Mon Sep 18 20:41:10 EDT 2000
ICANN MAL candidate questionnaire: Eric Grimm
[Eric Grimm is no longer an MAL candidate.]
1. ICANN presents itself as a "technical coordination body for the
Internet." Do ICANN's activities to date support this description?
No, they do not.
2. ICANN describes itself as "transparent," "bottom-up," and
"consensus-based." Do ICANN's activities to date support these
No, they do not.
3. The "stability" of the internet is a staple if ICANN's rhetoric, as
if to suggest that the net is a fragile entity that needs to be
protected. What do you think ICANN is protecting it from?
I was not aware that the Internet needs to be protected from anything other
than ICANN and capture by old-economy interests. ICANN is heavily
infulenced by old-economy mainstays and such interests are heavily
over-represented in ICANN decision-making organs.
With the advent of the Internet, barriers to entry came crashing down and
economies flourished as new market entrants and new ideas had an opportunity
to establish themselves.
The "old economy" and the status quo have fought back with predictable
results. These predictable results have been nothing but bad for the
Internet and innivation.
ICANN is at the forefront of the effort to re-erect anticimpetitive barriers
to entry and to suppress the activities of new competitiors and new market
4. "Global" top-level domains pose a basic quandary, which can be
summarized thus: everyone in the world can point somewhere and say
"there," but there can only be one there.com, one there.net, and one
there.org. Many people have legitimate claims to what, within the
limited context of DNS, appear to be the same words. Rather than
expanding the namespace in order to produce a diversity more adequate
to the rapidly expanding demand for new domains, ICANN has devoted
much of its resources during its first two years to developing a
global policy for arbitrating conflicts. In the balance, was this the
Absolutely not. Moreover, I am skeptical whether ICANN and WIPO have in
good faith sought to "develo[p] a policy for arbitrating conflicts."
Rather, the procedures are set up all wrong if the objective is fair and
impartial resolution of disputes.
Rather, the whole purpose of the project appears to be a wholesale transfer
of Internet naming rights away from rightful and proper registrants to
slow-acting entities that filed to register them first. This policy was
adopted despite the lack of any showing of any concrete harm from allowing
domain name conflicts to be resolved in the marketplace. The only showing
that was made was a showing that WIPO's constituency was upset by how things
had been developed and the demonstrated fact that WIPO's constituency were
shown not to be as smart as they had previously pretended to be.
5. Should the refusal of the country-code domain registrars to pay the
invoices ICANN submitted to them be seen as a referendum on ICANN's
legitimacy as a "global" organization?
I had not thought of this, but such an argument could hypothetically be
made. The question is whether the legitimacy of ICANN depends on
recognition by nation-states. I am not convinced that nation-states,
individually or collectively, should be vested with authority to determine
which organizations or entities are "legitimate," and which are not. This,
too goes for whether the U.S. Department of Commerce is vested with
authority to proclaim the "legitimacy" of ICANN or any other so-called
Perhaps the test should depend on true consensus -- if large portions of the
Internet community (including constituencies to which I belong)
appropriately question ICANN's legitimacy, then ICANN should be considered
illegitimate because consensus does not exist within the Internet community
concerning its legitimacy.
6. ICANN's Uniform Dispute Resolution Policy (UDRP) stipulates that
"the complainant shall select the [dispute resolution] Provider from
among those approved by ICANN by submitting the complaint to that
Provider." Is this an appropriate way to assign resolution providers
Absolutely not. I have railed against this since the start of the UDRP
process. Thuis assignment process basically means that each provider must
court the favor of Comaplainants in order to secure any business. They have
no incentive to treat Complainants and Respondents with equal respect.
Such an obvious defect in the UDRP should have been spotted innediately and
ICANN has no excuse for permitting such an abomination to come into
operation. The reason that the UDRP was adopted in its present form is
because trademark owners insisted upon the establishment of a
tradmark-favorable biased kangaroo court, rather than an impartial
7. ICANN often mentions its limited resources as a decisive factor in
justifying various actions -- in other words, there seems to be a
serious disjuncture between ICANN's means and its goals. Has this cast
doubt on the results of ICANN's activities to date?
What you seem to be saying is that ICANN, despite the claim it lacks
resources to accomplish much, seems to be embarking on some rather ambitious
projects. This seems to be correct. ICANN's level of ambition to embark on
new projects appears to correspond directly to the level of interest of the
constituencies that have captured ICANN (trademark owners and domain name
registrars) to skew the rules in their own favor.
8. The law firm Jones, Day, Reavis, and Pogue has played a huge role
in ICANN, mainly through Joe Sims, ICANN's Chief Counsel, and Louis
Touton, ICANN's Vice-President, Secretary, and General Counsel. Sims,
with JDRP since 1978, was intimately involved in crafting ICANN's
bylaws and selecting the initial boardmembers; he remains a cental
figure at board meetings. Before joing ICANN, Touton spent the last 18
months of his 18-year practice at JDRP as a legal advisor involved in
ICANN's formation, registrar-accreditation and dispute-resolution
policies, and the NSI/DoC/ICANN agreements. Is it appropriate for an
organization such as ICANN to be so closely aligned to a single law
No. Nor is it appropriate for any other law firm that is hugely influential
within ICANN and/or WIPO to have such a degree of influence.
9. ICANN may soon be a kingmaker, with the power to delegate the
administration of new top-level domains. This will almost certainly be
a multibillion-dollar business. Is an adequate system of checks and
balances in place to ensure that ICANN's officers and staff do not
abuse or exploit this power?
No. In fact, the process seems to be set up right now in such a way as to
maximize the likelihood of abuse.
10. Based on ICANN's actions to date, should participants in the
Membership At Large, specifically, and netizens, generally, trust
ICANN to honestly report the election's outcome?
ICANN will probably count the votes correctly. The real problem is that the
elections have been set up since the beginning to prevent the Membership At
Large from accomplishing anything of substance, even after the elections.
Basically, the election is a farce to create the illusion of democracy
without any of the inconvenient side-effects (for the people who run ICANN)
of actually operating the process in a truly democratic way.