Center for Internet and Society
The Debate Over Internet Governance:
A Snapshot in the Year 2000




    Karl Auerbach
    Fred Baker

    John Perry Barlow
    Dave Crocker
    Jay Fenello
    Carl Kaplan
    Michael Krieger
    Jamie Love
    Eric Menge
    Charles Nesson

    Mike Roberts
    Joe Sims


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   The Internet
   Participants' Internet
   Participants' Biographies


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Michael Krieger

I.                     BIOGRAPHY


III.                 THE INTERNET

IV.                 GOVERNANCE

a.       Defining Governance

b.       Is Formal Governance Necessary?

c.        What is the Right Model?

d.       Is ICANN Governance?

e.      The Impact of the Term Governance on the DNS Debate

f.        The Impact of the Internet’s Increased Economic Importance

V.                   ICANN

a. Technical Management or Public Policy?

b.       Where ICANN Went Wrong

c.        Postel’s Vision versus ICANN Today

d.       Can ICANN be Fixed?

e.        Fear of Capture

g.       The Role of NSI

h.       The Role of Jones Day

i.         The Role of the Berkman Center

VI.                 CONSENSUS

a.        Defining Consensus

b.       Is Consensus the Right Standard?

c. Does Consensus Limit ICANN’s Authority?

VII.               THE FUTURE

March 18, 2000


Q: Let’s start with the big picture question.  What do you see as the internet’s greatest promise

A: Just optimistically, democratization of information, availability of information, communication.

Q: What kind of impact do you think that kind of democratization will have in the best of all possible worlds?

A: 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

Q: 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 is?

A: 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 equalized.  However, 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.

GOVERNANCE: 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?

A: 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. 

GOVERNANCE: The Impact of the Term Governance on the DNS Debate

Q: 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?

A: 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. 

GOVERNANCE: Defining Governance

Q: In your mind what does formal governance mean?  Can you define it? 

A: 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.


Q: Do you think ICANN falls under that term?

A: 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…

ICANN: Technical Management or Public Policy?

Q: 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?

A: 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.

Q: What issues that ICANN has taken on do you think have extended beyond technical management?

A: 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.

ICANN: Where ICANN Went Wrong

Maybe 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. 


Q: 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?

A: 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. 

ICANN: Postel's Vision versus ICANN Today

Q: 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.

A: 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 it. 

Q: 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?

A: Any other ways it diverges?

Q: Apart from the particular philosophy for putting the first board together.

A: 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.

Q: 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?

A: 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.

Q: 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.

A: 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.

CONSENSUS: Is Consensus the Right Standard?

Q: 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?

A: 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.

Q: 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. 

A: In the default setting, yes.  There’s been a lot recent discussion of the interpretation of those decisions.

ICANN: Fear of Capture

Q: 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 realized?

A: I think the people who express them are very sincere in their fears.  No question about that.

Q: 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?

A: 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. 

CONSENSUS: Defining Consensus

Q: 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?

A: 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 isn’t salaried.

CONSENSUS: Does Consensus Limit ICANN’s Authority?

Q 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?

A: 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. 

Q: You said you think the radius that that view of the limitations on ICANN’s power provides is too broad.

A: 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. 

Q: 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?

A: 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. 

ICANN: Can ICANN Be Fixed?

Q: 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?

A: 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. 

GOVERNANCE: The Impact of the Internet’s Increased Economic Importance

Q: 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 the debate?

A: 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.

Q: 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.

A: 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.

GOVERNANCE: What is the Right Model?

Q: 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?

A: 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.


Q: 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?

A: 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. 

Q: What do you think the best thing that ICANN can do is? What could be its greatest success?

A: You caught me off guard…

Q: I’ll give you a tip on the next one – what the worst thing ICANN can do?

A: 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. 

Q: That suggest you think that ICANN necessarily has a broader role and that it is not just technical management. 

A: 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 existing organizations. 

ICANN: The Role of NSI

Q: 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?

A: 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?

Q: Can you describe a little bit the parent organization?  I am not familiar with it.

A: 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.

Q: Let’s see.  They are putting on a kinder, gentler face on the web, “Improving patient care.”  Science Applications International Corpation. 

A : 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

ICANN: The Role of Jones Day

Q: I don’t have any further questions for you.  Is there anything you want to put on the record?

I 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 were. 

ICANN: The Role of the Berkman Center

Q: 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 Center?

A: 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.



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