friendly to each other.
Some of the more radical elements of this discussion
consider the Berkman Center part of the enemy.
Maybe that is true to some extent.
They give some legitimacy to ICANN that probably it wouldn’t
have otherwise. Their relationship to ICANN gives them some
visibility too. I don’t
know if the working papers coming out of there are as critical
of ICANN as they should be.
That I wouldn’t want to say. Other than somewhat facilitating ICANN, I wouldn’t
fault them particularly.